Cornett v. Moore

• Decision Date: 14 November 1906
• Parties: CORNETT ET AL. v. MOORE. HAMPTON ET AL. v. MOORE.
• Court: Kentucky Court of Appeals

97 S.W. 380

CORNETT ET AL. v. MOORE.

HAMPTON ET AL. v. MOORE.

Court of Appeals of Kentucky.

November 14, 1906

Appeal from Circuit Court, Harlan County.

"Not to be officially reported."

Actions between A. B. Cornett and others and by J. J. Hampton and others, and John Moore. From an adverse decree, Cornett and others, and Hampton and others appeal. Affirmed.

H. C Clay, for appellants, A. B. Cornett and Bennett Bailey's heirs. J. G. & J. S. Forrester, for appellants, Cornett and Bailey's Heirs. W. F. Hall, for appellants, James J Hampton and others. Isham G. Leabow, G. A. Eversole, and N B. Hays, for appellees.

LASSING J.

This is a litigation over a tract of land which was granted to H. B. Hampton by the commonwealth of Kentucky in February, 1855, as the assignee of one John Bailey, on a survey made for him in July, 1846. Said tract contains 400 acres of land in Harlan county. All of the parties to this litigation claim to have derived title, and to hold same under said patent. In February, 1898, James J. Hampton brought his suit in ejectment in the Harlan circuit court against John Moore, alleging that he was the owner of, and entitled to the possession of, the 400-acre tract in litigation; that the said Moore had entered thereon and taken possession thereof, and had wrongfully and without right held possession for about a year previous to the date of his said suit. A default judgment was taken by said Hampton at the August, 1898, term of said court, but at the February term following this judgment was set aside, as it was shown that no summons had been served upon Moore. In 1900, plaintiff Hampton filed an amended petition for himself and 19 other persons whom he named as plaintiffs, and who, he alleged, were the heirs at law of his deceased father, H. B. Hampton. In this amended petition he stated that, when his original petition was filed, he thought he was the owner of the entire tract of land, but that he could not find the deed conveying said land to him, and that the persons mentioned in his amended petition were the heirs at law of his father, H. B. Hampton, who had died intestate, the owner of said land, and that he, together with the other plaintiffs named in his amended petition, were the owners of said land, and he prayed as in his original petition.

Defendant Moore filed an answer to the petition as amended, in which all of the material allegations, including those of heirship, were traversed. He also pleaded possession for 15 and 30 years, and in an additional paragraph set up an equitable title in himself, alleging that John Bailey, Sr., had purchased the land in question from H. B. Hampton by title bond, which was delivered to him in 1863; that said John Bailey sold this land to his son, John S. Bailey, and transferred and delivered said title bond to his said son; that in 1886 John S. Bailey died intestate, the owner of said land, and that since said date the heirs at law of said John S. Bailey had sold and conveyed said land to this defendant. In August, 1902, plaintiff offered to file another amended petition, in which he states that he had found the deed, which had been duly signed, acknowledged, and delivered to him, and which he believed had been lost; that said deed vested him with the legal title to said land; that all the other plaintiffs except himself were improperly made parties to the suit, and asking that the amended petition filed in February, 1900, be stricken from the file. His motion was sustained, and the amended petition making new parties plaintiff was stricken from the file, leaving the case to be prosecuted in the name of James J. Hampton alone. In February, 1903, A. B. Cornett and the heirs of Bennett Bailey filed their petition to be made parties to the suit, claiming title to the land in controversy, and praying judgment against the heirs of H. B. Hampton for a deed for same, and a judgment against the defendant Moore, adjudging their equitable title superior to his, and that his answer be dismissed. Defendant Moore objected to the filing of this petition, but the court overruled his objection, and permitted it to be filed, and made a cross-petition against him.

The proof shows that in 1883 A. B. Cornett, Bennett Bailey and D. S. Litton filed their petition in the Harlan circuit court against H. B. Hampton, alleging that on or about the ______ day of _____, 1852, said Hampton executed to said Litton a title bond, binding himself for a good and valid consideration to execute and make to said Litton a good and sufficient deed for two tracts of land, one for 500 acres, and the other for 850 acres, in Harlan county, and stated that said Litton had signed said bond and sold said land to his coplaintiffs, Cornett and Bennett Bailey, and prayed that the title to said two tracts of land be conveyed to said Cornett and Bailey. Such proceedings were had thereon that the issues were made, proof taken, and judgment was recovered by the plaintiffs therein, in which they procured title to said two tracts of land. The title bond relied upon in this suit of 1883 is the same title bond under which Cornett and the heirs of Bennett Bailey claim the land in litigation in this suit. The defendant Moore pleaded said judgment as res adjudicata of the matters in question, and a bar to any recovery by said Cornett and the heirs of Bennett Bailey herein. Cornett and the heirs of Bennett Bailey deny that they are estopped to assert their claim to the land in contest because of said judgment, although they admit that they claim it under the same title bond described in that old suit and judgment.

In 1887 one Samuel Clay, Jr., filed his suit in the Harlan circuit court against John Robb and others, seeking to recover the land in question in this suit. John S. Bailey's heirs were parties defendant to that suit, and they...