Jarboe v. McAtee's Heirs

• Decision Date: 19 June 1847
• Citation: Jarboe v. McAtee's Heirs, 46 Ky. 279 (Ky. Ct. App. 1847)
• Parties: Jarboe v. McAtee's Heirs, & c.
• Court: Kentucky Court of Appeals

46 Ky. 279

Jarboe v. McAtee's Heirs, & c.

Court of Appeals of Kentucky.

June 19, 1847

Evidence. Grants. Presumptions. Lapse of time. Power of Attorney. Costs.

APPEAL FROM THE MARION CIRCUIT.

Morehead & Reed and Hill for appellants.

Hardin, Harlan & Craddock and Kelly for appellees.

OPINION

SIMPSON JUDGE.

Case stated.

THIS is a suit in chancery, brought bye the plaintiff in error against the administrators and heirs of George McAtee, deceased, for a specific execution of a contract, by which George McAtee in his lifetime, sold to him a certain tract of land, that he is anxious, as he alleges, to retain, if he can procure a good title for it from the defendants, if not, he asks a rescission of the contract upon equitable terms.

The administrators of McAtee having obtained a judgment at law against him for the last installment, of the purchase money, he enjoined that judgment, and alleged that he had tendered to the administrators the balance of the purchase money, and offered to pay it over to them, upon the condition, that they would make him a good title to the land.

The Court on the hearing of the cause, decreed that the defendant's title was good, caused a deed to be executed by them to the complainant, dissolved his injunction without damages, but gave him no decree for his costs.

Decree of the Circuit Court.

Several objections are made to the title, which we will dispose of in the order that they arise.

No patents having been filed by the defendants, it is contended, that this forms an insuperable objection to their title, as there is nothing to show that the Commonwealth has ever parted with her title to this land. This objection is unavailing, for two reasons. In the first place, the testimony in the cause shows that part of the land is covered by Williams' patent, and the residue thereof by a patent to Samuel Conley. This evidence was used without objection; and although if excepted to as illegal, it should have been excluded, it not being the best evidence to establish the existence of the patents, yet having been admitted, it is sufficient to show that the title to the land has passed from the Commonwealth.

Testimony admitted without objection in the Circuit Court though not o?? the highest grade, cannot be objected to in this Court.

In the next place, the testimony clearly shows the fact, that at the time when the case was heard, the complainant, and those under whom he claims, had been in the possession of the land, claiming it during all the time as their own, for upwards of fifty years, which would have authorized the presumption that a grant to the land had been made by the Commonwealth.

This Court will presume a grant from the Commonwealth after a possession of fifty years the posessors claiming and holding as owners, (3 Stark, 1221; Greenleaf, 50.) A grant has been presumed in N. York upon a possession of less than 40 years, (10 Johnson, 377.)

After long continued enjoyment, a grant from the crown may be presumed: (3 Starkie, 1221; Greenleaf on Evidence, 50.) In regard to public grants, a longer continued peac??able enjoyment has generally been deemed necessary, in order to justify this presumption, than is deemed sufficient to authorize the like presumption in the case of deeds from private persons.

In the State of New York, it has been decided that less than forty years possession of a tract of land, where it appeared that there had been an order of council for the survey of the land, and an actual survey thereof accordingly, created the presumption that the patent had been duly issued: (10 Johnson, 377.)

It is the policy of the law, and necessary to the repose and security of society, that such a presumption should be indulged, where individuals have continued in the possession of the land for a great many years, treating it as their own, and holding and claiming it, under a patent from the Commonwealth, either to themselves or to some other individual.

We are of opinion that after the lapse of fifty years, which is the longest period allowed by our statue, for the institution of a suit for any description of real property, the presumption of a grant from the Commonwealth, is authorized in favor of a possession which has been continued during the whole time where the land so possessed is claimed to have been patented and held under such claim. This presumption is peculiarly proper in this State, the history of its land titles showing that the lands were often covered by several conflicting grants.

For a portion of the land sold to the complainant, a deed had been executed from Samuel Conley to Henry McAtee, in the year 1793, by an individual who represented himself to be the agent of Samuel Conley, who was the patentee. No evidence of that agency having been produced, it is...