Parsons v. Dills

• Court: Kentucky Court of Appeals
• Writing for the Court: CLAY, C.
• Citation: Parsons v. Dills, 159 Ky. 471, 167 S.W. 415 (Ky. Ct. App. 1914)
• Decision Date: 09 June 1914
• Parties: PARSONS ET AL. v. DILLS ET AL.

167 S.W. 415

159 Ky. 471

PARSONS ET AL. v. DILLS ET AL.

Court of Appeals of Kentucky.

June 9, 1914

Appeal from Circuit Court, Pike County.

Actions by R. C. Parsons and others against Ann Dills and another and by J. A. Dills against R. A. Thacker and others. From a judgment in favor of Ann and J. A. Dills, R. C. Parsons and others appeal. Reversed and remanded.

Stratton & Stephenson, of Pikeville, for appellants.

Roscoe Vanover and Childers & Childers, all of Pikeville, for appellees.

CLAY C.

Richard Parsons died in the early 70's, a resident of Pike county, leaving surviving him a widow, Lydia Parsons, and six children, R. C. Parsons, Sarah Parsons, Polly Parsons, Nancy Parsons, Susie Parsons, and Elizabeth Parsons, who afterwards married Timothy Thacker. R. C. Parsons acquired by deeds the interest of his sisters Sarah, Polly, Nancy, and Susie in whatever lands Richard Parsons owned at the time of his death. Elizabeth Thacker, whose interest he did not acquire died in the year 1899, leaving surviving her husband, Timothy Thacker, and five children, R. A. Thacker, James Thacker Thomas Thacker, David Thacker, and William Thacker. Prior to his death, Richard Parsons had patented several tracts of land on Red creek. Among these patents are the following:

(1) 1025-acre patent, with exclusions amounting to 825 acres surveyed June 27, 1860;

(2) 50-acre patent, surveyed April 27, 1843;

(3) 100-acre patent, surveyed February 11, 1843;

(4) 50-acre patent, surveyed February 11, 1843;

(5) 50-acre patent, surveyed February 22, 1844;

(6) 300-acre patent, surveyed December 9, 1850;

(7) 100-acre patent, surveyed September 4, 1858;

(8) 50-acre patent, surveyed September 4, 1858.

He also had a deed from William Atkins, dated November 30, 1865, conveying to him the land covered by a patent issued to David Pauley on a survey dated February 11, 1843.

On December 29, 1907, appellants R. C. Parsons and R. A. Thacker and his brothers, filed suit against appellees, Ann Dills and John A. Dills, to recover the value of certain timber alleged to have been cut by appellees from the foregoing tracts of land, and to quiet their title thereto. Appellees controverted the allegations of the petition, and pleaded title to the land through Col. John Dills. They also pleaded title by adverse possession. On April 12, 1912, J. A. Dills sued R. A. Thacker and others to recover the value of certain timber cut and removed by them from the lands, and to quiet his title thereto. At the same time he sued out an attachment, which was levied on certain timber cut by the Thackers. The two actions were heard together. The Dills were adjudged to be the owners of the land described in the petition of R. C. Parsons, and their title thereto quieted. The attachment sued out in the suit of Dills v. Thacker was sustained, and the Dills given judgment against the Thackers for $33. R. C. Parsons and the Thackers appeal.

Appellants put in evidence the patents issued to their father, Richard Parsons, and covering the lands claimed by them. They also introduced the deed from William Atkins, conveying the David Pauley survey of 1843. Appellees, Mrs. Dills and J. A. Dills, proved that she was the widow and he the son of Col. John Dills. They put in evidence the will of Col. John Dills, a deed from C. Cecil and wife to Col. Dills, dated October 3, 1887, and a deed from T. J. Owen, jailer of Pike county, to Colbert Cecil, dated March 24, 1865. These deeds cover and convey five of the Richard Parsons patents, above referred to. The deed made by the jailer was made pursuant to an execution issued in the case of Cecil v. Parsons and Atkins in an action pending in the Pike circuit court. Defendants also introduced in evidence a commissioner's deed, made pursuant to a judgment entered in the equitable action of Dills and Hampton v. William Atkins and Others, pending in the Pike circuit court. This deed conveys several other tracts, but the only one claimed by appellants is the D. Pauley 50-acre patent conveyed to R. C. Parsons by Atkins in 1865. The approval of the circuit judge is not indorsed on the deed. Appellees also introduced several witnesses, who testified that appellees had had tenants on the land in controversy for more than 15 years.

As before stated, the judgment in this case quieted the title of appellees to all the lands claimed by appellants, including the 1025-acre patent of 1860. This patent covers certain tracts of land not covered by prior patents. Appellees did not assert title to any lands claimed by appellants that were not covered by other patents. It was therefore error to adjudge appellees to be the owners of the land which they did not claim.

Appellees did not prove a record title to the land in question. The jailer's deed to Cecil was made pursuant to an execution directed to the sheriff of the county. Section 667, Civil Code, is as follows:

"Every process in an action or proceeding shall be directed to the sheriff of the county; or, if he be a party, or be interested, to the coroner; or, if he be interested, to the jailer; or, if all these officers be interested, to any constable."

In construing this section it has been held that process can be executed only by the officer to whom it is directed. Its...