Combs v. Thomas

• Decision Date: 14 February 1947
• Citation: 304 Ky. 654,201 S.W.2d 557
• Parties: COMBS et al. v. THOMAS et al. MOORE et al. v. COMBS et al. COMBS et al. v. MOORE et al.
• Court: Kentucky Court of Appeals

201 S.W.2d 557

304 Ky. 654

COMBS et al. v. THOMAS et al.

MOORE et al. v. COMBS et al.

COMBS et al. v. MOORE et al.

Court of Appeals of Kentucky

February 14, 1947

Rehearing Denied May 20, 1947.

Appeal from Circuit Court, Perry County; Roy Helm, Judge.

Suit to quiet title by Mary Thomas and others against Mary Combs and others. Robert B. Combs and others intervened. Many of the original parties died or disposed of their interests and their heirs and grantees were substituted. From the judgment R. B. Combs and others, Mary Moore and others, and S. B Combs and others appeal.

Affirmed.

A claimant to land under patent is not estopped from claiming under patent by reason of having taken deeds from persons claiming under different chain of title for purpose of removing cloud on claimant's title under patent or to buy peace and to protect his possession under patent from adverse claimants under a different chain of title.

A grantee of life tenant and purchaser of interest of two of the seven remaindermen was estopped to question life tenant's title or the remainder interest.

J. B. Eversole, of Richmond, for R. B. Combs et al.

Wm Lewis and Ray C. Lewis, both of London, and I. A. Bowles, of Hazard, for G. C. Thomas et al. and Mary Moore et al.

Barney W. Baker and Jesse Morgan, both of Hazard, for Mary Combs et al. and S. B. Combs et al.

STANLEY Commissioner.

This suit was begun in April, 1929, by Mary Thomas and six other children of Preston Eversole against the widow and children of D. Y. Combs to quiet title to 400 acres of land in Perry County on the waters of Big Creek and in the watershed of Ben's Branch. It was part of the land conveyed to Preston Eversole by his father, Woolery G. Eversole, on February 5, 1878. The D. Y. Combs family claimed title through mesne conveyances from Preston Eversole by his deed to Dock Fields, September 17, 1888. We reversed a judgment dismissing the petition on demurrer in Thomas v. Combs, 259 Ky. 93, 82 S.W.2d 188, construing the deed of Woolery G. Eversole as granting only a life estate to Preston with remainder to his heirs. With this source of title knocked out, the claims were rested on original grants from the Commonwealth. Subsequently many issues were raised as to superiority of patents and conflict in boundaries. Also as to adverse possession. A third group of parties, headed by Robert B. Combs, intervened in June, 1941. They claimed title as the heirs of William B. Combs who died in 1865.

Through the years the case was on the docket, many of the original parties died or disposed of their interests and their heirs and grantees were substituted. Preston Eversole also died, although he was never a party to the suit. He had given a deposition, however. D. Y. Combs' family conveyed part or all of their interest in the land to S. B. Combs in 1930, so he has proceeded with the lawsuit he thereby purchased. Notwithstanding these changes and because of the number of them, in the interest of conciseness, we shall refer to the three respective groups as Eversole Heirs, D. Y. Combs Heirs and Grantees, and William Combs Heirs.

Judgment went for Eversole Heirs except a 2/7ths interest covered by conveyances which two of them had made to D. Y. Combs, and which was awarded to D. Y. Combs Heirs and Grantees. The William Combs Heirs were dismissed without anything. The court located the boundaries and described 267 acres which, as we understand, it was eventually disclosed the tract contained. (The surveys, however, show the area to contain 255.98 acres.) Three different appeals have been consolidated. Although the submission of the case has twice been set aside with directions to the attorneys for all parties to re-brief it in accordance with the rules of the court, none of them have done so in a satisfactory manner or in a way that would be more helpful to an understanding of a confusing record. Counsel for Eversole Heirs completely ignored both orders. The Points and Authorities in all the several briefs are nothing more than general indexes with citations of cases. Rule 1.340 calls for 'a concise statement of classification of the questions discussed * * * separately and clearly stated with the authorities relied upon subjoined.' These statements should be something more than an index to the brief and more than mere abstract or conclusory statements of the writer's contentions with respect to the facts and law. Each should be so formulated that it states enough of the factual setting to indicate that the legal conclusion or contention has merit. The syllabi of an opinion are quite analogous, and generally may serve as a pattern. The same rule, 1.340, requires 'exact reference' in briefs to pages of the record supporting concise statements of pleadings and facts in issue and the arguments relating to them. This rule has not been followed in all the briefs. The court ought not to have to grope in the dark through a record or a brief (sometimes misnamed literally) that has no classification or indication of the contentions. Doubtless if counsel for Eversole Heirs had observed the rules and the orders of this court they would have discovered that the amended petition referred to in their brief as claiming ownership of 256 acres was not filed and is not in the record. Most of their original brief is anticipatory of arguments to be made by their adversaries, some of which did not appear.

The case involved the interpretation and location of five surveys and patents, viz.: (1) to Robert Williams, 50 acres, December 2, 1825; (2) to J. H. Duff, 100 acres, June 28, 1843; (3) to William B. Combs, 600 acres, July 15, 1846; (4) to Jackson Combs, 3,500 acres, August 9, 1846; and (5) to Woolery G Eversole, 1,500 acres, August 18, 1847. Several other patents were brought into the case, some apparently without relevancy unless for the purpose of multiplying the confusion. It is manifest that part of the land in dispute was covered by the five different patents. Differences in the maps and testimony of the surveyors cannot be reconciled by us. The most westerly point on the Woolery Eversole patent is Farler or Farley Gap, a long way from the land in dispute, but it seems to be a key corner. Just where or what is this Gap, referred to in the original survey, is not certainly known in local tradition or geography. The Circuit Court analyzed the evidence and found the Gap to be at the end of the 21st and the beginning of the 22nd call of the Woolery Eversole 1,500 acre patent. He was of opinion that in the original survey the lines were run from the beginning point to the Gap and that the other staked lines back to the beginning were merely projected. Applying legal rules for surveying or interpreting surveys (Chambers v. Tharp, 93 S.W. 627, 29 Ky.Law Rep. 270) the court found this would require a revision of the recent surveys upon which D. Y. Combs Heirs and Grantees and the...