Hook v. Joyce

• Decision Date: 06 June 1893
• Citation: 22 S.W. 651,94 Ky. 450
• Parties: HOOK v. JOYCE.
• Court: Kentucky Court of Appeals

22 S.W. 651

94 Ky. 450

HOOK v. JOYCE.

Court of Appeals of Kentucky.

June 6, 1893

Appeal from court of common pleas, McCracken county.

Ejectment by M. W. Joyce against W. H. Hook to recover a burial lot. From a judgment for plaintiff, defendant appeals. Affirmed.

Gilbert & Kahn and R. L. Reeves, for appellant.

Sam Houston, for appellee.

LEWIS J.

This is in the nature of an action of ejectment, brought by appellee to recover of appellant a cemetery lot, and upon the trial the court gave the following instructions: (1) "The court instructs the jury that the parcel of land in contest is a cemetery lot for burial purposes within the cemetery ground of the city of Paducah, which was purchased by it and laid out into cemetery lots in 1847, and the lot in contest was conveyed by the city to the defendant, W. H. Hook, in 1881, by the deed from it to him exhibited in evidence, and under this deed the defendant became the owner of same, and plaintiff cannot recover, and they will find for defendant unless they should believe from the evidence that the plaintiff, M. W. Joyce, is the son of Lucinda Joyce, and that plaintiff and Lucinda Joyce, under whom he claims, at any time prior to possession of the defendant, Hook, had held the actual adverse possession of the lot in contest continuously claiming to own same adversely to all the world against all persons, for 15 years; in which event he is the owner of the land or lot, and entitled to recover it, and they will find or him, unless the jury should further believe from the evidence that defendant, Hook, thereafter had held the actual adverse possession of the lot continuously, claiming it as his own adversely to all the world and against all persons for 15 years before this action was brought; in which latter event, also, they will find for defendant. And if they find for plaintiff, Joyce, they will find for him the lot in contest, and assess the damages at whatever sum they may believe from the evidence he has sustained by reason of the removal of the tombstones, and the desecration of the graves of his ancestors, not exceeding $100." (2) "The court instructs the jury that the deposit of the dead in the grave, in burial, gives the heir no interest in the soil and to constitute adverse possession of a cemetery lot the possession must have been with acts of ownership by the claimant in the preservation and use of the grounds for burial purposes, and...