Gayheart v. Cornett

• Decision Date: 22 October 1897
• Citation: 42 S.W. 730
• Parties: GAYHEART et al. v. CORNETT et al.
• Court: Kentucky Court of Appeals

42 S.W. 730

GAYHEART et al. v. CORNETT et al.

Court of Appeals of Kentucky.

October 22, 1897

Appeal from circuit court, Knott county.

"Not to be officially reported."

Action by Moses Cornett and others against Morgan Gayheart and others to ascertain the boundary of a tract of land, to recover judgment for possession, and for a sale of other land, and a division of the proceeds. Judgment for plaintiffs, and defendants appeal. Reversed.

Thos H. Hines and J. M. Bailey, for appellants.

Wm. H Holt, for appellees.

DU RELLE, J.

The plaintiffs in this case (appellees here) brought suit against appellant Gayheart, alleging that their ancestor, at the time of his death, was seised of a large quantity of land in Letcher (now Knott) county; that after his death commissioners were appointed to divide it, and made allotments thereof among the heirs, but failed to consider or divide some 36 acres embraced in a 50-acre survey made by their ancestor, and patented to him. They further alleged that appellant was in possession unlawfully, and prayed a reference to the commissioner to ascertain the boundary, a judgment for the possession and for damages, and, further for the sale of the undivided land, as being insusceptible of advantageous division, and for a division of the proceeds among those entitled. The defense relied on superior title adverse possession, and an agreement in parol to establish a dividing boundary line. The trial court adjudged the land claimed to appellees, and decreed a sale. It appears that the survey for appellees' ancestor, Samuel Cornett, was made September 16, 1833, but was not registered, nor was a patent issued for the land embraced in it until July 12, 1848; but it is not necessary for us to consider the question whether this case comes within the rule laid down in Bryant v Wood, 90 Ky. 536, 14 S.W. 498, as showing that, by unreasonable and long delay, the patentee should be considered as having abandoned his claim and lost his right.

From the testimony appearing in this record, we are constrained to a different conclusion from that reached by the trial court and are of the opinion that the defenses of adverse possession and an agreement to establish a dividing line are conclusive of the case. It is conceded for appellees that an oral agreement fixing a dividing line between adjoining land of antagonistic claimants is valid. Hinton v. Stewart, Hughes, 4; Madison v. James, ...