Poage's Heirs v. Chinn's Heirs
| Decision Date | 11 April 1836 |
| Citation | 34 Ky. 50 |
| Court | Kentucky Court of Appeals |
| Parties | Poage's Heirs <I>vs.</I> Chinn's Heirs. |
THE heirs of Raleigh Chinn instituted this action of ejectment under a patent which issued to their ancestor, in the year 1796; and the heirs of George Poage and of William Bell were made defendants, with the tenants in possession, on whom the declaration was served.
The principal questions presented by the record, grow out of an effort, on the part of the defendants, to bring themselves within the protection of the seven years limitation act of 1809. In order to do this, they introduced the patent of William Bell, dated 1816, and, after proving that it covered the land which was in possession of four of the five tenants sued in the action, and after proving William Bell's death prior to 1817, read a power of attorney, dated in 1817, from four persons, of whom three stiled themselves the executors of William Bell, and the fourth claimed an equity in part of the land. The power recites that William Bell had, by his last will, directed his lands in Kentucky to be sold by his executors, and authorizes the attorney to sue for and recover, and to take possession of, or to sell or lease the said land. And they proved, that William J. Bell, who was one of the grantors of the power, and is named therein as one of the executors of William Bell, the patentee, was reputed to be one of his heirs, and also to be one of the executors. They then read as evidence, a contract made by the attorney, under the foregoing power, in the names of the grantors, with David Trimble, for the conveyance of one fourth of ten thousand acres patented to William Bell, and which may be assumed to embrace the land covered by the above mentioned patent; and also a contract between David Trimble and George Poage, dated in April, 1819, whereby Trimble assigns to Poage the one fourth of the ten thousand acres, for which he holds a contract from Bell's heirs, &c.
It was proved, that George Poage, early in the spring of 1819, or 1820, and after his contract with Trimble, purchased the improvement of Robert Toler, who was living within the interference of the two patents, and got possession, claiming under Bell's patent, and immediately rented it; and that it has been since continually rented from George Poage and his heirs, down to Kelly, the tenant in possession; that the successive tenants claimed under Poage and his heirs, who always set up claim under Bell's title, as derived from Trimble. But there was no proof of any connection between the other tenants in possession, besides Kelly, and Poage's heirs or Bell's heirs. The action was commenced on the 2nd day July, 1827.
On these facts, the defendants asked for three instructions, embracing substantially the following propositions: —
First. That if George Poage, holding an equitable interest in the land, from William J. Bell, one of the heirs of the patentee, settled a tenant or tenants within the interference, intending to take possession to the extent of Bell's patent — no person being then in possession within the interference claiming under Chinn's patent — Poage thereby became possessed to the extent of Bell's patent.
Second. That if, since the possession was so taken, Poage and his heirs have continued possessed, by the continued residence of their tenants within the interference, the action is barred as to all the land of which they have thus been so possessed for seven years before the commencement of this suit.
Third. That the action is barred as to all the lands of which the heirs of Bell have been in the adverse possession for seven years before the commencement of this suit, by the continued residence of any persons claiming under them or any of them.
The Court refused these instructions, and instructed the jury, that the seven years limitation could not avail, either Bell's heirs, or Poage's heirs, because the former had no such possession, and the latter no such title, as is contemplated by the statute.
The first instruction moved for the defendants, admits that a possession within the interference, if held under the elder patentee, would repel the constructive extension of Poage's possession, which might otherwise be the consequence of his entering upon the land in the manner and with the intention supposed. But it excludes the idea that any other possession than that of the elder Patentee, would have the same effect. In this particular the instruction is evidently incorrect as a proposition of law. It would be an entire subversion of principle to say, that the bare entry on vacant land by one having no right of entry (either for himself or others) would give him possession of tenements on which he made no entry; or that the taking possession of one tenement in the name of the whole, could give him possession of other tenements, unconnected with that on which he had entered, and occupied by distinct and independent tenants.
An entry, to take possession of vacant land, may be effectual if made upon any part in the name of the whole, because there is no existing possession to be divested. But an entry to gain a possession which is already vested in another, operates by divesting the previous possession; and this it cannot do, even in favor of the legal right of entry, unless made upon the possession which is to be divested. 3. Bl. com. 175; Fox vs. Henton, 4. Bibb, 559. A person in possession without title, may be presumed to be in possession under the paramount legal title, and therefore the entry of the elder patentee, upon every tenement so held, may not be required in order to give him possession of the whole. But there is no such presumption in favor of the junior patent; but the contrary. If therefore, there were any person in possession, within the interference, when Poage entered, though such person may have claimed under no title, such possession could not be considered as enuring to the benefit of the junior grant, and it could not be divested by entry either on vacant land, or on another possession. The evidence in the cause leaves it at least doubtful, whether there may not have been such a possession; and the objection, that the instruction, either assumes that...
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