Combs v. Combs

• Decision Date: 17 February 1931
• Citation: 238 Ky. 362,38 S.W.2d 243
• Parties: COMBS et al. v. COMBS.
• Court: Kentucky Court of Appeals

38 S.W.2d 243

238 Ky. 362

COMBS et al. v. COMBS.

Court of Appeals of Kentucky

February 17, 1931

Rehearing Denied May 26, 1931.

Appeal from Circuit Court, Knott County.

Suit by Jerry Combs against Andy Combs and another, with a counterclaim by defendants. Judgment for plaintiff, and defendants appeal.

Affirmed.

Bailey P. Wootton, of Hazard, for appellants.

S. M Ward, of Hazard, and H. H. Smith, of Hindman, for appellee.

CLAY J.

Alleging that he was the owner and in possession of a certain described tract of land on Troublesome creek in Knott county Jerry Combs brought this suit against A. J. Combs and Kin Gibson to quiet his title. The defendants filed an answer and counterclaim denying the allegations of the petition, and asserting title to a portion of the land, and asked that their title be quieted. On final hearing, the judgment was rendered in favor of plaintiff, except as to a small portion of the land of which the defendants had adverse possession and the defendants appeal.

The land in controversy is on the head of Shop Hollow of the Clear Fork of Troublesome creek. Appellee claims title under a 500-acre survey issued to John L. Combs on July 14, 1848. After obtaining a title bond from Shade Combs, Shade Combs died. In an action on the title bond against his heirs, a deed was executed to appellee by the commissioner in 1898. Though no deed was shown from John L. Combs to Shade Combs the evidence disclosed that appellee for more than 30 years had been living within the boundary, which was well marked and defined, and had been claiming to the full extent thereof.

Appellant claims under a 400-acre survey made in the name of Alex Walker on August 14, 1849, and a 150-acre survey also in the name of Alex Walker made on January 14, 1851, and that he and those through whom he claimed had been in the actual adverse possession of the land for more than 30 years. The further defense was made that an agreed line along the ridge between Troublesome Creek and Shop Hollow was established by Shade Combs, appellee's grantor, and Sam Combs, appellant's grantor, and that this line had been lived up to and acquiesced in for over 30 years.

The first point made is that, in order for appellee to maintain the action, it was necessary for him to show both title and possession, and that he failed in this respect, in that no deed from John L. Combs, the patentee, to Shade Combs was shown. Not only is it the rule that title by adverse possession is sufficient to sustain an action to quiet title, Le Moyne v. Hays, 145 Ky. 415, 140 S.W. 552, but it is also the rule that where, as here, the defendant himself asserts title by answer and counterclaim, and asks for affirmative relief, the court will consider the entire evidence and pass on the question of superiority of title. Osborn v. Osborn, 204 Ky. 144, 263 S.W. 738.

The further point is made that the court erred in not giving effect to the agreed line established by the grantors of the present claimants. There appears in the record a writing dated September 15, 1876, by which Shadrick Combs and Samuel Combs agreed that the top of the ridge should be the conditional line between them. Though signed by three witnesses, the agreement was not signed by Shade Combs or Samuel Combs. Not only does the fact that the writing was not signed by the parties indicate that they had failed to agree, but there is additional evidence that the agreement was never made and carried into effect by the parties. In the circumstances, the chancellor did not err in holding that the agreed line had never been established and acquiesced in by the parties or their successors in title.

But appellant contends that the John L. Combs survey does not cover the land in...