Winchester v. Watson

• Citation: 183 S.W. 483,169 Ky. 213
• Parties: WINCHESTER ET AL. v. WATSON ET AL.
• Decision Date: 16 March 1916
• Court: Court of Appeals of Kentucky

183 S.W. 483

169 Ky. 213

WINCHESTER ET AL. v. WATSON ET AL.

Court of Appeals of Kentucky.

March 16, 1916

Appeal from Circuit Court, McCreary County.

Action by W. R. Winchester and others against G. S. Watson and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Stephens & Steely, of Williamsburg, L. G. Campbell, of Pine Knot, and H. C. Gillis, of Williamsburg, for appellants.

W. R Cress & Son, of Monticello, for appellees.

MILLER C.J.

In 1855, Joseph Winchester obtained a patent for a tract of between 70 and 100 acres of land in that part of Wayne county which is now a part of McCreary county. Many years ago, the exact time not being shown, Joseph Winchester removed to Tennessee, leaving the land above mentioned in the possession of his daughter Betsy Troxell. He married a second time, and died in Tennessee in 1881, intestate. The children by his first marriage were Betsy Troxell, Jane Miles, Rachel Smith and Zarilda Lewis; those by his second marriage, and who lived in Tennessee, were W. R., Henry W., Samuel, and Frank Winchester, the last-named son having since died in Texas leaving a widow and eight children surviving him. On January 4, 1901, Betsy Troxell sold and conveyed her undivided interest in the tract to Sherman Watson for a consideration of $20, and, on January 15, 1912, for the sum of $1 and other valuable consideration, Jane Miles, Rachel Smith, and Zarilda Lewis likewise conveyed their undivided interests to Sherman Watson. Mrs. Troxell's deed did not recite what her undivided interest was. The joint deed of the other three daughters recites that it conveyed an undivided three-fourths interest. At that time Watson was living upon the land, holding it in the way which will be hereinafter shown. Under his purchase from Mrs. Troxell, Mrs. Miles, Mrs. Smith, and Mrs. Lewis, Watson become the owner of an undivided one-half interest in the land. In 1911, Sherman Watson sold the timber upon the land to C. C. Cooper and Newton King, Jr., for $460. On July 20, 1913, W. R. Winchester, Henry W. Winchester, and Samuel Winchester, as joint owners, brought this action under section 490 of the Civil Code, against Sherman Watson, C. C. Cooper, Newton King, Jr., and the unknown heirs of Frank Winchester, deceased, seeking a sale of the tract, on the ground of its indivisibility, and a division of the proceeds among the several joint owners. The plaintiffs also asked that Sherman Watson be required to account for the timber he had sold to Cooper and King, alleging that it was worth $1,000, and, to more surely accomplish that purpose, Cooper and King were also made defendants. By the original answer, Sherman Watson denied the joint ownership of the plaintiffs and Frank Winchester's heirs, and claimed to be the owner of the entire tract by reason of his purchase from Mrs. Troxell, Mrs. Miles, Mrs. Smith, and Mrs. Lewis, alleging that the plaintiffs and Frank Winchester, who claimed to be children of Joseph Winchester by his second marriage, were bastards, and not the heirs of Joseph Winchester. It having been shown, however, beyond any question, that the children by the second marriage of Joseph Winchester were legitimate, the defendants withdrew their original answer, and filed in lieu thereof an amended answer, in which the defendant Sherman Watson expressly admitted the legitimacy of the plaintiffs and of Frank Winchester, and set up, for the first time, a claim to the greater part of the tract by adverse possession of more than 15 years through and under his brothers Nathan Watson and Wash Watson. The amended answer further admits that the land now claimed by Sherman Watson by adverse possession did not embrace the entire original Joseph Winchester patent, but alleged that two small tracts, which it described by metes and bounds, lie upon the outside of, and are not included in, Sherman Watson's boundary, and that the plaintiff's and Frank Winchester's heirs jointly own these two small tracts, with Sherman Watson. The acreage of those two small tracts is, however, not given. By their reply, the plaintiffs traversed all the material allegations of the answer, and interposed a plea of estoppel against the defendants, based upon the acts and conduct of Sherman Watson in taking the deeds of his vendors Mrs. Troxell, Mrs. Miles, Mrs. Smith and Mrs. Lewis, it being claimed that, by the provisions of those deeds, as well as by his original answer, Sherman Watson had admitted that he only owned the interests which had belonged to Betsy Troxell and her three sisters, and that, as he did not then claim to own any interest in any other way, or by any other title, he was now estopped from claiming to own the remaining one-half interest by adverse possession. By an amended petition, the plaintiffs charged Watson with wanton waste and damage to the extent of $1,000, for cutting and wasting the timber upon the land, and asked treble damages therefor under the statute. Over the plaintiffs' objection, the action was transferred to the ordinary docket for the purpose of trying the question of Sherman Watson's adverse possession of that portion of the tract so claimed by him. A jury trial resulted in a verdict for the defendants, and the plaintiffs appeal.

1. The motion to transfer the case to the ordinary docket for the purpose of trying the issue of adverse possession was properly sustained. Section 12 of the Code reads as follows:

"In an equitable action, properly commenced as such, either party may, by motion, have the case transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial; but either party may require every equitable issue to be disposed of before such transfer."

This action, under section 490, for the sale of the land in question on account of its indivisibility, was properly commenced as an equitable action. But when the issue involved in an equitable action is purely a legal one, and the equitable right depends upon the decision of the legal issue, as here, the case, on motion, must be transferred for a jury trial of the legal issue, and the trial court has no discretion in that matter. Hill v. Phillips, 87 Ky. 169, 7 S.W. 917; O'Connor v. Henderson Bridge Co., 95 Ky. 633, 27 S.W. 251, 983, 16 Ky. Law Rep. 244; Carder v. Weisenburgh, 95 Ky. 135, 23 S.W. 965, 15 Ky. Law Rep. 497; Morawick v. Mortineck, 128 Ky. 155, 107 S.W. 759, 32 Ky. Law Rep. 971. And, when a distinct legal issue is submitted to a jury in an action begun in equity and transferred for a settlement of the legal issue, the verdict of the jury is to be treated as in ordinary jury trials, and will not be disturbed unless palpably against the evidence. Hill v. Phillips, supra; Morawick v. Mortineck, supra.

2. It is next insisted that the judgment must be reversed for error of the court in selecting the jury. During the same term of court at which this case was tried, two other cases had been tried in which the ownership of parts of the same tract of land claimed by Sherman Watson was involved; and for that reason the court was of opinion that a new jury should try this case. Instead, however, of drawing a new panel from the drum as required by section 2247 of the Kentucky Statutes, the circuit court directed the sheriff to summon 20 bystanders, and to that ruling the plaintiffs objected and excepted. After the entire jury had been made up of bystanders, the plaintiffs challenged the panel for cause; but this objection was also overruled, and the plaintiffs again excepted. The cause was then tried by a jury composed entirely of bystanders. Under section 2247 of the Kentucky Statutes, it is the duty of the trial judge, in the case of a shortage of jurors, to draw from the drum or wheel case the number of names necessary to supply the places of those jurors who have been excused, or who have failed to attend, and the jurors so selected shall be summoned by the sheriff; and, if there should yet remain a shortage, the judge is given the power to direct the sheriff to summon not exceeding 3 bystanders, to supply the vacancies. In construing this statute in L. & N. R. R. Co. v. King, 161 Ky. 326, 170 S.W. 938, this court said:

"A jury selected in contravention of the statutory provision quoted is certainly a ground for new trial, if proper objection be saved, or unless the irregularity is waived. Weil v. Kreutzer, 134 Ky. 563 [121 S.W. 471, 24 L. R. A. (N. S.) 557]. * * * If there are not as many as 18 qualified jurors on the regular panel, the statute gives the court power to call 3 from the bystanders. If it be necessary to call more than 3, then resort must be had to the wheel. A list containing the names of more than 3 called from the bystanders to try a case is not a list of qualified jurors. Each party is entitled to have such a list before being compelled to exercise the right of challenge."

See, also, L. & N. R. R. Co. v. Owens, 164 Ky. 557, 175 S.W. 1039.

It is apparent, therefore, that in selecting the jury, in the way it did, the trial court made a reversible error, and that the judgment should be reversed for this reason if for no other. But, as the case may be tried again, it will be proper to consider some of the other alleged errors.

3. It is next insisted that, the circuit court erred in overruling the plaintiff's motion to instruct the jury to find for the plaintiffs at the close of all the testimony. This contention is based upon the claim that Sherman Watson had produced no proof that either he or his brothers, under whom he claimed, had ever held the land adversely or in a hostile manner to the claims of the plaintiffs. The proof shows that Sherman Watson bought the tract in question from his brother Nathan Watson by deed dated November 17, 1905, and...