Lowe v. Taylor

• Decision Date: 17 November 1916
• Citation: 189 S.W. 204,172 Ky. 275
• Parties: LOWE v. TAYLOR.
• Court: Kentucky Court of Appeals

189 S.W. 204

172 Ky. 275

LOWE v. TAYLOR.

Court of Appeals of Kentucky.

November 17, 1916

Appeal from Circuit Court, Pike County.

Ejectment by Elkanath Taylor against Dick Lowe. Judgment for plaintiff plaintiff later conveyed the land to Helen Leslie & Co., who after notice, entered a motion that the case be redocketed and writ of possession awarded them for the land. From a judgment awarding the writ, defendant appeals. Affirmed.

Cline & Steele, of Pikeville, for appellant.

J. M. York, of Catlettsburg, and J. P. Hobson, Jr., of Pikeville, for appellee.

SETTLE J.

This is an appeal from a judgment of the Pike circuit court awarding Helen Leslie & Co., grantees of Elkanath Taylor, a writ of habere facias possessionem for a tract of land in Pike county, particularly described in the judgment and writ. It appears from the record that the land referred to was recovered of Lowe by Taylor in an action brought by the latter in the Pike circuit court in 1907; the judgment establishing his ownership thereof and directing the issual of a writ of habere facias possessionem therefor being rendered at the October term, 1907, of that court.

On January 21, 1911, Taylor sold and by deed conveyed the land to Helen Leslie & Co. On October 11, 1915, Helen Leslie & Co., after due notice to Lowe, entered a motion in the Pike circuit court that the case be redocketed and a writ of habere facias possessionem awarded them from the land. To this motion Lowe filed a response, denying the right of Helen Leslie & Co. to the land, and alleging that their grantor, Elkanath Taylor, following the entering in his favor of the judgment at the October term, 1907, of the Pike circuit court, caused to be issued the writ of habere facias possessionem thereby awarded him, which was placed in the hands of the sheriff of Pike county, who duly executed it by depriving him (Lowe) of the possession of the land and delivering it to Taylor; that immediately after the execution of the writ Lowe, by the payment to Taylor of a sum of money the amount of which was not named, repurchased of him the land, and was by Taylor again placed in possession thereof, which possession has since continued. It was further alleged in the response that at the time of the attempted sale of the land by Taylor to Helen Leslie & Co. and of the execution of the deed by him to the latter he (Lowe) was in the actual, adverse possession of the land, which was then known to Helen Leslie & Co., for which reasons the deed from Taylor to them was and is champertous and void. All affirmative matter of the response was controverted by reply. On the hearing of the motion the rights of the parties were determined by the judgment rendered, as previously indicated in the opinion.

It is insisted for Lowe: (1) That the circuit court was without authority to issue the writ of possession in favor of Helen Leslie & Co.; (2) that the deed from Taylor to Helen Leslie & Co. was champertous; (3) that the court erred in refusing him a continuance of the case.

The record does not contain, by bill of exceptions or otherwise, the evidence heard by the circuit court on the trial of the motion. We know, however, that the evidence was introduced by each of the parties, for the judgment so declares. It is true there is in the record an affidavit filed by Lowe in support of his motion for a continuance, which names certain absent witnesses and purports to state certain facts to which it was claimed they would, if present, testify, and it is recited in the judgment that the continuance asked by Lowe was refused because the opposing litigants consented that the contents of the affidavit as to what the absent witnesses would testify might be read in evidence as their depositions, but it is not made to appear from the record that such contents of the affidavit were, in fact, read or considered read as evidence on the trial of the motion. Such being the state of the record, we must take it for granted that whatever conclusions of fact were arrived at by the circuit court were supported by the evidence; for it is a well-known rule in this jurisdiction that, where the evidence heard by the lower court is not brought up on the appeal, the appellate court will presume that it supports the judgment rendered in the court below, and an equally well-known rule that, in the absence of any part of the evidence, this court will not, on appeal, consider any question relating to the testimony offered or introduced on the trial. L. & N. R. Co. v. Finley, 86 Ky. 294, 5 S.W. 753, 9 Ky. Law Rep. 660; Harlan v. Howard, 79 Ky. 373; Brumley v. Nichols, etc., 93 S.W. 667, 29 Ky. Law Rep. 561; Duker's Adm'r v. Kaelin, 90 S.W. 959, 28 Ky. Law Rep. 900; Dietz v. Barnard, 107 S.W. 766, 32 Ky. Law Rep. 1130; Charles v. Hurley, 109 S.W. 320, 33 Ky. Law Rep. 78.

So, in the absence from the...