Burks v. Cox

150 S.W. 662, 150 Ky. 511, 1912 Ky. LEXIS 933

Opinion

Opinion op the Court by

William Rogers Ola's, Commissioner —

Granting Rehearing, Withdrawing Former Opinion and Affirming.

Upon reconsideration of this case, we find that defendant, Burks, admits in his answer that plaintiff, Cox, was in possession of the premises in question at the time of the filing of the action. His prior possession, therefore, being prima facie evidence of title, plaintiff could maintain this action of trespass against the defendant, Burks, provided the latter entered without color of title, and ousted him of possession. Tucker, &c. v. Phillips, 2 Metc., 416; Campbell v. Roberts, 3 A. K. Marsh., 623; Scroggins, et al. v. Nave, 119 S. W., 158; Carson v. Turk, 146 Ky., 733; Roberts, et al. v. Menifee, et al., 149 Ky., 354.

We conclude that the weight of the evidence is to the effect that defendant’s deed does not cover the land in question. That being true, his entry was without color of title. It follows, therefore, that the judgment of the chancellor was proper.

For the reasons given, the rehearing is granted, the former opinion withdrawn, and the judgment affirmed.