Watson v. Wilson

• Decision Date: 16 October 1912
• Citation: 149 S.W. 1120,150 Ky. 27
• Parties: WATSON v. WILSON.
• Court: Kentucky Court of Appeals

149 S.W. 1120

150 Ky. 27

WATSON v. WILSON.

Court of Appeals of Kentucky.

October 16, 1912

Appeal from Circuit Court, Carlisle County.

Action by T. J. Wilson against Aaron Watson. Judgment for plaintiff and defendant appeals. Affirmed.

Jesse F. Nichols, of Bardwell, for appellant.

John E Kane, of Bardwell, and Robbins & Thomas, of Mayfield, for appellee.

WINN J.

This action was begun below by T. J. Wilson to recover of Aaron Watson 200 acres of land. He lost below and brought his case here, where it was affirmed in 141 Ky. 328, 132 S.W. 563, 35 L. R. A. (N. S.) 227; but upon reconsideration the opinion affirming was withdrawn and the case reversed in an opinion in 144 Ky. 352, 138 S.W. 283. Upon return of the case to the lower court, the jury found in favor of Wilson, the plaintiff; and from the judgment upon that verdict Watson appeals. The facts in the case are fully stated in the opinions supra.

As we understand the appellant's position, he now has three principal grounds of complaint: First, that the instruction upon champerty did not extend to the entire land in controversy, but only to such part of it as was actually inclosed at the time of the making of the deeds under which Wilson held; second, because the trial court refused to admit in evidence grants from the commonwealth tending to show that the mainland opposite the island land in controversy had been patented by the commonwealth prior to the grant of the island; third, because the trial court refused to submit to the jury an issue presented by Watson of limitation under section 2513 of the Kentucky Statutes.

On appellant's first complaint: Mrs. Hamilton's testimony is that she lived there nearly four years; that she went on the land in 1896; that her husband died in February 1897, nearly 12 months from the time of going there; that she married her second husband in December, three years later, or in December, 1900, and moved away the same month; that when they went away she rented the land to Caulin; that she and her second husband returned to the land in seven months; that she had there a clearing under fence of about 15 acres; that she claimed the 200 acres; that so far as she knew there was no marked boundary around the 200 acres; that when she first went there (in February, 1896) they had a house on the lower south end of the place, but in the fall or winter built them a house on the north end of the north 100 acres where the fenced and cleared land was; that when she moved away in December, 1900, she left the house vacant; that when she returned in July, 1901, it was occupied, though she did not remember who occupied it; that she did not remain there all the time; that she rented to West Bros. one year; that her patent for the first 100 acres was dated December 31, 1897, and her patent for the second 100 acres was dated June 20, 1900. Wilson's deed to the island No. 3 land is of date January 31, 1898; and his deed to the towheads is of date November 25, 1899. Both are within the four-year period (February, 1896--December, 1900) of Mrs. Johnson's (Hamilton's) residence there; both are of date after the date of her grant of the lower 100 acres in December, 1897; and both are of date before her grant to the upper 100 acres in June, 1900. She had left her house on the lower grant in the winter of 1896-97, and, at the time of both the deeds to Wilson, she was living on the upper end of the upper 100 acres to which at the time she had no grant, nor of which had she made the preparatory survey.

Coming to apply these facts: An inclosure is not generally necessary to sustain the character of possession necessary to sustain the champerty statute. But as to the upper 100 acres, Mrs. Johnson, at the time of the deeds to Wilson, was a mere squatter without claim of title or paper title. She was a mere intruder, and as such her invocation of the champerty statute should be allowed only to the extent of her inclosure, and this the trial court's instruction allowed. Jones et al. v. Gatliff et al., 113 S.W. 436. In the case of Cardwell v. Sprigg, 1 B. Mon. 370, and in Mayes v. Kenton, 64 S.W. 728, 23 Ky. Law Rep. 1052, it was said that "the possession of land which will render champertous and void a conveyance of the same land, between persons not in possession, must be an actual adverse possession, manifested by some act or fact sufficient to indicate to others that the person claiming to have been possessed had in fact the possession. There must be some open demonstration of actual occupancy, or at least of intended use, whereby the persons bargaining for the land may have some clue for assertaining that it is in the adverse possession of another." The fugitive acts of timber cutting, and the like, named by Mrs. Johnson, have frequently been declared to be no such possession; nor was there in proof any open demonstration of actual occupancy sufficient to put any bargainer for the upper 100 acres upon notice of any adverse claim, save to the extent of the inclosure.

Certainly the trial court properly excluded the lower 100 acres from the instruction upon champerty; for, though Mrs. Johnson had a grant to it at the time of the deeds to Wilson, she was then living, not upon it, but in an inclosure at the far end of another tract to which she had not the semblance of claim or right. Her constructive possession could not reach out over land to which she had no claim of title so as to include lands below to which she had claim. And her desultory proven acts upon the lower boundary were no greater than those upon the upper which we have declared insufficient to support the statute.

Nor is there anything in the second complaint. As is conceded in the brief of appellant's counsel, the title granted to the mainland to one David Ross, prior to the grant by the commonwealth of island No. 3, ultimately descended to one Josiah Brummal. This same Josiah Brummal became also the owner of the middle part of island No. 3, now owned by Wilson. In a division of his lands, his mainland land fell to one portion of his heirs and the island land to another portion, ultimately descending to Wilson. Commissioners deeds...