Middlesborough Waterworks Co. v. Neal

• Citation: 105 Ky. 586,49 S.W. 428
• Parties: MIDDLESBOROUGH WATERWORKS CO. v. NEAL et al. [1]
• Decision Date: 07 February 1899
• Court: Kentucky Court of Appeals

49 S.W. 428

105 Ky. 586

MIDDLESBOROUGH WATERWORKS CO. v. NEAL et al. ^[1]

Court of Appeals of Kentucky.

February 7, 1899

Appeal from circuit court, Bell county.

"To be officially reported."

Action by J. F. Neal and others against the Middlesborough Waterworks Company to recover land. Judgment for plaintiffs and defendant appeals. Reversed.

Chapman & Sampson and Tinsley & Faulkner, for appellant.

W. S Pryor, A. K. Cook, and Thomas H. Hines, for appellees.

PAYNTER J.

The reservoir, boiler house, and engine house of the appellant are situated upon the land in dispute. The appellees claim that the land in contest is covered by patents as follows One of which was issued to James Farmer, July 19, 1826; one to Reuben Gibson, September 3, 1823; one to William Beard No. 15,348, February 1, 1832; and one to William Beard, No. 15,349, February 1, 1832. It is claimed by the appellees that the bodies of land covered by the patents adjoin, constituting a contiguous boundary. Appellant claims the land in contest is covered by patent No. 54,838, for 100 acres, which was issued to Henry Parker, March 1, 1881, upon the survey which he had made on January 15, 1875, and by a patent No. 58,654, for 50 acres, which was issued to him October 19, 1883, upon a survey which he had made March 16, 1881, and the boundaries of which adjoin. We are of the opinion that the land in dispute is covered, in part, by each of the elder patents, so as that all of it is embraced by them. The grants to Parker likewise cover it. The appellant holds the lands as Parker's remote vendee, and claims that it and those through whom it claims have been in the continuing actual adverse possession of the land for more than 15 years next before the institution of this suit, on June 6, 1895. The appellees claim that they have the legal title to the land covered by the elder patents, because of various conveyances from the patentees and others. So many questions have been raised in this case for our consideration that each will be considered as briefly as possible.

The appellees offered, and the court permitted to be read, what purported to be a certified copy of a deed, dated August 10, 1825, for part of the land covered by the Reuben Gibson patent. The copy would indicate, if admissible as evidence, that the original had been witnessed by Robert George, John Turner, and George W. Craig. The clerk of the Harlan county court (Harlan county being the county in which the land was then situated) certifies that "the foregoing indenture of bargain and sale from Reuben Gibson and Henrietta, his wife, to Johnson Drake, was presented to me in my office on the 24th day of October, 1825, and acknowledged by the subscribing witnesses, and the same is truly admitted to record in the clerk's office of the county court aforesaid." It is unnecessary to quote the statute then in force, which required that the witnesses to the execution of a deed were to prove its execution; i. e. they must make oath to such facts as would show that the deed had been executed by the grantor. The law did not authorize a clerk to place a deed upon record when acknowledged by any one other than the grantor. The grantor in a deed is the only one who can acknowledge its execution. We must presume that the clerk did exactly what his certificate states was done. It would be a violent presumption for the court to say that the clerk intended to certify that the witnesses had proven the execution of the deed, instead of saying that they had acknowledged it. It follows, as the execution of the deed was not properly proven, that the clerk was not authorized to record it, and a copy of it is not admissible as evidence.

The court admitted as evidence a copy of the deed of William Beard to Thomas J. Beard, dated March 9, 1852. Names are appended to the deed in the form as follows:

"William Beard [Seal.],

"Per Fleming Campbell."

"Signed in the presence of:

"Fleming Campbell.

"James H. Lee.

"Jefferson Craig."

The original deed was not offered. The clerk certifies that the deed was produced in his office, and proven by the oath of Fleming Campbell and James H. Lee, the subscribing witnesses, to be the act and deed of William Beard. The court has reached the conclusion (not without difficulty) that the copy of the deed was admissible as evidence. If William Beard had directed some one to write his name to the deed, and it was done in his presence, it would have been his act.

Counsel for the appellant insist that the name of "William Beard, Per Fleming Campbell," imports that it was the act of Campbell, and not of Beard; that Campbell was executing the deed for Beard. This argument has much plausibility, but it is hardly probable that Fleming Campbell would appear on the instrument as a witness to his own act if he was assuming to represent Beard in its execution. Besides, there is proof of Campbell and Lee before the clerk that it was intended to be, and was, the act of Beard, and not of Campbell. We have concluded that the signature thus made simply imports that Campbell signed Beard's name at his request, and added his name to show that it was by him that Beard's name was written. The facts of the case sufficiently show an acceptance of the deed by the grantee.

It appears that at the March term, 1853, of the Knox circuit court, George Brittain recovered a judgment against Thomas J. Beard for $52.60 and interest and costs, and at the same term John G. Newlee recovered a judgment against him for $125.62 and interest and costs. Appellees fail to exhibit the executions which they claim were issued upon the judgments, but by parol testimony endeavor to show that they were lost or misplaced, and that they were levied upon the land which William Beard had conveyed to Thomas J. Beard; that on the 23d day of May, 1853, the land was sold, and at which sale F. Campbell became the purchaser, at a price which paid the Brittain execution and more, and the balance of the purchase money was to go as a credit on the debt of Newlee; that afterwards, to satisfy the balance of the judgment of Newlee, the equity of redemption was sold, on the 24th day of October, 1853, and John G. Newlee became the purchaser. It is claimed Campbell executed a bond for the amount which he agreed to pay for the land (he says he never paid it, and does not know who did), and that he was acting for Newlee in the purchase. It seems that Thomas J. Beard was living upon the land at the time it is claimed that it was sold under the execution, and, according to some of the testimony, he remained on it until 1858 or 1859. There is little evidence of doubtful competency in the record tending to show that George Brittain had possession of part of the land under Newlee for a time. There is also testimony tending to show that he claimed to hold under Thomas J. Beard. Unless Brittain held possession of part of the land for him, Newlee never was in possession of any part of it.

The appellees claim to have derived title through John C. Colson Sr., and they endeavored to show that in 1872 or 1873 he let John G. Newlee have some money, and in consideration of which he was to have the land. He lived near the land, but never had possession of any part of it. The children of John G. Newlee attempted to convey it to him by a deed dated April 20, 1882, at which time Parker was in the actual adverse possession of it. To avoid the effect of the statute against champerty, the appellees endeavored to show that Newlee had made a verbal sale of the land to Colson when the land was not in the adverse possession of Parker, and, to carry that out, the deed of the heirs of Newlee was made. The evidence upon this question is of a very unsatisfactory character, and the circumstances developed in the case create a very serious doubt in the mind of the court as to whether such a contract of sale was ever made, although it does not show that Newlee borrowed some money of Colson. The deed which the heirs of Newlee made to John C. Colson, Sr., recites the consideration to be the sum of $500 to them in hand paid; and Parker testifies that W. H. Newlee, one of the heirs of John G. Newlee, told him some time after the survey was made, in 1875, that he would put the matter in the hands of a man who would get him off of the land; and we find about that time or...