Newman v. Newman

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: OSBORNE
• Citation: 451 S.W.2d 417
• Decision Date: 27 February 1970
• Parties: Richard NEWMAN, Appellant, v. Diamond NEWMAN et al., Appellees.

Page 417

451 S.W.2d 417 Richard NEWMAN, Appellant,
v.
Diamond NEWMAN et al., Appellees. Court of Appeals of Kentucky. Feb. 27, 1970.

Page 418

Joe Hobson, Prestonburg, for appellant.

Cordell H. Martin, Hindman, Rudy Yessin, Frankfort, Paul Combs, Prestonburg, for appellees.

OSBORNE, Judge.

Appellant, Richard Newman, instituted this action alleging that he is owner of a certain boundary of land by reason of having held it for the past fifteen years adversely to the appellees, who are in the main, his brothers and sisters. Title to this same property has previously been before this court in a proceeding in which appellant, Richard Newman, claimed title under a deed from his mother and father. His claim in that action was made against his brothers and sisters, the same parties who appear as appellees in this action.

The trial court entered summary judgment for the appellees on the grounds that the previous proceeding, styled Newman v. Kentucky-West Virginia Gas Company, Ky., 372 S.W.2d 410, (1963), is res adjudicata to the issues raised in these proceedings. In the present proceedings appellant alleges that he took possession of the property in question on April 19, 1944, and continued in possession openly, notoriously and adversely until April 19, 1959.

Appellees contend and the trial court held that this claim of adverse possession could have been presented in the previous litigation as final judgment was not entered therein until November 11, 1960.

In order to answer the competing contentions, it is necessary that we first examine the original proceedings decided by this court in 1963. These proceedings started out as an action by Richard Newman as executor of the last will and testament of his mother, Merica Newman, against the Kentucky-West Virginia Gas Company. In the original complaint appellant alleged that his mother owned certain real estate prior to her death. He alleged a deed from his mother to him executed during her lifetime conveying an undivided one-half interest in the land in controversy. He alleged that he was now the executor of his mother's will and that the Kentucky-West Virginia Gas Company was producing gas from the property jointly owned by him and his mother's heirs and was indebted to him and his mother's estate for gas. Kentucky-West Virginia Gas Company by its answer claimed credit for certain payments previously made and admitted that it had accumulated funds which it was willing to pay to the rightful owner pursuant to a judgment of the court. On December 30, 1953, an agreed judgment was entered in the foregoing proceedings terminating the controversy between Richard Newman as executor of his mother's estate and the Kentucky-West Virginia Gas Company. On June 10, 1954, appellant filed an amended complaint alleging that his brothers and sisters were necessary parties to the above action as they were heirs at law of Merica Newman and that future proceedings of the case would involve settlement of the estate of Merica Newman.

On December 5, 1956, in an answer and counterclaim, the brothers and sisters asked for an accounting from the appellant for funds which had come into his hands as executor. They denied that he was validly acting as executor. By way of cross complaint they alleged that the deed dated January 1, 1942, from Merica Newman and her husband, John Newman, to Richard Newman recorded in deed book 64, page 219, in the Knott County Clerk's office was void and champertous and that the said Richard Newman had no interest other than as an heir of Merica Newman in the property and in the royalties from Kentucky-West Virginia Gas Company.

Page 419

Without further detailing the litigation between the parties, we believe it is sufficient to point out that the trial court found the deed to be...