Miller v. Pryse

• Decision Date: 21 February 1899
• Citation: 49 S.W. 776
• Parties: MILLER et al. v. PRYSE. PONDER et al. v. MILLER et al.
• Court: Kentucky Court of Appeals

49 S.W. 776

MILLER et al. v. PRYSE.

PONDER et al. v. MILLER et al. ^[1]

Court of Appeals of Kentucky.

February 21, 1899

Appeal from circuit court, Lee county.

"Not to be officially reported."

Action by Wash Miller and others against Fannie Ponder to enjoin defendant from cutting and removing timber from land. David Pryse was made a defendant by amended petition, and asserted title to the land. Judgment having been rendered in his favor, the plaintiffs and defendant Fannie Ponder appeal. Affirmed.

J. B White and W. S. Pryor, for appellants Ponder et al. Beckner &amp Jouett, for appellants Wash Miller et al.

PAYNTER J.

The appellants Miller and others filed in the Lee circuit court a suit in equity against the appellant Fannie Wells, who pending the suit, married one Ponder. It is averred in the petition that she, together with the plaintiffs, owned a certain tract of land situated in Lee county, which was described in the petition, and that she was cutting and removing timber from it, and the plaintiffs sought to enjoin her from doing so. She filed an answer, in which she asked for a partition of the land between the plaintiffs and herself according to their respective rights, she being entitled to one-half of the tract, as claimed by her and conceded by the plaintiffs. After commissioners had been appointed, and made their report to the court, the plaintiffs filed amended petitions, to one of which the appellee Pryse was made a defendant. It was averred in these amended petitions that certain companies, which were made defendants, were setting up claims to part of the land, and that Pryse was doing so as to part of it, and that he had a deed covering such part. Plaintiffs further averred that the land claimed by the parties who were made defendants in the amended petitions was principally the land which had been assigned to them, and, if the claimants succeeded in establishing their claim thereto, it would take the principal part of the lot which had been assigned to them. It was, therefore, prayed that the defendants in the amended petitions be brought before the court, and compelled to litigate the question, before the final partition of the land was made. Mrs. Ponder objected to the filing of these amended petitions, and before the defendants answered the court ordered an issue out of chancery to try the title to the land which was claimed by the defendants other than Ponder. This order was made before Pryse filed his answer in the case, and it does not say that an issue is ordered out of chancery as to his claim, but it does substantially recite that it is the issue raised by the parties answering. After Pryse answered, an order was made placing the case on the ordinary docket as to the title and ownership of the land. The parties proceeded to prepare for the trial of the issue ordered out of chancery as in case of actions of ejectment. The plaintiffs regarded that the issue between them and Pryse was to be tried under the order directing it out of chancery. The case went to trial without any objection from them, and they cannot be heard to complain because Pryse's name did not appear in the order. In fact, none of the issues raised by the other answers in the case were disposed of at the trial resulting in the judgment from which the appeals are prosecuted. The plaintiffs claim the land in controversy is covered by the Tarrison Brother patent of 20,000 acres, and that they have acquired the Tarrison title; if not, they claim to have acquired a possessory title thereto. Pryse claims that the land is in the John Carnan patent, a 29,823-acre survey, and that he holds the Carnan title to the land. He also claims that his continued adverse possession of the land would likewise have given him title to it. All of these questions were submitted to the jury by instructions to which there was no objection. Pryse exhibited various deeds tending to show that he had legal title to the land, together with proof tending to establish the fact that it was covered by the John Carnan patent. He also offered testimony tending to establish his right to the land by possession.

We must conclude that the jury found properly on the issues of facts submitted to them under the instructions. Counsel for appellants claim errors were committed at the trial prejudicial to their rights. We will state and consider them. He insists that the deed from B. J. Peters, commissioner, to Daniel Breck, was not admissible as evidence, because it did not sufficiently describe the land. We think that the description contained in the deed, and in the deed to which it referred for a more particular description of the land conveyed, was sufficient, and that it was admissible as evidence. The description embraced the land in controversy if it is situated within the Carnan patent boundary. We do not think the objection to the Crittenden deed is well taken, as we must conclude that the United States district court properly directed its marshal to make the deed. Pryse did not only claim the legal title to the land deducible from the patentee, Carnan, but he claimed, if he did not have that title, he acquired title to it by possession; and the J. W Farmer plat was properly introduced to show the extent of the boundary claimed by him and by those...