Shield's Heirs v. Batts

• Court: Kentucky Court of Appeals
• Writing for the Court: ROBERTSON, CHIEF JUSTICE:
• Citation: Shield's Heirs v. Batts, 28 Ky. 12 (Ky. Ct. App. 1830)
• Decision Date: 25 October 1830
• Parties: Shield's Heirs v. Batts, & c.

28 Ky. 12

Shield's Heirs v. Batts, & c.

Court of Appeals of Kentucky.

October 25, 1830

Dower. Execution. Assignment of Dower. Quarantine. Plantation. Possession. Seven Years' Limitation.

ERROR TO THE HENRY CIRCUIT; HENRY DAVIDGE, JUDGE.

Monroe for plaintiff.

Mills and Brown, for defendants.

OPINION

ROBERTSON CHIEF JUSTICE:

In 1785, Patrick Shields procured a patent for four hundred acres of land; and in 1786 he obtained another patent for two thousand acres, adjoining the four hundred acres.

In the fall of the year, 1786, P. Shields settled on his four hundred acres, claiming the possession of both tracts. In the spring of 1787, he removed from the land, but returned to it in 1795, when he settled on the two thousand acre tract, on which he lived until 1797, when he died; and on which his widow and children have ever since resided. In 1796 he sold by verbal contract, one hundred acres of the large tract without designation of boundary to Cloyd, who, in that year settled upon the land, and who, or those holding under him, continued to occupy it, until Alexander Shields, one of the sons of P. Shields, several years after his father's death, took possession of it. Alexander Shields occupied the land without restriction as to quantity, and enjoyed the use of the whole two thousand acres, so far as he chose to use it as one of the heirs of the patentee, until his death in 1814; and his widow has retained the possession and use, in the same way, ever since.

On the 14th of November, 1812, sundry writs of " venditioni exponas " were issued against the estate of the widow and heirs of P. Shields, for small sums, amounting in the aggregate to $167 83 cents, in virtue of which the sheriff, to whom they were directed, sold, for the amount due upon them, to Allen Stewart and Morgan Bryan, two of the execution creditors, one thousand acres of the two thousand acres; " five hundred acres to be taken off the most northwardly side of (the widow's) dower-right, and five hundred acres to be taken off the most northwardly side or end of the said Alexander Shield's part."

In 1813, on the application of Stewart and Bryan, commissioners were appointed by the county court, to make partition of the land, and to assign the widow's dower, she never having procured or applied for an assignment. The commissioners assigned the dower, and made the partition so as to suit the sheriff's sale; and thereupon, together with the sheriff, they made a deed to Stewart and Bryan, for five hundred acres of the part so assigned to the widow, and for four hundred and ninety-two acres of the part allotted to Alexander Shields, the first parcel including the residence of the widow and the latter, that of Alexander!

Bryan and Stewart, thus armed, forthwith brought an ejectment against the widow and Alexander Shields, and obtained a judgment of eviction against the former. The sheriff returned on the habere facias, which was issued on this judgment, that he had turned the widow out, and put Stewart and Bryan in.

But it appears from the proof in the record, that as soon as she was put out, the lessors departed, and she instantly resumed the possession, and has ever since retained it. Two of the heirs of P. Shields lived with their mother, and they were not parties to the ejectment. It does not appear whether they were minors or not, when the judgment was obtained.

In 1802, Stewart settled on sixty-five acres of land which he had purchased from Lynch, within the boundary of the two thousand acres patented to P. Shields, and afterwards sold it to Batts, who continued to occupy it until since 1814. The patent of Lynch was posterior to that of Shields, and the sixty-five acres did not interfere with the enclosures of Alexander Shields, or the widow of P. Shields. After the execution of the habere facias, Stewart cut some house logs, and tapped some sugar trees on the land which he purchased at the sheriff's sale, but made no improvement or any other kind of entry upon it, so as to disturb the possession of Alexander Shields, or that of the widow of P. Shields.

In 1825, Hall settled as a tenant under the claim of Stewart, on the land allotted to the widow by the commissioners, and included in the deed by the Sheriff and the commissioners; the place where he settled, had never before been in the possession of Stewart or any other person under his claim, except so far as the cutting of the house logs, and the tapping of the sugar trees, and the execution of the habere facias, might be considered as constituting possession; and the only claim, which Stewart, or any person holding under him, ever had to the place settled on by Hall, was derived from the sheriff's sale and the habere facias possessionem.

Alexander Shields having died intestate in 1814, this ejectment was brought in 1827, against Hall, on a demise by the heirs of Patrick, and of Alexander Shields. On the trial, such instructions were given by the circuit court, as left the jury no alternative. In obedience to the instructions of the court, a verdict was returned for Hall and Batts, who was also made a defendant; and judgment was rendered accordingly.

The defendants, having shown that a patent to Samuel Oldham, of a prior date to that of P. Shields, covered Shield's two thousand acres, (but from which they had derived no claim whatever, but the right to defend themselves under it as an outstanding title which might show, that the lessors had no right of entry) obtained from the court, an instruction to the jury which, in substance and effect, directed them that Oldham's patent protected the defendants, and that therefore, they had a right to a verdict.

The court also overruled several motions for instruction made by the plaintiffs, which will not be...