Cooper v. Williamson
| Decision Date | 11 March 1921 |
| Citation | 191 Ky. 213 |
| Parties | Cooper, et al. v. Williamson, et al. |
| Court | Kentucky Court of Appeals |
Appeal from Pike Circuit Court.
R. H. COOPER, STRATTON & STEPHENSON, ROSCOE VANOVER and C. M. WHITT for appellants.
J. J. MOORE and S. D. STOKES for appellees.
The superiority of title to a tract of sixty-three acres of land is the single issue presented by this appeal. Both sides to this controversy claim under a patent from the Commonwealth to Henry Smith, dated July 8, 1850, but here their respective claims diverge.
Appellees' title. After patentee's death suit was filed by his administrator for a settlement of his estate; in this suit the property involved was sold by the master commissioner under order of court and Benjamin Williamson became the purchaser. The commissioner's deed dated October 9, 1854, was recorded September 12, 1857. By his will dated April 21, 1877, and probated in February, 1879, this land was devised by testator, (Benjamin Williamson), to his grandson, Kenna Williamson. The latter died intestate and the land passed under the statute to his father (Benjamin Williamson, Jr.) and mother (Parlee Williamson). The father died leaving as his survivors his wife and several children, all of whom as plaintiffs below are appellees here.
Appellants' title. The chain of title relied upon by appellants consists of several links, starting with a title bond purporting to have been executed by Henry Smith to T. J. Owens, February 12, 1850, for the recited consideration of one rifle gun, and then by successive assignments to appellant. Of the three assignments but two appear on the original paper which is in the record. In addition to the foregoing appellant relies (a) upon an agreement between J. E. Goosling (one of the intermediate title bond holders) to the Cooper Coal & Iron Company; (b) commissioner's deed dated September 28, 1918, in suit instituted by appellants against the heirs of Henry Smith; (c) deed dated October 28, 1886, and recorded October 6, 1914, from T. J. Owens and wife to John Goosling (another title bond holder), and his son J. E. Goosling; and (d) deed dated January 23, 1917 from J. E. Goosling and wife to appellant R. H. Cooper.
We will take up the different points discussed by counsel without regard to the order in which they are presented, or by whom made and thus through the process of elimination reach the question at issue, viz., which side exhibits the better title.
1. Invalidity of the deed from Jackson commissioner to Benjamin Williamson. This deed fails to show it was examined and approved by the court, as required by Civil Code, sec. 398, which provides:
"A conveyance by a commissioner shall not pass any right until it has been examined and approved by the court — which approval shall be endorsed on the conveyance, and recorded with it."
In Helton v. Belcher, 114 Ky. 172, 70 S. W. 295, it was held this Code provision must be followed, but the failure of the judge to endorse his approval on the deed, as is the case here, does not invalidate the deed nor deprive it of its recordable character, where as here there is an order in the action reciting that it has been examined and approved by the court. In such cases a copy of the deed, together with a copy of the order showing the deed was produced in court and acknowledged by the commissioner, and was examined and approved by the court, is sufficient to make out a prima facie case of the regularity of the deed and to authorize its introduction as evidence of title. Kentucky Coal Lands Co. v. Smith, 149 Ky. 794, 149 S. W. 979.
2. Does the relief granted exceed that asked in or authorized by the pleadings? The prayer of the petition as amended was that the deeds of October 26, 1886, from Owens to Goosling and the one from Goosling to appellant be cancelled, that appellees be restored to their title, that certain named persons be enjoined from trespassing on the property and for all general and special relief.
In adjudging appellees to be the owners of the land, quieting them in their title, cancelling the title bond from Smith to Owens and dismissing appellants' counterclaim, it is claimed the court exceeded the relief asked for.
Excluding, for the present, the question of the answer being treated as a counterclaim, we think the court was authorized under the pleadings to grant the relief which it did. The effect of a judgment decreeing appellees to be the owners of the land and quieting them in their title, would be to cancel the title bond. Under Civil Code, sec. 90, the petition may contain a prayer for specific relief and for any other relief to which plaintiff may appear to be entitled. If no defense is made plaintiff can not have judgment for any relief not specifically demanded, but if defense is made he may have judgment for other relief under a prayer therefor. The court did no more than it was authorized to do and the objection to the judgment for this reason can not be sustained.
3. Appellees' failure to prove actual possession and their consequent inability to maintain this action.
It is conceded that in order to maintain an action of quia timet the plaintiff must have both title and possession. Ky. Stats., sec. 11; Cumberland Co. v. Kelly, 156 Ky. 397, 160 S. W. 1077.
But though the action be to quiet title to land proof of actual possession is not necessary to authorize the court to adjudge the superiority of title where defendant denies the title asserted by plaintiff and by way of counterclaim asks to be adjudged the owner of the land. Where affirmative relief is sought against plaintiff the court will consider all the evidence and pass upon the question of superiority of title. Childers v. York, 187 Ky. 332, 218 S. W. 1027; Herr, etc., v. Martin, 90 Ky. 377, 14 S. W. 356.
This raises a question as to the exact nature of appellants' pleading. In the record it is indexed as the "answer and counterclaim of Cooper," it is copied as the "answer and claim" of R. H. Cooper, the judgment dismisses the "counterclaim." The reply is to the "answer of Cooper." The original is before us, as drafted in typewriting; it was styled "Answer of R. H. Cooper." Though now almost completely erased, it appears some one had interlined "& claim" after the word answer, for the apparent purpose of making it an answer and counterclaim. Just when or by whom the interlineation and erasure were made we are not advised. While Civil Code, sec. 97, subsec. 4, provides that a defendant may not have a judgment upon a counterclaim, unless the answer is so captioned, plaintiff's right to object to a pleading for this failure is waived by replying thereto and joining issue thereon in those instances where the facts alleged are sufficient to constitute an answer a...
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