Elam v. Alexander

• Citation: 174 Ky. 39,191 S.W. 666
• Parties: ELAM v. ALEXANDER ET AL.
• Decision Date: 16 February 1917
• Court: Court of Appeals of Kentucky

191 S.W. 666

174 Ky. 39

ELAM v. ALEXANDER ET AL.

Court of Appeals of Kentucky.

February 16, 1917

Appeal from Circuit Court, Carter County.

Action by Andy Alexander and others against W. P. Elam. Judgment for plaintiffs, and defendant appeals. Affirmed.

Theobald & Theobald, of Grayson, for appellant.

R. C Littleton and G. W. E. Wolfford, both of Grayson, for appellees.

SETTLE C.J.

This appeal brings to us for review a judgment of the Carter Circuit Court, which quieted the title asserted by the appellees Andy Alexander and others to a 45-acre tract of land lying on Four Mile creek in Carter county, subject to the life estate of their father, Jack Alexander, therein, and enjoined the latter from selling the land as his own. The action was brought in equity by the four appellees as the children and only heirs at law of Mary E. Alexander deceased, against Jack Alexander, her husband, to obtain the relief granted them by the judgment. It was, in substance alleged in the petition, as amended, that their mother, Mary E. Alexander, died 2 or 3 years before the institution of the action, intestate, leaving no estate of consequence except the tract of land mentioned, upon which she then resided, and was in the actual possession; that at her death the title to the land fell to appellees by inheritance under the statute of the state controlling the descent of real property, subject to the interest of their father therein, which, by virtue of a further statute of the state, in force at the time of his marriage to their mother and when the latter acquired the land in question, is a life estate in the whole as tenant by curtesy. It was also alleged in the petition, as amended, that appellee's mother, Mary E. Alexander, acquired the 45 acres of land 25 or 30 years ago as a gift from her mother, Mrs. Artie Littleton, who obtained it from the appellant, W. P. Elam, by exchanging to him therefor a tract of land on Little Run creek in Carter county, belonging to her; that upon making this exchange Mrs. Littleton put her daughter, Mary E. Alexander, in possession of the land received in the exchange from Elam, and Elam took possession of the land on Little Run received by him by the exchange; that the exchange of lands thus made was in parol and no deeds were thereafter passed between the parties, but that from the time Mary E. Alexander, immediately following the exchange, was placed by her mother in possession of the 45 acres of land thereby obtained from Elam down to the time of her death, which occurred between 25 and 30 years later, she continued in, and held, the actual possession of the land, claiming the same to a well-defined, marked boundary, adversely to the appellant and all others; that appellees' father, Jack Alexander, since their mother's death and shortly before the institution of their action, has repeatedly and often proclaimed that they own no interest whatever in the land left by their mother; that it belongs to him and it was his purpose to sell it upon receiving a promised deed thereto from the appellant, W. P. Elam, whom he declared to be the holder of the title to the land. These statements of Jack Alexander, it was further alleged, constituted slander of appellee's title and cast a cloud thereon; hence such statements, together with his continued threats and persistent efforts to sell the land, were urged in the petition as grounds for the injunctive and other relief asked in the prayer thereof.

The answer of the defendant, Jack Alexander, denied appellees' title, alleged that the title to the land was in the appellant, Elam, and that his and his wife's possession thereof was as tenants of Elam. The latter, by intervening petition, was made a party to the action. By this pleading which was treated as his answer, Elam traversed the allegations of the petition, as amended, set up title in himself to the land, and asked for its possession. All affirmative matter of his petition and answer, as well as that of the answer of Jack Alexander, was controverted by the appellees' reply. Jack Alexander does not join in the appeal taken from the judgment.

We find from an examination of the evidence contained in the record that its weight establishes, as claimed by appellees, the exchange 25 or 30 years ago of lands between Mrs. Artie Littleton, appellees' grandmother, and the appellant, Elam. The deposition of Mrs. Littleton is in some respects indefinite respecting the particulars of the transaction, owing, doubtless, to her extreme age. But it is positive and clear as to the fact that the exchange of lands was made; that is, that she exchanged a tract of land on Little Run creek owned by her for the tract on Four Mile creek owned by appellant; that the exchange was made that she might give the land on Four Mile creek to her daughter, Mary E. Alexander, appellees' mother; that it was made at the instance of her son-in-law, Jack Alexander, husband of Mary E. Alexander, and a brother-in-law of appellant, and the transaction was negotiated and consummated by him as her agent. The testimony of Mrs. Littleton is also clear as to the further facts that her daughter, Mary E. Alexander, accompanied by her husband, Jack Alexander, immediately settled upon and took possession of the land on Four Mile creek, and continued in the actual, adverse possession thereof for more than 25 years and down to the time of her death; also that, immediately following the exchange, she surrendered to the appellant, Elam, possession of the tract of land on Little Run creek received by him in the exchange made with her, and that he thereupon took possession of same. It does not appear from her testimony, or from that of any other witness in the case, how long appellant remained in possession of the Little Run land or what disposition was made of it by him, but does appear from the evidence that neither Mrs. Littleton nor any one claiming under her ever had possession of the Little Run land after its surrender to appellant, or asserted claim thereto.

The foregoing testimony of Mrs. Littleton is corroborated by that of the witnesses A. J. Littleton, Wm. Littleton, and J. T. Littleton, and is contradicted only by the testimony of the appellant, Elam, and Jack Alexander. The witnesses A. J., Wm., and J. T. Littleton, in addition to their corroboration of Mrs. Artie Littleton as to the matter of the exchange of lands between her and the appellant, testified fully as to the possession by Mary E. Alexander of the tract of land on Four Mile creek down to the time of her death; that such possession was actual and to a well-defined, marked boundary surrounding the land; that it continued for 25 or more years and was adverse to the appellant and all others. Moreover, such possession of Mary E. Alexander of the character, and covering the time, indicated was also shown by the testimony of the appellee, Andy Alexander, Mont Hunter, and John Artist, the last two being in no way related to the parties to the action. It does appear from the testimony of these witnesses, or some of them, that after Mary E. Alexander and her husband had resided upon the land in question for 17 or 18 years continuously, they temporarily removed therefrom to Big Run creek, where they remained about 3 years, but that during part of this interval of 3 years the appellee, Andy Alexander, was in possession of the Four Mile creek tract of land, as a renter thereof and her tenant, and that it was, a part of the time, cultivated by others under her control; that at the end of the 3 years she and her husband returned to the land and lived thereon until her death.

It thus appears from the evidence that her actual, adverse possession of the land in controversy from the time it was given her by her mother down to the time of her death was unbroken and uninterrupted.

Several of the above-named witnesses also testified to declarations made at various times both by Mary E. Alexander and her husband, Jack Alexander, in the presence of each other, while ...