Stephenson Lumber Co. v. Hurst

• Decision Date: 26 June 1934
• Citation: 83 S.W.2d 48,259 Ky. 747
• Parties: STEPHENSON LUMBER CO. v. HURST et al.
• Court: Kentucky Court of Appeals

83 S.W.2d 48

259 Ky. 747

STEPHENSON LUMBER CO. v. HURST et al.

Court of Appeals of Kentucky

June 26, 1934

As Modified on Denial of Rehearing June 18, 1935.

Appeal from Circuit Court, Breathitt County.

Action by the Stephenson Lumber Company against Laura Hurst and others after revival of action originally begun by plaintiff against R. A. Hurst. From a judgment dismissing its petition plaintiff appeals.

Affirmed.

Samuel M. Wilson and Wilson & Harbison, all of Lexington, for appellant.

A. F Byrd, of Lexington, for appellees.

RICHARDSON Justice.

This is an action to quiet title to land and for injunctive relief.

The Stephenson Lumber Company, a co-partnership, filed this action in the Breathitt circuit court on the 21st day of September, 1911, alleging that it was the owner and in actual possession of a boundary of land, which included certain 280.11 acres. It charged that I. N. Patterson, and E. B Patterson and wife, by deed, containing a covenant of general warranty, executed and delivered by them, and accepted by it, conveyed to it the timber on a large boundary, for an agreed consideration; that at the time they did so, they had no title to the 280.11 acres. It also sought to recover of them the consideration for the timber on the 280.11 acres. It alleged that they were threatening to erect a dwelling on this acreage and place a tenant therein, and would do so unless prevented by an order of court.

The Pattersons and Hurst for defense, traversed the petition, asserted adverse title, and pleaded res judicata.

An amended petition was filed detailing fully the title of the Stephenson Lumber Company. A motion to elect was sustained, and the Stephenson Lumber Company elected to prosecute its cause of action to quiet the title of the 280.11 acres, and prevent by injunction trespass thereon. R. A. Hurst, who was made defendant, died, and the action was revived as against his heirs. A second amended petition was filed, again setting up the cause of action for the purchase price of the timber on the 280.11 acres. Issues were joined by responsive pleadings, and by taking as controverted of record the amendment setting out the source of title of the Stephenson Lumber Company.

The action was submitted for trial on the pleadings and the evidence; a judgment was entered dismissing the petition. The Pattersons and Hurst asserted in their answer title to a large boundary of land including the 280.11 acres; the Hurst heirs were adjudged the owners of it as described in the judgment, and a writ of possession was awarded.

The parties in their briefs have devoted much time and space in presenting patents as the source of their respective titles.

To dispose of the plea of res judicata it is sufficient to say that the order of court entered in Patterson v. Stephenson Lumber Company on March 14, 1920, which is relied upon as the basis of the plea, expressly states that the counterclaim of the Stephenson Lumber Company, which was based on the failure of title to the 280.11 acres, under its conveyance from the Pattersons, was "dismissed without prejudice to any future action thereon, with leave to withdraw any title papers." With this language in the order, it is unnecessary to discuss the topic other than to say the order, itself, is a complete answer to the insistence of the plea of res judicata.

In the brief of the Stephenson Lumber Company, we find at the conclusion of its presentation of patents and argument to sustain the same as the source of its title, this language:

"The title of Wooley to the land in controversy is not derived and is not claimed to have been derived from any patent or patents granted by the Commonwealth, but said title is a title by actual adverse possession on the part of Wooley's executor and of the antecedent owners and occupants of the land from whom, by a regular succession of conveyance, Wooley had derived his title. In addition to this, it will be borne in mind that the plaintiffs contend that the defendant, I. N. Patterson, and those claiming under him, never at any time had either a good or valid title to the land in controversy, and that they were never at any time in the possession of said land, and the possession acquired by the plaintiffs of said land was acquired not from I. N. Patterson or any one claiming under him, but from the widow and executors of C. H. Wooley, deceased. It is further contended, on behalf of plaintiffs, that any paper title I. N. Patterson may have had to the land in controversy inured to the benefit of plaintiffs for the reasons hereafter to be explained."

With this admission of the Stephenson Lumber Company, we shall confine our consideration of the case to the question of its title by adverse possession, and champertous conveyance of the timber on the 280.11 acres by Pattersons to the Stephenson Lumber Company.

It is undisputed that the Pattersons and Hurst and no one under whom they asserted title to the 280.11 acres, at the time of the institution of this action or any time prior thereto, had the actual possession of the described land. The Stephenson Lumber Company, and no one for it, for the purpose of cutting the standing timber under the Pattersons' deed, entered upon the 280.11 acres. The deed of Pattersons to the Stephenson Lumber Company was executed and delivered on August 30, 1906. The executor of C. H. Wooley, in the early part of September, 1906, conveyed to the Stephenson Lumber Company a large boundary of land including the 280.11 acres. In 1889, W. A. Gunn and C. H. Wooley obtained options for the purchase of certain tracts of land from Gill Williams, J. W. Cardwell, and others. W. A. Gunn conveyed his interests in the Gunn and Wooley tracts, including the 280.11 acres, to Wooley.

In August, 1889, in accordance with the title bonds, deeds were executed and delivered to Gunn and Wooley. The several boundaries covered by their deed, embraced the "Evans Davis" and the "Gill Williams" tracts, which included the 280.11 acres. Only the westerly portion of these two tracts is involved. The controversy arises out of a conflict of a part of the easterly end of the "Hurst and Pattersons" lands, with a portion of the westerly sections of the "Evans Davis" and the "Gill Williams" land. The boundary of the 280.11 acres is made up of a part of the exterior of the "Evans Davis" and the "Gill Williams" tracts along their northern, western, and southern sides. The "Evans Davis" tract is overlapped in part by R. P. Davis, Patent Nos. 38531 and 38535, under which the Pattersons and Hurst assert title to the 280.11 acres. Probably R. P. Davis Patent No. 38551 covers a little corner of the "Evans Davis" tract.

W. E. Gunn, a son of W. A. Gunn, represented his father and Wooley in purchasing and securing deeds to the "Gunn" and "Wooley" land. At the time he obtained the option for the purchase of the land, the boundaries thereof had been surveyed and the lines had been marked, and were observed by W. E. Gunn; two or three cleared fields, a house, stable, and other improvements were on the "Gill Williams" land, and Gill Williams was living on, farming, and cultivating it at the time the options were secured. The "Gill Williams" land was located on a branch known as "McDaniels Fork" or "Moorefield Fork." Many years previous to the date of the options, John McDaniels had obtained a patent for 50 acres in the vicinity of this branch and presumptively this accounts for the name of the branch. But the Stephenson Lumber Company asserts no title through the patent of McDaniels. At the time he secured the option for the land within the "Evans Davis" boundary, there was a field of considerable size on the branch toward the "Gill Williams" land, which extended to the top of the mountain. "There were some improvements along the main branch" (Haggins Fork), "beginning at the lower end where there was a fence;" also some "improvements along another small branch on the right hand side."

Immediately upon the acceptance by Gunn and Wooley of deeds to the "Evans Davis" and the "Gill Williams" tracts they took possession of same by placing their tenants in the actual possession of them. Their tenants continued actually to occupy the "Evans Davis" and the "Gill Williams" tracts, under the deeds of Gunn and Wooley who continued open possession and asserted adverse title to a well marked and defined boundary as against Pattersons and the world, until they conveyed it in fee, with a covenant of general warranty, to the Stephenson Lumber Company. The Stephenson Lumber Company entered upon the actual possession through its tenants, the disputed land, adversely, continuously, and openly asserted title to the "Evans Davis" and the "Gill Williams" tracts against the Pattersons and the world, and continued to do so to the commencement of this action.

The deed to the "Evans Davis" tract of Evans Davis from Stephens Carpenter is dated May 22, 1888, and deed from Evans Davis to J. W. Cardwell, May 3, 1889; also deed from Henry Williams to Gill Williams, August 1, 1887. At the time the deeds of Gunn and Wooley were executed, it was observed that the outside boundary lines of the "Evans Davis" and the "Gill Williams" tracts were plainly marked and corresponded with the survey then being made for the purpose of executing the deeds to Gunn and Wooley. John McDaniels age 76, J. D. Jones, age 74, and Bryson Fugate, age 71, testified that they had known the "Evans Davis" and the "Gill Williams" tracts the greater portions of their lives, and were able to describe the improvements, the occupancy, and name the occupants, from 1861 to the date of the conveyance to Gunn and Wooley, as well as thereafter. According to their testimony, residences and outbuildings used in connection...