Kephart v. Rucker

• Decision Date: 15 May 1964
• Citation: 379 S.W.2d 244
• Parties: Charlie KEPHART, Appellant, v. R. T. RUCKER, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 244

379 S.W.2d 244

Charlie KEPHART, Appellant, v. R. T. RUCKER, Appellee.

Court of Appeals of Kentucky.

May 15, 1964.

Thomas & Thomas, New Castle, for appellant.

Berry & Floyd, New Castle, for appellee.

CLAY, Commissioner.

This is an appeal from a judgment of the Henry Circuit Court in an action to quiet title to real estate. The present litigation is an outgrowth of two sales conducted by the Master Commissioner of the Henry Circuit Court in a former action in which the real estate of the late Jessie Stivers was sold.

The land of Stivers was a farm, situated partly in Shelby and partly in Henry counties. The Master Commissioner conducted two sales, one in Henry and the other in Shelby County. Appellant was the purchaser a the Henry County sale; appellee bought the property sold in Shelby. The Master Commissioner's sale in each county was advertised and conducted according to the respective descriptions of the lands as recited in the pleadings and judgment in the first suit.

The description of the land bought by appellant was by reference to abutting owners, and was concluded with the expression 'containing 2 1/2 acres, more or less.' The tract purchased by the appellee was described by courses and distances, purporting to embrace 20 acres, less a tract sold off, which off-conveyance was said to contain one acre, and was described by reference to abutting owners.

After the parties had made their respective purchases, and before the sales had been confirmed by the Henry Circuit Court, they arranged to meet on the property for the purpose of agreeing on the construction of a boundary fence between their respective parcels of land. They were unable to agree as to the proper location of the boundary. Thereupon they reported the situation to the attorney who had practiced the land sale suit, with a view to having the matter resolved. The attorney engaged the services of a surveyor, who went on the property, accompanied by the appellant and appellee. The surveyor made a survey, using the appellant and appellee as chain carriers. The appellant was not satisfied with the boundary line as determined by the surveyor, and made known to appellee and others his dissatisfaction.

It was brought out at the time of the survey that there had been an off-conveyance from the original 2 1/2 acres Henry County tract prior to the land suit, although reference to this had been inadvertently omitted from the pleadings and all other proceedings in the land suit. The surveyor testified that he accepted the boundary line between the tracts of appellant and appellee as pointed out to him by W. M. Rucker, father of appellee. W. M. Rucker testified that he had personal knowledge of the location of the established boundaries as recognized by the individ who were former owners, and whose names appear as the abutting owners in the description of the appellant's tract. The evidence disclosed that an old fence, now in bad repair, exists on the boundary line used by the surveyor. W. M. Rucker testified that he had known of the existence of the fence for forty years. There was no testimony refuting this evidence of the boundary location.

The calculations of the surveyor revealed 1.55 acres in the tract surveyed to appellant and 24.43 acres in the tract surveyed to the appellee. Appellant continued to maintain that he was not satisfied with the results of the survey, but took no affirmative action seeking any remedy until accepting a deed from the Master Commissioner. In fact, the...