Elkhorn Land & Improvement Co. v. Wallace

• Decision Date: 04 February 1930
• Citation: 232 Ky. 741,24 S.W.2d 560
• Parties: ELKHORN LAND & IMPROVEMENT CO. et al. v. WALLACE et al.
• Court: Kentucky Court of Appeals

24 S.W.2d 560

232 Ky. 741

ELKHORN LAND & IMPROVEMENT CO. et al. v. WALLACE et al.

Court of Appeals of Kentucky

February 4, 1930

Appeal from Circuit Court, Pike County.

Action by Logan Wallace and others against the Elkhorn Land &amp Improvement Company and others. Judgment for plaintiffs, and defendants appeal. Reversed, and new trial awarded.

Stratton & Stephenson, of Pikeville, for appellants.

J. E Childers, of Pikeville, for appellees.

WILLIS J.

William Ramey devised to his eldest daughter, Mary Potter, an estate for life in a tract of land at the mouth of Elkhorn creek in Pike county, Ky. with remainder to "the heirs of her body forever." Mary Potter died about 1873, survived by her husband, Richard Potter, and eleven children. The surviving husband took no interest, since the wife had only a life estate in the property. Parsons v. Justice, 163 Ky. 739, 174 S.W. 725. On August 9, 1874, the surviving husband and seven of the children of Mary Potter executed and delivered to George Potter a deed purporting to convey all their interests and rights of dower in the land devised to Mary Potter. The deed as to the husband conveyed nothing, but it did convey the remainder interests held by the children that united therein. Ky. Stat. § 2351. On December 31, 1879 George Potter acquired the undivided interest of James H. Potter, and on December 24, 1886, he likewise acquired the interest of Anna Green, who was a daughter of Mary Potter. George Potter then had title of record to nine-elevenths of the land by purchase and to one-eleventh thereof by the will of his grandfather. That left outstanding the one-eleventh interest of his brother John Potter. It is claimed that he acquired the interest of John Potter in 1881 or 1882. There is testimony tending to show that John Potter exchanged his one-eleventh interest in the property to George Potter for a cow and a yoke of cattle. There is also testimony that a deed was then made conveying the interest to George Potter, but that deed was never recorded, and it has not been found. Its contents were proven as a lost instrument, but the jury found against it. George Potter claimed the land, and was living upon it and exercising all the rights of ownership.

On June 22, 1889, George Potter and wife conveyed to John Church one of the tracts of land in controversy, the deed containing a covenant of general warranty. On January 20, 1891, Church and wife conveyed the property to John G. Bentley, and it is now held by one of the children of John G. Bentley, who, after the death of his father, acquired the dower of the widow and the interests in remainder of his brothers and sisters. The remaining land in controversy was conveyed by two deeds from George Potter and wife to Ferrell, Hatcher & Polly, one dated November 6, 1885, and the other January 16, 1889. Later, in 1890, it was conveyed to the Elkhorn Land & Improvement Company. The deeds from George Potter and wife contained covenants of general warranty and purported to convey the fee-simple title. They were recorded more than twenty-five years before this action was begun. George Potter and his vendees continued in the possession of the property from 1874 to this time. It was subdivided in town lots, and numerous houses were built thereon by the purchasers. A railroad company acquired a right of way through it and built a railway and depot thereon. The evidence of continuous possession is overwhelming and uncontradicted, and fully corroborated by the testimony for the plaintiffs, some of whom were hired to help construct improvements on the land. John Potter left seven children surviving him, namely, William, Richard, Levi, Tabitha, Pricey, America and Polly Ann Potter. As already stated there was no recorded instrument showing that George Potter had acquired the interest of John Potter.

It is not shown exactly when John Potter died, but it was probably in 1889, for in August of that year William Potter and wife, Richard Potter and wife, and Levi Potter and wife, three of the children of John Potter, in consideration of $50, executed a deed of conveyance to Ferrell, Hatcher & Polly, conveying to them a described boundary which was recited to include all the lands deeded to George W. Potter by Richard Potter and others, with some minor exceptions. That deed contained a covenant of general warranty. On December 9, 1914, Pricey Potter Bartley, another child of John Potter, and her husband, in consideration of $250, conveyed by a quitclaim deed to the Elkhorn Land & Improvement Company all her interest in the property in controversy. On December 17, 1914, Tabitha Potter Owens, another of John Potter's children, and her husband, in consideration of $250, conveyed to the Elkhorn Land & Improvement Company all their right, title, and interest in the property, with covenant of special warranty. This accounted for five of the children of John Potter, but the interests of America Potter and Polly Ann Potter were not separately acquired. America Potter married Sam Wallace and Polly Ann Potter married Tom Wallace, and each died leaving children. America died about September, 1892, and Polly Ann died in 1893, although the exact date is uncertain. Tom Wallace testified that Polly Ann died three or four years before the death of her sister America.

This action was instituted by some of the children of America Wallace and some of the children of Polly Ann Wallace, claiming fractional interests in the property derived by descent from their respective mothers. America Wallace was survived by five children, but one of them died subsequently leaving no children, and another died in 1927. Polly Ann Wallace was survived by five children, one of whom died after the action was filed. It was alleged in the petition that the plaintiffs were the owners of an undivided one seventy-seventh interest in the property at the mouth of Elkhorn, and that the Elkhorn Land & Improvement Company and the other defendants owned the other interests, and prayed for a partition of the property. The answer and counterclaim traversed the allegations of the petition, and pleaded affirmatively that the defendants and those under whom they claimed had been in the actual, open, continuous, uninterrupted, notorious, and adverse possession of the land to a well-defined and marked boundary for more than fifteen years before the commencement of the action. The affirmative matter of the answer was traversed by a reply, and it was alleged that at all times during which defendants claimed to have been in adverse possession of the land, and at all times those under whom they claimed were alleged to have been in adverse possession thereof, the plaintiffs and their ancestors were tenants in common with them, and the possession was amicable and not adverse. They further alleged that at all times while defendants and those under whom they held were claiming adversely these plaintiffs and those under whom they claim were under the disabilities of coverture and infancy, and by reason thereof the statute of limitations did not apply. They further pleaded the fact that the Elkhorn Land & Improvement Company and its predecessors had acquired from William Potter, Richard Potter, and Levi Potter, Tabitha Owens, and Pricey Bartley their respective interests in the land, and that thereby defendants had recognized the children of America Wallace and Polly Ann Wallace as joint tenants and tenants in common with them, which proved their possession amicable and not adverse. By a rejoinder, the defendants traversed the affirmative matter in the reply and pleaded affirmatively that all of the plaintiffs had been of age more than three years prior to the bringing of the suit after the fifteen-year period had expired, and that, notwithstanding infancy, they were barred by limitations. The defendants requested an issue out of chancery to try the question of title, which was granted. Thereafter an amended answer and counterclaim was filed pleading the thirty-year statute of limitations. The affirmative allegations of the rejoinder were traversed of record. The case was tried before a jury, resulting in a verdict for the plaintiffs, and they were thereupon adjudged the interests sought by them. Motion for a new trial was overruled, and this appeal has been prosecuted by the defendants.

1. It is complained that the court erred in awarding the burden of proof to the plaintiffs, but no basis for the contention is apparent. The petition alleged that the plaintiffs were the owners of an undivided interest in the land, which allegation the defendants denied. If no proof had been offered by the plaintiffs to sustain the averment of ownership, judgment would have gone for the defendants. In such cases the burden of proof is upon the plaintiffs. Civ. Code Prac. § 526; Louisville & N. R. Co. v. Hargis, 230 Ky. 806, 20 S.W.2d 991.

2. It is argued that the verdict of the jury was merely advisory to the chancellor, and should have been disregarded by him in a determination of the issues. It is settled by the decisions that, where a distinct legal issue is made in an equitable action, either party has the right to have such issue tried by a jury, and a verdict in such cases cannot be set aside except by granting a new trial for some reason authorized by the law and the facts. Hill v. Phillips, 87 Ky. 169 7 S.W. 917, 10 Ky. Law Rep. 31; Carder v. Weisenburgh, 95 Ky. 135, 23 S.W. 964, 15 Ky. Law Rep. 497; Procter v. Tubb, 166 Ky. 676, 179 S.W. 620; Winchester v. Watson, 169 Ky. 213, 183 S.W. 483; Fort v. Wiser, 179 Ky. 709, 201 S.W. 7; Shannon v. Stratton et al., 144 Ky. 29, 137 S.W. 850; Lewis v. Helton, 144 Ky. 598, 139 S.W. 772. In this case the issue out of chancery was awarded on the motion of appellants, and was one upon...