Elk Horn Coal Corp. v. Jacks Creek Coal Co.

• Decision Date: 27 October 1931
• Citation: Elk Horn Coal Corp. v. Jacks Creek Coal Co., 240 Ky. 769, 43 S.W.2d 13 (Ky. Ct. App. 1931)
• Parties: ELK HORN COAL CORPORATION v. JACKS CREEK COAL CO. et al.
• Court: Kentucky Court of Appeals

43 S.W.2d 13

240 Ky. 769

ELK HORN COAL CORPORATION v. JACKS CREEK COAL CO. et al.

Court of Appeals of Kentucky

October 27, 1931

Appeal from Circuit Court, Floyd County.

Action by the Jacks Creek Coal Company against the Elk Horn Coal Corporation and others, in which defendant named filed a cross-petition, and the other defendants filed answer and counterclaim.From the judgment, defendant named appeals.

Affirmed in part, and reversed in part.

J. W Howard and W. P. Mayo, both of Prestonsburg, and E. C O'Rear and Allen Prewitt, both of Frankfort, for appellant.

B. F Combs and A. B. Combs, both of Prestonsburg, Geo. B. Martin, of Catlettsburg, and H. H. Smith, of Hindman, for appellee.

HOBSON C.

The Jacks Creek Coal Company brought this action against the Elk Horn Coal Corporation, W. F. Hite, and Justus Collins, alleging that it owned all the coal and minerals in the tract of land described in the petition, under a lease made by Hite and Collins to it; that the Elk Horn Coal Corporation was claiming to own the land, and was threatening to remove the minerals.It prayed that its title be quieted and for all proper relief.The Elk Horn Coal Corporation filed an answer in which it denied the title of the Jacks Creek Coal Company and set up title in itself to so much land as it claimed and prayed that its title be quieted.It made its answer a cross-petition against Hite and Collins, and prayed judgment also against them.Hite and Collins filed an answer and counterclaim against the Elk Horn Corporation.The controversy involves the title to five parcels of land: (1) The Nancy Hall 50-acre patent; (2) the Williams Mullins 100-acre survey; (3) 30 acres of adjacent unpatented land; (4) a tract of 5.30 acres; (5) one-fifth of a tract known as the David J. Mullins home farm.

The circuit court gave judgment in favor of the Jacks Creek Coal Company and Hite and Collins as to all five tracts.The Elk Horn Coal Corporation appeals.

The controversy as to each parcel will be stated and disposed of separately.

1.The Nancy Hall 50-Acre Patent.The patent was issued to Nancy Hall in 1855.The survey was about 600 feet wide, and extended up Dog Branch beginning about 600 feet from the mouth of the branch.Nancy Hall erected a house and other improvements on the survey, and cleared and inclosed a portion thereof.She sold the land to Lewis Hall, who lived upon it, but who had no deed or written contract, so far as shown by the record.Lewis Hall sold the land to Wm. Adams, and Nancy Hall made conveyance of the boundary to Wm. Adams in 1877.Two years later Wm. Adams sold and conveyed the land to W. R. Hall, Jr., who moved into the house thereon, extended the clearings, and built more fences.He testified that he claimed to own all the land upon Dog Branch, but his deed called for only 50 acres and followed the patent calls.In 1893 W. R. Hall, Jr., sold the land to David J. Mullins and made a conveyance to him.Mullins immediately moved upon the land, and lived there until he died.By his will he devised it to his wife and infant children, who maintained the possession.Three or four years after David J. Mullins moved upon the Nancy Hall patent, he directed his son, William Mullins, to clear some land in the head of the creek outside of the boundaries of the Nancy Hall patent, although a part of the clearing made by William Mullins overlapped a small part of the Nancy Hall patent at the corner.

It is argued that the deed from W. R. Hall, Jr., to David J. Mullins made in 1893 was void for uncertainty of description.The land was described in that deed as follows:

"As certain tract or parcel of land lying and being in the County of Floyd and State of Kentucky, and said land is lying on Jacks Creek on Left Beaver Creek, to-wit:

Beginning on a beach stump running the side of the ridge; thence running around with said survey as said patent calls for back to the beginning."

Whether the description was technically sufficient to identify the land conveyed, we deem it unnecessary to determine, for all uncertainty was removed by the possession taken by David J. Mullins, which furnished notice of his title and claim, and constituted an adverse holding of the patented boundary not only to Hall, but to all the world.Whittaker v. Farmers' National Bank,237 Ky. 596, 36 S.W.2d 18;Chrisman v. Greer,239 Ky. 373, 39 S.W.2d 676;Overstreet v. Rice, 4 Bush 1,96 Am. Dec. 279;Shive v. Janes,168 Ky. 575, 182 S.W. 602;East Tenn. Tel. Co. v. City of Frankfort,141 Ky. 590, 133 S.W. 564.

This court in Russell v. Tipton,193 Ky. 310, 235 S.W. 763, 765, said: "But it is insisted that the description in the title bond is too vague and indefinite.Whether the description would be regarded as sufficient if the contract had remained executory, it is unnecessary to decide.Here the contract was executed by the vendee's taking possession under the contract and holding the land with the acquiescence of the vendor.That being true, the subject-matter of the contract was made certain by the acts of the parties, and the contract is not void because the description was not sufficient.Overstreet v. Rice, 4 Bush, 1,96 Am. Dec. 279;Ferguson v. Cabell, 141 Ky. 499, 133 S.W. 539."

The devisees of David J. Mullins were in possession of the Nancy Hall patent when the vendor, W. R. Hall, Jr., made the deed of May 26, 1903, upon which the appellant relies, and, in so far as that deed purported to cover any part of the Nancy Hall patent, it was void because of the fact that the Mullins devisees were at the time the owners of the Nancy Hall 50 acres and in adverse possession thereof.Kentucky Statutes, § 210;Tennis Coal Co. v. Hensley,198 Ky. 616, 250 S.W. 509;War Fork Land Co. v. Carr,236 Ky. 453, 33 S.W.2d 308;Pioneer Coal Co. v. Asher,226 Ky. 488, 11 S.W.2d 116;Begley v. Erasmie,205 Ky. 240, 265 S.W. 833.Hence the circuit court ruled correctly in adjudging the Nancy Hall 50-acre patent to the appellees.

2.The 100-Acre Survey of William Mullins, Patented to W. R. Hall, Jr.In 1897William Mullins, the son of David J. Mullins, with the consent of his father, or by his direction, went to the head of Dog Branch and outside of the Nancy Hall patent where he made a clearing, built himself a house, dug a well, and set out some apple trees.The clearing covered a small corner of the Nancy Hall patent.While he was living there in 1898, his father died.By his will David J. Mullins devised his home place to his wife and infant children.Prior to 1901William Mullins had a survey made of 100 acres of land, including his house and clearing at the head of Dog Branch.After the survey was made, he assigned it to W. R. Hall, Jr., and Hall received the patent.It lapped to a considerable extent on the Nancy Hall patent.Mullins some years later moved from the house where he was then living down to the lower end of the 100-acre patent, and lived there for some years.In this condition of things, on May 26, 1903, W. R. Hall, Jr., who owned a large body of other land near the head of Dog Branch, conveyed with general warranty to the Northern Coal & Coke Company the minerals under all his land at the price of $3.50 an acre, the total consideration being $4,323.20.He included in the deed all the land on Dog Branch.The Elk Horn Coal Corporation is a subvendee under the Northern Coal & Coke Company.This deed included in the description the 100-acre survey made in the name of William Mullins, which was afterwards patented in the name of W. R. Hall, Jr., and all other land on Dog Branch.On July 21, 1909, William Mullins, in consideration of $250, made a deed to Hall for the 100 acres covered by his survey and, in 1907 his mother and brothers and sisters executed to W. R. Hall, Jr., a deed for all the land lying on Dog Branch.In 1916 Hall sold this land to W. F. Hite.Hite sold half of it to Collins, and the two later leased it to the Jacks Creek Coal Company.

The question for determination is the validity of the Wm. Mullins 100-acre patent and of the deed made by W. R. Hall, Jr., on May 26, 1903, to the Northern Coal & Coke Company, in so far as that 100 acres is concerned.

The appellees insist that the patent was void as a whole because William Mullins was a tenant of David J. Mullins, and could not attorn to a stranger or take out a patent for any of the land claimed by David J. Mullins or his devisees.Kentucky Statutes, § 2296;Hardwick v. Karn,111 S.W. 293, 33 Ky. Law Rep. 776;Holton v. Jackson,184 Ky. 559, 212 S.W. 587;Williams v. Thompson,80 Ky. 325;Moore v. Brandenburg,234 Ky. 400, 28 S.W.2d 477;King v. Hill,108 S.W. 238, 32 Ky. Law Rep. 1192;Trabue v. Ramage,80 Ky. 323.

They also insist that the patent issued to W. R. Hall on the Wm. Mullins survey was a mere security for debt, and, since the adverse possession of William Mullins and the devisee of David J. Mullins continued beyond the date of the deed made by Hall in 1903, the deed was void under the champerty statute to the extent it covered land in adverse possession, and, when Hall subsequently acquired title to the land, it did not inure to his grantee in the void deed.Altemus v. Nickell,115 Ky. 506, 74 S.W. 221, 24 Ky. Law Rep. 2401, 103 Am. St. Rep. 333;Colson v. Johnson,208 Ky. 684, 271 S.W. 1033;War Fork Land Co. v. Carr,236 Ky. 454, 33 S.W.2d 308.

Obviously, the patent issued to Hall on the Wm. Mullins survey was void in so far as it lapped on the prior patent to Nancy Hall.The older patent prevails, and the patented land was in the adverse possession of the devisees of David J. Mullins when the 100-acre patent was issued.Crider v. Crum,233 Ky. 414, 25 S.W.2d 1009.

It may be that the devisees of David J. Mullins could have held the lands outside of the Nancy...