Hopkins v. Slusher

• Decision Date: 27 November 1936
• Citation: 266 Ky. 300,98 S.W.2d 932
• Parties: HOPKINS v. SLUSHER.
• Court: Kentucky Court of Appeals

98 S.W.2d 932

266 Ky. 300

HOPKINS v. SLUSHER.

Court of Appeals of Kentucky

November 27, 1936

Appeal from Circuit Court, Knox County.

Action by I. L. Hopkins against C. B. Slusher. From an adverse judgment, the plaintiff appeals.

Affirmed.

J. M Gilbert, of Pineville, for appellant.

Hiram H. Owens, of Barbourville, and D. M. Bingham, of Pineville for appellee.

THOMAS Justice.

The sole question involved on this appeal is whether or not the appellant and plaintiff below, I. L. Hopkins, was at the time of the filing of this action or since then the owner of a tract of land in Knox county containing 83 acres which was patented to Isaac Mills, Sr., on February 3, 1891. The action was filed in the Knox circuit court by plaintiff against defendant and appellee C. B. Slusher and another, on March 27, 1918; but judgment therein was not rendered until July 6 1935, thus entitling the case to be listed as a Rip Van Winkle litigation. At the outset and upon the filing of the petition, plaintiff procured a restraining order from the clerk of the court enjoining defendants from interfering with his possession or title, and which clung to the case throughout its long career in the circuit court, no steps having been taken to dissolve it.

Plaintiff in his petition alleged generally that he was the owner and in the possession of the described tract of land. He also specially pleaded that he and those under whom he claimed title had adversely occupied it and possessed it for a sufficient length of time to mature an adverse possessory title. Both general and special allegations of ownership were denied by defendants (to be hereafter referred to in the singular) and Slusher also averred his ownership of the land, and said in one paragraph of his answer that he "is entitled to the immediate possession of said land and ought to recover the same from the said plaintiff and his agents and tenants, and he prays the petition be dismissed" and for judgment for $100 damages. He likewise in his answer made the special plea of title by adverse possession. Following pleadings made the issues and the case then began its long sleep. During its sojourn in the circuit court and in the latter part thereof proof was taken by the respective sides and after submission the court first rendered judgment in favor of plaintiff, but on the same day of the term or on the next day he set that judgment aside and rendered one dismissing plaintiff's petition and adjudged that defendant Slusher was the owner of the land. To reverse it, plaintiff prosecutes this appeal.

Before taking up what we have said was the decisive question, we deem it appropriate at this point to say that neither party proved adverse possessory title. They did prove, however, that plaintiff and those under whom he claimed at different short and abandoned periods were in possession of some portion of the land and the same is also true with reference to defendant's alleged adverse possession; but neither of them proved continuous adverse possession of the nature, kind, and extent required by the law in order to effect a transfer of the title. We must, therefore, look to other sources of title about which testimony was heard in order to solve the decisive question, supra. The only one on which plaintiff relies to establish title in himself (excluding the one that we have denied) is a sheriff's deed executed to him on May 28, 1908, which purports on its face to have been made by the then sheriff of Knox county, Dan H. Williams, pursuant to a sale of the land on December 23, 1907, under a levy of an execution that the sheriff had made on the land as the property of the supposed judgment defendant issued in favor of the plaintiff, I. N. Hopkins, and against Isaac Mills, Sr., the patentee of the land. The deed recites the number of the execution, and that it issued "from the clerk's office of the Knox circuit court on the 7th day of October, 1907, in favor of I. N. Hopkins, and against Isaac Mills, for the sum of $300.00 and for $14.95 costs." The deed also further recites that the execution was delivered to the sheriff on that day and while it was in force and effect he levied it on the land and that he advertised its sale, under the levy, for December 23, 1907; that the sale was to be held at the courthouse door, which was done, and that Hopkins became the purchaser at the sum of $175, the land having been appraised, according to the recitation in the deed, at the sum of $172.

That deed came into the record this way: When plaintiff was giving his deposition, he was asked by his counsel if he was the owner of the land, to which he made an affirmative answer. He was then asked if he had a deed therefor and he made a like answer and filed his sheriff's deed as an exhibit with his deposition. He also stated that he in person had posted the advertisement of the sale on the land--as the law requires--at the instance of the sheriff, and that in some manner he got possession of one of the advertisements and had preserved it. He was requested to and did file that advertisement, which is in the usual form and contains, in substance, the same recitals and no more than what we have stated was contained in the deed. In neither the advertisement nor the deed is it stated (except by inference) that any judgment was ever rendered by the Knox circuit court for any sum in favor of plaintiff, Hopkins, against Isaac Mills, Sr., the supposed defendant in the execution or case in which the judgment is supposed to have been rendered. The inferential recital of that fact is the one saying that the execution issued from the Knox circuit court in favor of Hopkins against Mills for the sum of $300 and the costs. The two papers to which we have referred are the only ones in this entire record bearing in any manner upon the existence of the alleged judgment in favor of Hopkins against Mills, nor did any witness state orally that any such judgment was ever rendered, or, if so, that Mills was served. We are, therefore, confronted with the single question as to whether in the circumstances the deed, purportedly executed by the sheriff to plaintiff, is, because of its recitals, sufficient to prima facie establish the legal transfer of the title to the land from Mills to Hopkins?

Before directing our attention specifically to answering that question, attention should be called to the state of the pleadings, which, it will be remembered, did not attempt to specify or rely upon any special mode or manner by which plaintiff became vested with title to the land, except the one relying upon adverse possession--but which was unnecessary to be made, since the general averment of title and ownership was broad enough to admit proof of any method by which he acquired title. Likewise, defendant's denial in his answer that plaintiff was the owner or possessed title to the land put in issue any and every mode or manner by which that acquirement was obtained, and when plaintiff thereafter sought to establish title in a particular mode or manner it was incumbent upon him to make the same character of proof necessary to be made if plaintiff had specifically averred the mode by which he acquired title and defendant had in terms denied it. Having said this much, we will now address ourselves to a determination of the only relevant question in the case, which is the one stated, supra.

The question, like many others in the law, is somewhat confused in the absence of a specific statute upon the subject, and there is none in this jurisdiction. Of course, where there is a statute regulating the effect of recitals in the character of deed here involved, the rights of the parties would be determined in accordance therewith, since it is competent for the Legislature to so prescribe; but in...