Wilson v. Chappell

• Decision Date: 17 June 1932
• Citation: 244 Ky. 521,51 S.W.2d 669
• Parties: WILSON et al. v. CHAPPELL et al.
• Court: Kentucky Court of Appeals

51 S.W.2d 669

244 Ky. 521

WILSON et al. v. CHAPPELL et al.

Court of Appeals of Kentucky

June 17, 1932

Appeal from Circuit Court, Leslie County.

Suit by F. A. Wilson and others against Sarah Jane Chappell and others, in which defendants filed counterclaim. From a judgment dismissing the petition, plaintiffs appeal.

Reversed with directions, and defendants' counterclaim dismissed.

Cleon K. Calvert and John G. Bruce, both of Pineville, and John H Asher, of Hyden, for appellant.

M. C Begley, of Hyden, and W. H. Lewis, of Whitesburg, for appellee.

DRURY C.

Appellants, F. A. Wilson and A. J. Asher, plaintiffs, in the trial court and hereinafter so called, sought to enjoin the appellees, defendants in the trial court and hereinafter so called, from cutting timber and otherwise trespassing on 515 acres of land particularly described. Defendants by answer and counterclaim put the title of plaintiffs in issue and asserted title in the defendants to a portion of this land. The court found for the defendants, the petition of the plaintiffs was dismissed, and they have appealed.

This case was here once before, see 224 Ky. 130, 5 S.W.2d 882, but upon a different question from the ones now presented.

Henry M. Chappell, the appellee in the former appeal, died after that reversal, and the action was revived against Sarah Jane Chappell, his widow, and his five children, the present appellees. Plaintiffs described two tracts in their petition, but there was no issue about the first one. The second or 515-acre tract is the one with which this opinion deals. It is made up of parts of patents 44140, 44141, 44142, 44143, 44144, 44145, and 44146, issued to W. H. De Groot et al. in 1870. In a proceeding begun by the commonwealth against George H. Reese et al., these and a number of other De Groot patents were on October 9, 1909, forfeited for nonpayment of taxes.

In May, 1910, these patents were ordered sold, at a sale had July 18, 1910. Plaintiffs became the purchasers of these De Groot patents, and on October 6, 1910, this sale was confirmed and deed made. The land in controversy here is tract 20 in that deed. The defenses against the claim of the plaintiffs are set forth in an answer and counterclaim containing five paragraphs. The first is a traverse. The second, a plea of ownership of a described boundary through fifteen years' adverse possession before suit. The third, a plea of estoppel based on the theory that plaintiffs could not purchase the lands in dispute at the sale in the forfeiture action because of the provisions of section 4076f, Ky. Stats. The fourth paragraph is a plea of the five-year statute provided in section 4076g, Ky. Stats., and, the fifth, a plea of champerty aimed at the master commissioner's deed to plaintiffs.

Defendants claim the land in contest under a deed from Burgoyne Chappell and wife to Henry M. Chappell executed July 25, 1890. They exhibit no other claim. The boundary in this deed embraces not less than 2,500 acres, and is from fifteen to twenty miles from the beginning back to the beginning. Within it are the lands in dispute, and certain patents to Chappell, Nance, Coldiron, and Stepp which are senior to the De Groot grants and which senior patents Henry M. Chappell owned by good title.

Henry M. Chappell, the original defendant, husband and father of the present defendants, lived within the boundary of this Burgoyne Chappell deed for more than forty years on Greasy fork at the mouth of Elk creek. He lived within the George Chappell grant, which is senior to the De Groots and which Chappell grant he owned. His residence, outbuildings, and improvements were all inside those other senior grants, and outside the lands in dispute. No attempt is made to show Burgoyne Chappell had any sort of title to the land in dispute, nor do the defendants attempt to show any sort of title to it except that it lies within the boundary of this Burgoyne Chappell deed, and that Henry M. Chappell under whom they claim lived for forty years within and claimed to that boundary which they allege and prove was plainly marked and well known. Therefore say the defendants: "We have been in constructive possession of the land in dispute for 40 years." Their argument is that possession of a part is construed as possession of the whole.

"Constructive possession is that which exists in contemplation of law without actual personal occupation." Newcome v. Crews, 98 Ky. 339, 32 S.W. 947, 17 Ky. Law Rep. 899. See 12 C.J. 1304.

Wilson et al. claim that since 1870 they, through De Groot et al., as the actual owners of this land under chain of title from the commonwealth, have been in constructive possession of this land, as constructive possession always follows in the wake of the title.

There cannot be two constructive possessions. Where there are two conflicting claims to land as here, the law cannot contemplate that both claimants are in possession of it. Actually neither has any possession except in contemplation of the law, and the law contemplating that citizens act rightly deems that claimant to be in possession who has the best right to possession. In Jones v. McCauley's Heirs, 63 Ky. (2 Duv.) 14, this court said: "There can be no constructive possession of the same land by conflicting claimants. In the absence of any actual possession, if there be any constructive possession, it must necessarily be in the holder of the best title, unless he had renounced it. And his constructive possession can never be ousted by any constructive possession claimed under the inferior title; nothing short of renunciation or actual disseisin can evict him." That was cited and followed in Whitley County Land Co. v. Powers' Heirs, 146 Ky. 801, 144 S.W. 2, in which opinion Judge Carroll reviews the various opinions of this court on the question. The holding in that case was that, in case of conflict of titles, both depending on constructive possession, the older title prevails. To that ruling this court has since adhered, the recent cases being: Maynard v. Lowe, 231 Ky. 258, 21 S.W.2d 285; Swift Coal & Timber Co. v. Ison, 231 Ky. 404, 21 S.W.2d 659; Pendergrass v. Swiss Oil Corp., 217 Ky. 789, 290 S.W. 713; Pursifull v. Green, 214 Ky. 516, 283 S.W. 1055; Louisville Cooperage Co. v. Collins, 212 Ky. 819, 280 S.W. 137; Ramsey v. Hughes, 212 Ky. 715, 280 S.W. 99. The claim of the defendants based on constructive possession cannot be sustained.

The defendants also claimed they were in actual possession and they showed they had cleared and tilled some of this land at the head of Peter Gap branch, but the proof shows this...