Mosley v. Morgan, et al.
| Decision Date | 11 January 1911 |
| Citation | 141 Ky. 557 |
| Court | Kentucky Court of Appeals |
| Parties | Mosley v. Morgan, et al. |
Appeal from Leslie Circuit Court.
T. G. LEWIS and METCALF & JEFFRIES for appellant.
J. M. BECKWELL and CLEON K. CALVERT for appellee.
Appellee, Lee Morgan, instituted this action against Elihu Mosley, W. S. Mosley and Swann-Day Lumber Company, to recover the value of certain timber which it is alleged the defendants cut and removed from a tract of land of which appellee Morgan was the owner and in possession. To the petition Elihu Mosley filed an answer denying the allegations of the petition and pleading that the timber was cut from a tract of two hundred acres of land of which he was the owner by adverse possession for more than fifteen years. The affirmative allegations of the answer were denied by reply. During the progress of the action the appellee, H. M. Hensley, came in by answer and cross-petition and charged that he was the owner of all the oak trees standing and growing upon a certain tract of land (describing the same) and that a portion of the timber in controversy was cut from this land; that his title to said timber was superior to that of either Lee Morgan or Elihu Mosley. He then asked judgment against Lee Morgan and Elihu Mosley for the sum of thirty dollars. Other pleadings were filed, completing the issues. A jury trial was had, which resulted in a verdict and judgment in favor of appellee Morgan for eight dollars and a verdict and judgment in favor of appellee Hensley for six dollars. From this judgment Elihu Mosley appeals.
It appears that appellee, Lee Morgan, derived title from the Zach Morgan fifty-acre grant No. 67761; by deeds from Zachariah Morgan to Minerva Morgan, and from John H. Morgan and Minerva Morgan, his wife, to appellee, Lee Morgan. It is insisted by counsel for appellant that a copy of the Zach. Morgan fifty acre grant is not in the record. At the time appellant's brief was filed this was true; since that time, however, a copy of the grant in question has been filed by consent of counsel. That being true, it follows that Lee Morgan has shown a good title of record to that part of the timber for which he recovered judgment.
Appellee H. M. Hensley, in making out his chain of title, introduced, first, a copy of the William Mattingly grant, No. 11707, surveyed September 14, 1847. He then followed this up with a chain of deeds to the Kentucky Coal Lands Company. Then follows a contract in writing, signed by Kentucky Coal Lands Company, per A. K. Cook, agent, by which the Kentucky Coal Lands Company sold to appellee Hensley all the merchantable timber situated on the company's lands on Short Creek and Muncy Creek in Leslie county, and giving to appellee seven years from the first day of January, 1908, within which to remove the timber. It is now insisted that the writing in question was in effect a conveyance of real estate, because the standing timber was not sold in contemplation of immediate severance from the soil, and that the contract, in order to be valid and vest title thereto in appellee should have been executed and acknowledged by the president and secretary of the corporation. Before the court, however, permitted the writing in question to be introduced, it...
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