Petrey v. Adkins

• Decision Date: 12 October 1923
• Citation: 255 S.W. 87,200 Ky. 463
• Parties: PETREY ET AL. v. ADKINS ET AL.
• Court: Kentucky Court of Appeals

255 S.W. 87

200 Ky. 463

PETREY ET AL. v. ADKINS ET AL.

Court of Appeals of Kentucky.

October 12, 1923

Appeal from Circuit Court, Whitley County.

Action by Mary L. Carr Petrey and others against John Adkins and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Stephens & Steely, of Williamsburg, for appellants.

H. C Gillis, of Williamsburg, for appellees.

THOMAS J.

The subject-matter of this litigation is the ownership and the right to the possession of a tract of land in Whitley county containing some 40 or 50 acres. The petition filed in the Whitley circuit court by appellants and plaintiffs below Mary L. Carr Petrey and others, against appellees and defendants below, John Adkins and others, alleged ownership of the land by plaintiffs, and that defendants were wrongfully in the possession of it and committing trespasses thereon by cutting and marketing timber therefrom. The answer denied plaintiffs' title, and alleged title in the defendants, and contained a plea of adverse possession and the defense of champerty, neither of which was controverted by reply, or by an order of court. The proof was taken by depositions, either by agreement of parties or by their acquiescence. After it was completed on both sides and the depositions filed, plaintiffs entered motion to transfer the case to the ordinary docket for trial by a jury, which the court overruled, and submitted the case as an equity one, and after hearing the proof dismissed the petition, which was followed by plaintiffs' prosecuting this appeal.

The case is greatly simplified because of a stipulation entered into between the parties and filed in the cause, in which it is agreed that plaintiffs and defendants "claimed title to the land in controversy from a common source, to wit, from said David Adkins, Jr." A chain in the title of defendants is a deed executed by David Adkins, Jr., to Enoch Bird (through whom defendants claim) on April 11, 1864, and it is stipulated that defendants hold a connected chain of title from Bird to themselves; so that, if the description contained in the Bird deed includes the land in controversy the judgment was proper. There is no dispute between the parties as to the location of the calls and boundaries of that deed until the tenth call is reached. It reads:

"Thence crossing the road east with the old line to the corner in the gap of the ridge between Mud and Cain creek."

The remaining two calls are:

"Thence north to Adkins' old corner, a white oak; thence to the beginning."

The "old line," referred to in the tenth call, was a line in the exterior boundary of a prior patent issued to David Adkins, Sr., who was the father of David Adkins, Jr., at the terminus of which plaintiffs claim there is a "gap of the ridge," and that it was the intention of the parties to run the next or eleventh line in the deed from that gap to the white oak mentioned in the eleventh call, and which was also a call in the prior patent, and, if that should be the correct interpretation as to the eleventh line in the deed, then the land in controversy is not included therein, and plaintiffs should recover.

On the other hand, defendants contend that the designation "old line," in the tenth call of the deed, was not intended to refer only to the particular straight line between calls 9 and 10 of the prior patent (the same as in the deed), but that it was intended for that call to run around with the exterior boundaries of the prior patent to another proven gap of the ridge between Mud and Cain creeks and from that gap north to the white oak corner, and from thence to the beginning, which, if true, would include the land in the Bird deed, and entitle defendants to recover. It is conceded by ...