Potter v. Webb

• Decision Date: 07 November 1919
• Parties: POTTER v. WEBB ET AL.
• Court: Kentucky Court of Appeals

216 S.W. 66

186 Ky. 25

POTTER v. WEBB ET AL.

Court of Appeals of Kentucky.

November 7, 1919

Rehearing Denied Dec. 19, 1919.

Appeal from Circuit Court, Letcher County.

Suit by Nancy Webb and others against W. H. Potter and others. Judgment for plaintiffs, and the named defendant appeals. Reversed and remanded, with directions.

D. D Fields, of Whitesburg, Ed. C. O'Rear, of Frankfort, Hager & Stewart, of Ashland, and W. H. May, of Jenkins, for appellant.

Blair &amp Hawk, of Whitesburg, F. W. Stowers, of Pikeville, and W. G Dearing, of Whitesburg, for appellees.

CLARKE J.

Appellees plaintiffs below, the real representatives of John B. Adams, deceased, sued appellant, W. H. Potter, and others in possession, to quiet their title to an undivided one-half interest in certain lands covered by a patent issued to John B. Adams and Benjamin Adams in 1860, and for partition of the land. Potter answered denying plaintiffs' title and asserting title in himself by adverse possession by himself and predecessors in title for more than 40 years. The case was prepared and tried solely upon the issues between the plaintiffs and the defendant Potter, and the court having adjudged that plaintiffs were the owners of an undivided one-half interest in the land and ordered same to be partitioned, charging Potter with a certain acreage in the possession of one of his codefendants under title from his predecessor in title, Potter appeals.

Manifestly the first question for our consideration is whether or not the plaintiffs were the owners of an undivided one-half interest in the land, for, unless so, they had no right to disturb the admitted possession of Potter, which possession he claims has been held by himself and his predecessors in title adversely to plaintiffs and all the world for more than 40 years, but which possession plaintiffs claim has been amicable through the whole of that period because of their being cotenants as a result of defendant's predecessor in title having purchased the other undivided one-half interest therein from Benjamin Adams in 1874.

That plaintiffs are the only heirs of John B. Adams, who by the patent above mentioned acquired title to an undivided one-half interest in the land in dispute, and that he owned same when he died intestate in 1863, is admitted; but it is insisted by the defendant that plaintiffs were divested of this interest in the land by the proceedings and judgment in an action filed after the death of John B. Adams by his adminstrator, Randolph Adams, against his heirs and creditors, for the purpose of settling his estate. If this is true, not only would they have no title to the land, but the possession of the defendant and his predecessors in title, which is overwhelmingly established by the evidence, was adverse as to plaintiffs, as it is only upon the theory that Potter and his vendors were their cotenants that they seek to avoid his claim of title by adverse possession. It is not denied that the court had jurisdiction of the subject-matter and of the real representatives of John B. Adams then in existence (some of whom are plaintiffs, and others, having died, are represented by their heirs, in this action) in the suit brought in April, 1866, by Randolph Adams, as administrator of John B. Adams, against his heirs and creditors, to settle his estate; but it is insisted by plaintiffs that the record in that case does not show that their interest in the land now in dispute was sold in that action, though ordered to be sold to pay their ancestor's debts. The records and papers in that old suit that are available at this late date are very meager and obviously incomplete. Not only so, but the record itself furnishes proof positive of great carelessness and frequent failure in recording upon the order book orders that were made in the case, as well as in preserving papers and written orders which were actually filed or lodged and treated as filed in the case. Reports of commissioners, written orders, etc., are noted of record as having been filed that are not found in the papers, while commissioners' reports and other papers are found with the papers in the case, both with and without indorsement of having been filed, of which there is no record in the order book.

But we must take the record as we find it, and from it decide in this, another action, between different parties, the question upon which depends plaintiffs' rights; and, as we approach this question, we are confronted with a controversy between counsel as to whether or not this is a collateral attack by plaintiffs upon the judgment in that case, which ordered sold the undivided interest in the land now in dispute to pay the debts of their ancestor, from whom they claim to have inherited the land. Unquestionably, if the old record shows affirmatively that the land was sold pursuant to the judgment which is recorded, ordering a sale thereof, and that the sale was confirmed, an attack upon its validity such as this would be a collateral attack upon the judgment in that case; and since the question now before us is whether a sale was made and confirmed of the land ordered therein to be sold, which must be determined from the record alone, there can be no doubt, it seems to us, that this is a collateral attack upon the judgment and record in that case. It is certainly not a direct attack against same. Harrod v Harrod, 167 Ky. 308, 180 S.W. 797. The argument of counsel for plaintiffs that it is not a collateral attack against the judgment in that case, because of the failure of the record to show that the judgment which was entered was enforced, so as to divest them of title, is in our judgment unsound, because it assumes as true the very fact at issue, and...