Meek v. Davis

• Decision Date: 24 September 1920
• Citation: 189 Ky. 64,224 S.W. 659
• Parties: MEEK ET AL. v. DAVIS.
• Court: Kentucky Court of Appeals

224 S.W. 659

189 Ky. 64

MEEK ET AL. v. DAVIS.

Court of Appeals of Kentucky.

September 24, 1920

Appeal from Circuit Court, Johnson County.

Action by Lon Davis against Asa Meek and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Howes &amp Howes, of Paintsville, for appellants.

W. H Vaughan & Son and J. L. Herrington, all of Paintsville, for appellee.

CLARKE J.

The plaintiff, now appellee, Lon Davis filed this action against appellants, Asa Meek and John Welch, to recover damages for the destruction of a dwelling house, which he alleged belonged to him. Defendants, admitting that they took down and removed the house, denied plaintiff's ownership alleging that it was the property of B. L. Davis, and that he had employed and directed them to tear it down. The reply traversed the affirmative allegations of the answer. Defendants then filed amended answer and cross-petition against B. L. Davis. The court refused to permit this pleading to be treated as a cross-petition. Thereupon B. L Davis tendered an answer and counterclaim, and a petition to be made a party defendant, in which, after denying plaintiff's ownership, he averred that he was the owner and in possession of the destroyed house, that he directed and employed defendants to remove same, and was liable to them for any sum that plaintiff might recover from them and that the plaintiff was insolvent. The court did not permit either of these pleadings to be filed. Upon a trial, plaintiff recovered a verdict and judgment for $525, including both compensatory and punitive damages, and defendants have appealed.

The plaintiff is the son, and defendants are the sons-in-law, of B. L. Davis. It is quite apparent from the pleadings that the real and only issue, aside from the value of the house which is merely incidental, is the title to a small tract of land, and that the real parties to the controversy are the plaintiff, Lon Davis, and his father, B. L. Davis. We are therefore of the opinion that the court erred in refusing to file pleadings of defendants and B. L. Davis, making him a party (Civil Code, §§ 18 and 23; Le Moyne v. Anderson, 123 Ky. 584, 96 S.W. 843, 29 Ky. Law Rep. 1017); but as this error does not seem to have been prejudicial to defendants, and B. L. Davis does not complain thereof, the reversal, that must be ordered upon other grounds, cannot be rested thereon.

It is admitted that the small tract upon which the destroyed house was located is within the boundaries of the farm conveyed in 1870 to B. L. Davis by deed duly recorded; that so far as the record is concerned the title is still in him; that he has resided upon the farm, within about 200 feet of the destroyed house, for more than 30 years, and with his wife, Mary E. Davis, until her death 11 years ago.

Plaintiff seeks to establish title to the small tract upon which the house in question was located under parol gift from his mother, followed by adverse possession for more than 15 years. He testifies that more than 20 years ago his father conveyed his entire farm to a son, Charles Davis, who in turn conveyed it to his mother, Mary E. Davis; that thereafter, and more than 16 years before this action was filed, his mother and father, as a gift and in consideration of $75, which he paid to another of their sons for them, staked off the house and lot in controversy and gave same to him; that he immediately entered upon and took possession thereof, and that continuously from that day he has been in possession thereof, claiming same adversely to, and with the...