Currie v. Fowler

• Decision Date: 20 December 1830
• Citation: 28 Ky. 145
• Parties: Currie, & c v. Fowler,
• Court: Kentucky Court of Appeals

28 Ky. 145

Currie, & c v. Fowler,

Court of Appeals of Kentucky.

December 20, 1830

Purchaser. Lis Pendens. Heirship. Evidence. Tax. Land. Sales of Land for Tax.

APPEAL FROM THE BOONE CIRCUIT; H. O. BROWN, JUDGE.

Wickliffe and Woolley and Chinn, for appellants.

Crittenden T. Crittenden and Richardson, for appellee.

OPINION

UNDERWOOD JUDGE:

This is an action of ejectment instituted by Fowler's lessee against the appellants. Verdict and judgment for the plaintiff. Motion for a new trial overruled. Various exceptions taken and the cause brought up for revision. The questions made in the court below are numerous and the errors assigned present all of them which were decided against the appellants. They will be disposed of with the more clearness by tracing the titles of the parties litigant from their origin. The foundation of the claim of Fowler is a patent for fifteen thousand acres to John Tibbs and Thomas Young as tenants in common, dated in December, 1785. The patent describes the land as lying " near the heads of the west fork of Banklick creek." Fowler claimed an interest to the extent of two thousand five hundred acres in the tract aforesaid, by the followings deeds.

1st. A deed from William Reddick, bearing date the 21st of April 1802, in which Reddick as late sheriff of the county of Campbell, purports to convey two thousand five hundred acres of land to Fowler and which, according to the boundary mentioned in the deed was laid off on the east end of the tract of fifteen thousand acres.

The grounds on which Reddick undertook to make this deed as sheriff are, that the auditor, in 1798, transmitted to him a list of lands owned by delinquents, in which there was a tract mentioned of five thousand acres as the property of Willoughby Tibbs, situated in the then county of Campbell, on Bank Lick, upon which tract there were taxes due, and in arrears for 1792, 3, 4, and 5, amounting to £ 8 5s. 5d in order, that he, as sheriff, might make out of the sale thereof, the sums due as aforesaid, that in pursuance of law he advertised said land for sale, and on the 10th of October, 1798, sold two thousand five hundred acres of said five thousand to Fowler, " to be laid off at the upper end of the five thousand acre tract," no one offering to pay the taxes due for less land, that the two thousand five hundred acres so sold, had been been surveyed according to law and bounded, and that the said £ > > > > > 8 5s. 5d. had been paid, wherefore, he conveys, & c.

2d. A deed from Thomas Young to Humphrey Marshall, dated the 10th of January, 1814, by which Young conveys all his interest in the tract of fifteen thousand acres, whether divided or undivided.

3d. A deed from Humphrey Marshall to John J. Marshall, dated the 25th of January, 1815, in which said Humphrey recites, that he acquiesced in a division of the tract of fifteen thousand acres, which had been made, whereby the southern half became the separate property of his vendor, Young; that he had conveyed to Thomas A. Marshall before his purchase from Young, so much of a tract of thirty-five thousand five hundred and seventy acres derived from Fishback and Morgan, as lay within the survey of ten thousand acres, in the name of Isaac Milcher and that there was an interference between the part of the thirty-five thousand five hundred and seventy acres so conveyed to Thomas A. Marshall, and the land which said Humphrey had obtained from said Young. After making these recitals, the deed conveys to John J. Marshall all that part of said Humphrey's half of the fifteen thousand acres not embraced by the conveyance to Thomas A. Marshall.

4th. A deed from John J. Marshall to Jacob Fowler, the lessor of the plaintiff, dated the 17th of February, 1824, which only conveys such interest as John J. Marshall has under the claim of Young, to the two thousand five hundred acres included in Reddick's deed. There is also a deed presented in the record from Humphrey Marshall to John J. Marshall, bearing date the 5th of August, 1812, by which said Humphrey conveys, to said John " all the land to which the said Humphrey had any title in law or equity by deed and not heretofore sold by contract in writing, lying in Boone and Campbell counties, amounting to twelve thousand acres."

A reference is made to the title papers for a more particular description of the lands conveyed; but where the title papers were to be found, and in whose names they originally stood, is not said. This deed can not operate upon the controversy for any thing which appears in the record. There is nothing to show that H. Marshall had any interest in the land which Young conveyed to him in 1814, at the time this deed was executed. Fowler's attempt to connect himself with the patent to Tibbs and Young, through the Marshalls, is therefore not aided by H. Marshall's deed to J. J. Marshall executed in 1812, and the validity of his title depends entirely upon the other deeds noticed. As the plaintiff in ejectment must succeed upon the strength of his own title we shall proceed to enquire how far Fowler has succeeded in showing that he has title, before noticing the grounds of defense relied on by the appellants.

We think it perfectly clear that Fowler has no title to any part of Young's moiety of the fifteen thousand acres, which can operate upon the land in controversy in the present aspect of the cause. The land claimed by the appellants, is the tract of ten thousand acres surveyed in the name of Isaac Milcher. The patent under which they endeavored to protect themselves, was founded on this survey. Now, H. Marshall conveyed a part of the land lying within this survey to Thomas A. Marshall, to wit: the part covered by the claim of Fishback and Morgan, and this land is expressly excepted in the conveyance made by him to J. J. Marshall. The deed to Thomas A. Marshall is not exhibited, nor is there any thing to show that the land thus excepted, is not the identical land covered by Reddick's deed to Fowler, south of the division line between Tibbs and Young, recognized by Marshall.

If it be the same land, then H. Marshall never conveyed it to J. J. Marshall as is shown by the terms of his deed. Whether it be the same or not, it was the duty of the lessor of the plaintiff to show and as he has not done so, it can not be said that he has made out any title to the land in controversy under Young through the Marshalls.

But if it were conceded that the deed from H. Marshall to J. J. Marshall covered the land in controversy still Fowler's title, so far as it depended upon that deed would be unavailing; because the suit in chancery asserting the superior equity derived from Milcher's entry was instituted against H. Marshall and he had answered the bill before his deed to J. J. Marshall was executed. A final decree was obtained against H. Marshall, and he, in pursuance thereof, relinquished all his interest in the interference to a part of the appellants, before the trial in this case.

J. J. Marshall was, therefore, a lis pendens purchaser and as such, his deed was void or at least subject to be avoided by the result of the chancery suit; see II Maddox, Chancery, 189, and the authorities referred to.

Deed to a lis pendens purchaser is subject to be avoided by the result of the pendant suit.

Whether the lessor of the plaintiff exhibited any title derived from John Tibbs the co-patentee with Young, is the next subject for enquiry in the investigation of his title. The only direct and positive proof of the death of John Tibbs was excluded by the court. There was evidence that Willoughby Tibbs, was the brother of John and was reputed to be his heir. The evidence conduced to show, that John Tibbs had no sister and no brother except Willoughby, but nothing is said about John dying childless. The facts should be proved from which the court, and jury, under the law, might be able to declare who was the heir. Witnesses ought not to be permitted to depose who the heir is or who he is reputed to be; for in so doing, they undertake to decide the law. The evidence of ...