Interstate Inv. Co. v. Bailey

• Decision Date: 18 May 1906
• Citation: 93 S.W. 578
• Parties: INTERSTATE INV. CO. v. BAILEY.
• Court: Kentucky Court of Appeals

93 S.W. 578

INTERSTATE INV. CO. v. BAILEY.

Court of Appeals of Kentucky.

May 18, 1906

Appeal from Circuit Court, Harlan County.

"Not to be officially reported."

Action by William M. Bailey against the Interstate Investment Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. B Dixon, W. F. Hall, Bullitt & Kelly, and G. A. Eversole, for appellant.

H. C Clay, for appellee.

O'REAR J.

Appellant and appellee claim title to the land in dispute, in this case, from a common source. Andrew Davis was the patentee, to whom the grant was issued in 1871. He then lived in Harlan county with a woman whom he held out as his wife. They then had two little children, Elijah being one of them. Andrew Davis abandoned his family and left Harlan county in 1871 and was not heard from for a long time. It was thought that he was dead. The woman married again. The children grew to maturity. Before leaving Harlan county in 1871, Andrew Davis sold all his other land except that contained in this patent. It is the contention of appellant that he then conveyed the land in dispute to his son Elijah Davis, who subsequently conveyed it to appellant's grantor, Ballard Thruston. Afterward, in 1902, Andrew Davis turned up alive, and has executed a conveyance to the land to appellee. Appellee brought this suit against appellant and its tenant in ejectment, but by consent the case was transferred to and tried in equity. The defenses were: First, that the patentee Andrew Davis, had conveyed the land to his son Elijah, in 1871; second, that appellant had acquired title by adverse possession of more than 15 years; and, third, that the deed from Andrew Davis to appellee, executed in 1902, was champertous.

The statute against champerty makes void all voluntary conveyances of land while in the adverse possession of another. Section 210, Ky. St. 1903. As the conveyance to appellee was admittedly executed after appellant had acquired whatever title and possession it may have, it is necessary to notice particularly the character of its possession when appellee's deed was executed. The land lies along the top of Hall's spur, on Big Black Mountain. It has never been cleared of its forest, nor fenced or otherwise inclosed. It was not supposed to be habitable till recently, when appellant caused a cabin to be built and a small clearing to be made, which precipitated this suit. But that was all done since the conveyance to appellee. Up to that time the land was not used for any purpose, except as a range for cattle. For some years appellant's tenants, as well as the public generally, it seems, turned their cattle out upon this mountain. They ranged at will over this land and other adjacent lands owned by appellant. But such use alone is not hostile to the title of the true owner. Cattle are not required by the laws of this state to be fenced in, but must be fenced out. Their roaming at large over uninclosed lands is not such as assertion of title by the owner of the cattle as would sustain an action against him by the owner of the land. But it is contended that, as appellant admittedly owned other large bodies of land adjoining the tract in dispute, all constituting, in fact, one boundary of some 6,000 or 7,000 acres, extending partly into Kentucky and partly into Virginia, and that as appellant had tenants actually living upon this general boundary, under written leases which gave them authority and wardship over the whole, that such possession, particularly when coupled with their use in grazing their cattle, was an actual adverse possession of all the land against everybody, except their landlord. A tenant's possession is never better nor more extensive than his landlord's could be. For many purposes it may be the same. And it may be conceded that in the case at bar, the tenant's possession and acts are the same as if held and done by the landlord in person. Which brings the question down to this: The landlord, through tenants, was in the actual possession of certain tracts of land, to which it had adequate recorded conveyances and unquestioned titles. That possession was evidenced by cultivating annual crops on certain fields, and occupying certain houses within the respective boundaries. The tenants were put in possession under written leases which bound them to look after not only the particular parcels which they were cultivating and living upon, but of the whole general boundary, including the tract the title to which is now in dispute, but upon which there was no habitation or inclosure. It may be assumed that the tenants did what their leases required them to do, viz., go upon all parts of the land at intervals, asserting title in the landlord, and preventing depredations by any other person. Still, is this such possession as amounted, in law, to a disseisin of the rightful owner of the disputed tract, who was a stranger to the claimant landlord?

The character of possession spoken of in the champerty statute is the same kind of possession which, if maintained long enough under the limitation statute confers title upon the possessor. It is an adverse actual possession; it must assert and exercise dominion and control over the premises in such manner as to exclude all who might wish to enjoy them under any other title. It must establish of itself a foothold upon the land, being a visible exercise of exclusive authority, by virtue of a claim of right. It must be so open and notorious that the ousted claimant may have notice thereby of the fact that he is disseised--that another claims and is occupying the premises, to the detriment of other titles. Secret claim, or furtive use, or occasional entries, could not afford such notice. It would be most unjust to allow one to acquire title to another's property by such secret means. Nor is it permitted. While for some purposes it is allowed, as of necessity it should be, that an entry by the owner upon any part of his boundary is a reduction to actual possession by him of the whole of it, and this whether his boundary is comprised of adjoining tracts, or a single one, still it must frequently, if not always, remain a question to be determined upon the facts of the particular case whether such entry does reduce to an actual adverse possession all the land which adjoins upon and which the entrant claims to own. In a county like Harlan, broken by mountain ranges and cut by streams, and sparsely settled, a vast majority of its territory is uninclosed forest. If a pocket lease could reduce to actual possession all the contiguous lands embraced by its terms, so long as any part was actually occupied by the tenant, then it were possible by such method to furtively gather in all or most of the outlying lands in a vast territory. And there would be no end to conflicts of such "actual possession." For if one could get an actual possession in that way, others could, too. We would have the spectacle, then, of two adverse claimants, each being in the actual possession of the same spot, which is a legal as well as a physical impossibility. The confusion into which the subject is sometimes carried comes from a failure to discriminate between actual and constructive possession. The latter pertains always to the legal title till it is ousted by an adverse actual possession. It is said there cannot be two hostile constructive possessions of the same land at the same time. No more can there be two hostile actual possessions of...