Eversole v. Baker
| Decision Date | 03 December 1926 |
| Citation | 217 Ky. 15 |
| Parties | Eversole, et al. v. Baker. |
| Court | United States State Supreme Court — District of Kentucky |
1. Judicial Sales — One Claiming Under Commissioner's Deed Must Show Regularity of Proceedings Under Which Executed. — It is incumbent on one claiming under commissioner's deed to show regularity of proceedings under which it was executed.
2. Evidence — One Seeking to Maintain Issue Must Present Best Evidence he can. — One seeking to maintain an issue must ordinarily present the best evidence within his control or obtainable by him.
3. Evidence — Party Unable to Produce Best Evidence May Rely on Secondary Evidence. — Party who cannot produce best evidence may rely on secondary evidence within his power to produce.
4. Evidence — Records — Commissioner's Deed, Reciting Execution by Authority of Certain Court Orders, Since Destroyed, Held Sufficient Evidence of Title in Persons Claiming Thereunder (Ky. Stats., Section 3760). — Commissioner's deed, reciting that it was authorized by certain orders of named court at designated terms in certain action then pending therein, held evidence sufficient, in absence of fraud or mistake, to sustain title of persons claiming thereunder after destruction of records to which it referred, in view of Ky. Stats., section 3760, and secondary evidence rule.
Appeal from Leslie Circuit Court.
L.D. LEWIS for appellants.
J.M. MUNCEY, J.L. DIXON and J.M. BICKNELL for appellee.
Reversing.
Appellants brought this equitable action claiming to be the owners of a described tract of land in Leslie county, and alleging that defendant (appellee) had trespassed thereupon and cut and disposed of timber to the value of $210.00, and prayed judgment against him for that amount, and that he be enjoined from further trespass.
In his original answer defendant denied the ownership of the plaintiffs, and denied the trespass, but did not assert title in himself. However, he thereafter filed an amended answer wherein he alleged that he and the heirs of Joe Murrell, deceased, were the equitable owners of the tract of land described in the petition, and that said heirs and defendant, under their license and with their consent, had had the constructive possession of all of said land for more than fifty years, and that no one had had the actual possession of the same, or any part thereof, during said period.
He further alleges that prior to the 28th of November, 1877, an equitable action was pending in the Perry circuit court, wherein the administrator of Russell Begley, deceased, was plaintiff and Russell Begley's heirs were defendants; but that before the filing of said action Joe Murrell had purchased from the heirs of Russell Begley, deceased, the three tracts of land described in that action and had taken title bonds from said heirs therefor. He alleges that only three tracts were mentioned in that suit, the second tract mentioned therein being the same now in controversy in this action, and that the title bonds so executed and delivered to Joe Murrell were filed in that action and have been lost or mislaid and cannot now be shown to the court. He alleges that on the 28th of November, 1877, judgment was entered in the Begley action pending in the Perry circuit court directing a sale of the three tracts of land or so much thereof as was necessary to raise the sum of $219.24, the amount necessary for the payment of Russell Begley's debts. He alleges that on the 11th of February, 1878, the master commissioner sold said lands, at which sale Polly Murrell became the highest and best bidder for the second and third tracts therein mentioned, but that thereafter said sale was set aside and a new sale of said lands ordered by the court to be made by a special commissioner, and that on the 21st of September, 1885, said special commissioner did sell the third named tract mentioned in the judgment for the sum of $346.80, but that the second tract mentioned therein was not sold; and that said second tract, the one here in controversy, remained unsold and continued to be held by this defendant and the heirs of Joe Murrell, deceased, under and by reason of the aforesaid title bonds executed by Russell Begley's heirs.
He also alleges in the amendment that the master commissioner's deed under which the plaintiffs claim is void because the land therein described was not in fact sold, and because there was no order of court directing a conveyance of said land to Hiram Napier, under whom the plaintiffs claim, nor any order of court approving said deed or ordering it to be certified for record.
By reply the plaintiffs denied that Joe Murrell purchased the three tracts of land mentioned, or had taken title bond therefor from the Begley heirs, or that the same was filed in the action referred to, or that any such title bond ever existed, or was lost or mislaid, and denied the other material allegations in the amended answer.
After preparation the cause was submitted and the court entered a judgment dismissing the plaintiffs' petition, but not adjudging either party to be the owner of the land in question. The plaintiffs traced their title back to the Commonwealth through Russell Begley, deceased, who had patented the lands; but in the chain of title exhibited by them there was a commmissioner's deed purporting to have been executed under the orders of the court in the action to settle Russell Begley's estate, and the dismissal of plaintiff's action appears to have been upon the theory that this purported commissioner's deed was void, and did not convey title to the plaintiffs or their vendor.
At the time of Russell Begley's death and at the time of the institution of the action to settle his estate, the lands therein described were in Perry county, and the...
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