May v. Jones
| Decision Date | 08 October 1823 |
| Parties | May, & c. v. Jones, & c. |
| Court | Kentucky Court of Appeals |
FROM THE HART CIRCUIT COURT, THE HON. CHRISTOPHER TOMPKINS SOLE JUDGE.
HARDIN for appellants
No attorney for appellees.
This was on ejectment, brought in the circuit court by the present appellants, to recover from the appellees the possession of a tract of land in the county of Hart.
The admissions of the occupier of land, made while in the occupation, as to the person from whom he derived possession may be given in evidence as a part of the res gestae. But such admissions, made after he has abandoned the possession are inadmissible. Vide Phillips' Evidence, N. Y. Ed 201-2.
The appellants claim the land under their deceased ancestors John May, John Bannister, Kenon Jones, Thomas Shore and Christopher M'Connico; and on the trial in the circuit court, introduced in evidence a patent which issued from the commonwealth of Virginia, in 1787, to their said ancestors, and produced witnesses conducing to prove that the patent covered the land in contest; that the defendants resided on the land at the commencement of this suit, and that the patentees had all previously departed this life, leaving the appellants their legal heirs and representatives.
The appellees claim the land under a patent which issued from this state, in the year 1800, to Jacob Funk; and on the trial in the circuit court, produced in evidence the patent to Funk, a deed from two of the heirs of Funk to Bennom Shaw, bearing date in 1803; a deed from Shaw to John Swearing, of subsequent date, though in the same year, and a written agreement bearing date in 1820, entered into between David Swearing, one of the children of John Swearing, and the appellee, Edward Jones, in which agreement the said David Swearing stipulated to convey to the said Jones, all the right and title of his deceased father, John Swearing, to the land now in contest. The appellees then introduced witnesses, conducing to prove the death of the patentee Funk and that the persons who made the conveyance to Shaw, were his legal representatives; and also proved the death of John Swearing, and that David Swearing, who entered into the agreement with the appellee, Jones, is one among eight children of the said John, all of whom are still living.
A man may be in continued possession of land for seven years, without actual residence thereon; but such possession without actual residence will not bring him within the protection of the seven years' limitation act. 1 Litt. Rep. 173, 2 Litt. Rep. 160, 3 Litt. Rep. 446.
The appellees, moreover, rely upon a continued adverse possession by them and those under whom they claim, for upwards of twenty years before the commencement of the suit against them; and introduced witnesses conducing to prove that John Swearing, the father of David Swearing, settled upon the land about twenty-three years before the trial in the circuit court, and that he continued to reside thereon until his death; that David Swearing, who is one of the children of John, continued to reside on the land from the time of his father's death until about four or five years before the trial, and then removed from the land; that after...
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