JURORS-See Evidence, 5, 6.
Jury Trial-One Cannot Avoid by Bringing Action in Equity- Ejectment.-A party cannot avoid a trial by jury by bringing his action in equity, unless he is authorized by law to bring it there. The evidence showing appellee to be in the actual possession of the land, claiming it as his own, the action should have been in ejectment. Newsome v. Hamilton......
1. Action for Damages for Injury to Poossession-Former Opinion. An action to quiet title cannot be maintained by parties who show no title, and such an action should be ais- missed following as it does the reversal of an action for dam- ages to possession where it was held that the one in posses- ion had the right to maintain the action for damages. In- stead of the present action, the former action should have been redocketed and proceedings had under the former opin- ion. Hall v. Deaton, et al., 32 R. 34.) Deaton, et al. v. Bur- ton, et al.
Title Adverse Holding-What is Necessary to Support Such Title. To support a title to land based upon adverse holding the claimant must show an open, adverse, notorious and con- tinuous holding for the last fifteen years. Sparks v. Jackson, et. al.
Land-Sale of by Court-New Trial-Grounds Therefor-Time in Which to be Made.-Section 344, Civil Code, provides that "if grounds for a new trial are discovered after the term at which the verdict or decision is rendered, the application may be made in a petition filed with the clerk not later than the second term after the discovery," and Section 340 provides that "accident or surprise, which ordinary prudence could not have guarded against, are grounds for a new trial." Held, where, in a sale of land made in 1904, a deed was made by mistake so as to include land not intended to be sold, and which had been held adversely by another for over thirty years, the court properly granted a new trial four years after the sale, and set the sale aside and directed another sale by proper calls and boundary of the land really sold. Winkler et al. v. Peters, et al........
Real Property-Action for Injury to-Person in Possession has Right to Recovery.-One in possession of real property has a right to recover for an injury to his possession, and is entitled to maintain such action, although he does not show title from the Commonwealth, nor fifteen years, open, no- torious, adverse possession. Brink, et al. v. Moeschl, Edwards Corrugating Co.
Title Thereto-Adverse Possession-Limitation Champer- ty. The evidence in this action shows that at the time
appellant bought the land in controversy it was in the act- ual adverse possession of another, and that it has been in the adverse and uninterrupted possession of appellee and those under whom he claims for more than fifty years, and therefore appellant's action is barred both by the statutes of limitation and champerty. Muncy v. Smith
6. Pleading-Denying Evidence of Title-Redundancy.—Where, in an action for title to land the answer denied plaintiff's title to the land, or to any part thereof, and averred title in himself, this was sufficient without a denial of the mere evidence of the alleged title, such evidence so pleaded being redundant or irrelevant matter not required by the rules of pleading to be traversed. Idem
Verbal Agreement to Buy-Statute of Frauds.-A verbal agreement for the purchase of land is in violation of the statute and not enforcible. (See Statute of Frauds and Perjuries, Kentucky Statutes, Section 470.) Estes v. Estes. 261 Quantity Boundary-Title- Actual Occupancy for Forty Years Under Deed.-This is a controversy between the parties hereto as to the boundary and quantity of land claimed and owned by the appellees. Held, Upon a con- sideration of the pleadings, proof and report of the sur- veyor the appellees have a good title to the land claimed by them, and that they have fortified their position by add- ing to their constructive possession an actual occupancy for more than forty years, and while the outside boundary of the land claimed to be covered by their deeds are not very well defined they were laying claim to it under thei: decd, and that the chancellor in adjudging their title good reached the right conclusion. Vance v. Gray et al. Passways-Belonging to Land Passes With it Unless Re- served. A right or appurtenance belonging to land, passes with the land unless expressly reserved, and the fact that one has another outlet can not militate against his right to use the one that was established and in use at the time he became the owner of the land. Conley, et al. v. Fair- child . . .
10. Compulsory Sale or Purchase-Not Allowable.-We know of no law to compel an adult to sell his land or to compe! one to purchase it against his will except in cases where the prop- erty cannot be divided without materially impairing its value. Middleton, et al. v. Fields
11. Widow Can Have Homestead or Dower-But Not Both.-A widow cannot be allotted both homestead and dower in her husband's estate. She may select either but not both Idem 352 12. Division of Land-How Effected.-In a division of land be- tween three heirs who jointly own three-thirteenths inter-
est therein the court should divide the three-thirteenihs to each of them so that it may adjoin their other land, if it can be done without material detriment to the interest of the others. Idem
13. Landowner-Divestment of Title by Possession-Proof of In tention to Claim Adversely.-It is well settled that before the owner of land, holding under title from the Commonwealth, can be divested of his title by the mere possession of another, such possession must be shown by positive proof to have been open, notorious, exclusive, hostile, continuous and adverse for a period of fifteen years before the institution of the suit, and of such a character as to give a cause of action for every mo- ent of time, and, when such possession is claimed under dif ferent tenants the intention with which each tenant entered, and that the tenancy was unbroken, must likewise be proved. Upchurch, et al. v. Sutton Bros., et al. ....
14. Entry Under Void Patent-Acknowledgment of Superior Title -It is also well settled that one who under a void patent, and, upon demand for possession by the true owner acknowl- edges the superior title of such owner, and agrees to hold pos- session under him, is estopped to plead adverse possession to the suit of the owner and those claiming under him, unless he had given notice to the owner fifteen years before the guit was filed, that he had changed his amicable into a hostile pos- session, and when the ancestor is estopped under these circum- stances his heirs and representatives are likewise estopped. Idem ...
15. Where land is held adversely, the fact that the claimant is insane does not stop the running of the statute of limitation, unless the insanity existed at the time his cause of action ac- crued, and if it existed when his cause of action accrued, and continued for fifteen years, the disability was removed by his death, and the action was barred in three years thereafter, al- though his heirs were under disability at the time. Hale's Heirs, v. Ritchie ...
16. Thirty years adverse possession bars an action regardless of disability. Idem ..
.... 424 17. Landowner-Permissive Use by Brother-Adverse Posses- sion-Sale-Champerty.-Where the owner of a tract of land permitted his brother to live on it, cultivate and rent out por- tions of it to whom he pleased and after his brother's death his widow was given permission to live on it, her occupancy was not adverse to, but was under the owner and the sale of the land by the owner was not champertous. Perry v. Veal. 441 18. Inducing Another to Buy-Ignorance of Rights-Relative
Rights.-Where one in ignorance of his rights induced a third person to buy land, the latter also being ignorant
of the true state of facts and relying on the statements and inducements made by the former, will be protected in a subsequent dispute between the two as to whether the land was, in fact, the property of the one inducing the pur- chase at the time. Hall, et al. v. Pratt, et al...... ... 561 19. Call Patents-Absence of Corners-Discrepancy.-If nothing else appears in a "call" patent-that is, one whose cor- ners are all stakes but one, or where the lines were not run out and marked at the time-except a discrepancy be- tween the figure made by platting the patent calls and the surveyor's plat, it is not proof of a mistake in the patent. It is apt to be a mistake in the surveyor's plat. Idem ...... 561 20. Surveyor's Plat-Corners and Distances.-A surveyor's plat is of equal dignity with his other certified work, but not superior. The correct running of a patent, where there is but one visible corner, is to follow the calls, courses and distances, and closing the last line so as to make a com- plete survey. Idem
21. Quieting Title-Possession of Plaintiff.-In an action to quiet title to land where the evidence shows that the plaintiff was not in the actual possession of the land a judgment dismissing the petition was proper. Idem
22. Two Innocent Persons-Misrepresentation maxim is where one of two innocent persons must suffer, he alone should suffer who brought about the condition by his misrepresentations. Idem . .
23. Lands-Action to Quiet Title.-In an action to quiet title, the question was, whether or not two adjoining landown. ers established a certain conditional line. Held, upon an examination of the record that the evidence sustains the finding of the chancellor that the conditional lines had been established. Childers v. Belcher .. C05 24. Inheritance-Investment of Proceeds-Reasonable Time.- The head of a family who inherits a share in an indivisible tract of land has a reasonable time to procure a sale of the land, and the investment of the proceeds of his share in a homestead, and a year or eighteen months is not an un- reasonable time for this purpose where he is a convict in the penitentiary. Robinson v. Robinson. .... 589 25. Sale of-Written Contract-Signed by Vendor-Validity. -A written contract forthe sale of land is enforcible against both parties to it if signed by the vendor. The ven- dor holding the title is the party to be charged by such contract within the meaning of the statute of frauds, and an action against the vendee for the purchase money may be maintained, although he did not sign the written con- tract. Evans v. Stratton
26. Assignment of Titie Bond-Validity-Acceptance.-The law permits the assignment of a title bond by the vendee and does not require a written acceptance of the assignment by the assignee. Both the vendor and assignor are bound to perform the contract and each is liable to the assignee for its breach. Idem 27. Ejectment-Possession Under Color of Title-Boundary.- Where one is in actual possession, under color of title, of a part of the land within his boundary, the law by construc- tion carries his possession to the full extent of his boun- dary. Slaven, et al v. Dority 28. Same
Title by Adverse Possession.-Where one claims title by adverse possession only, he acquires no title to any land except that which is in his actual possession. Idem... 640 29. Same-Constructive Possession- Squatter's Title. There can be no constructive possession without color of title. The squatter's sovereignty is confined to his dominion. Idem ... 640 30. Real Estate-Verbal Agreements to Buy at Commissioner's Sale. This court has often decided that verbal agreements to buy real estate at commissioner's sale for the owner are enforcible. But such verbal agreements must be well established by proof before being enforced. Warden v. O'Brien.
31. Evidence-Tender.-The evidence examined and held suf- ficient to show a verbal agreement for the purchase of the property, but under the agreement the money which appellee had paid not being due at the time there was no necessity for a tender. Idem.
32. Location of Boundary Line-Identification
This is an action brought in equity to enjoin a trespass, and turns on the true location of the dividing line between appel. lant and appellee. Evidence was heard as to how the respective grantees construed the description of the divid- ing line. Held, that while the descriptions are awkwardly expressed they are clear enough not to require the aid of parol evidence to explain further than to identify the points called for as corners. The judgment should have been for the defendant. Reversed, with instructions to enter a judgment in conformity herewith. York, et al. v. Hogg.... 704 33. Contract of Sale-Absence of Written Memorial-Parol Evi- dence-Validity. The consideration of a contract for the sale of land, though not expressed in the written memorial sale, may be shown by parol evidence. Shade Stacy, et al. v. Garrett Feltner, et al. 34. Same-Title in Children-Sale by Father-Validity.-Where
« PreviousContinue » |