Charles v. McCoy

295 S.W. 407, 220 Ky. 439, 1927 Ky. LEXIS 540

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 7, 1927
• Status: Published

Opinion

Opinion op the Court by

Commissioner Hobson—

Affirming.

John McCoy held a patent from the commonwealth of Kentucky, bearing date January 20, 1837, for 75 acres of land on Burning Fork creek in Pike county. On October ’6, 1922, John C. Charles obtained a patent from the commonwealth of Kentucky for about 4 acres of land, ■which, he claimed was vacant, adjoining a line of the Mc;Coy 75-acre survey. John McCoy and wife on November 7,1838, conveyed the land embraced by the 75-acre patent to Randolph McCoy. Randolph McCoy and wife, Elizabeth, conveyed the land on August 3, 1874, to John R. McCoy. John R. McCoy and wife conveyed it on October 4,1918, to L. K. McCoy. L. K. McCoy brought this action on October 28, 1924, against Charles, alleging his ownership of the land, and that Charles was without right in intruding upon him.. 'Charles answered, alleging that he was the owner of the 4 acres in controversy. On the trial of the case, the jury returned a verdict for the plaintiff. Judgment having been entered upon the verdict, and his motion for a new trial overruled the defendant appeals.

It is insisted for the appellant that, as McCoy was the plaintiff in the action, the burden was on him to make out his case, by either showing a title from the commonwealth or an adverse possession of 15 years, and that the proof offered by the plaintiff was insufficient. It is insisted that McCoy did not show title from the commonwealth because he did not read on the trial the patent to John McCoy. But we find in the record this stipulation following the survey on which the patent was based:

“It is agreed by and between the parties hereto that the introduction of the patent which issued from the commonwealth of Kentucky in virtue of the survey just read in evidence to John McCoy for 75 acres of land is of date January, 18-37, and the reading and introduction of same is waived.”

The defendant by this stipulation waived the reading of the patent, and cannot insist in this court that the patent was not read in evidence. The existence of the patent was assumed by both the parties on the trial, for not only the deeds under which the plaintiffs claimed rested upon it, but the survey under which the defendant claimed called to run -with the line of this patent.

It is also insisted' that the plaintiff failed to show title from the commonwealth because the defendant introduced in evidence a deed made by Randolph McCoy and his wife, Ann, to Anderson Blair, bearing date May 11, 1853, or 21 years before the deed to John McCoy, and a witness was introduced showing that this deed included the land in controversy. But it was shown that there were two men named Randolph McCoy in Pike county at that time. The defendant does not claim under Anderson Blair; Anderson Blair and those claiming under him have never claimed the land in controversy. It has always been held and claimed since 1874 by John ft. McCoy and those 'claiming under him. The court therefore properly submitted the question to the jury, and the verdict of the jury is clearly supported by the evidence as a whole.

The proof is clear that John R. McCoy and those holding under him entered upon the land; built a home on it and claimed to the extent of their deed boundaries. The 4 acres in controversy is timber land and on a hillside. But one who enters under a deed, claiming to the boundaries of his deed, is in possession to the extent of his-deed boundary if the boundary is sufficiently described that it may be run by a .surveyor. Hopson v. Cunningham, 161 Ky. 160, 170 S. W. 522; Tennis Coal Co. v. Sackett, 172 Ky. 729, 190 S. W. 130, Ann. Cas. 1917E, 629; Heinrichs v. Polking, 185 Ky. 433, 215 S. W. 179; New York-Kentucky Oil & Gas Co. v. Miller, 187 Ky. 742, 220 S. W. 535; Martin v. Dupee, 196 Ky. 652, 245 S. W. 294; Curry v. Cox, 208 Ky. 653, 271 S. W. 700. There, was abundant evidence to submit this question to the jury.

On the whole case and on all the evidence the verdict of the jury is in accord with the right of the matter and cannot be disturbed. The judgment was rendered at the April term, 1926, and time was given until the last day of the next term to file bill of exceptions; the next term began on the second Monday in June, which was June 14th. It continued for 18 days. The last day of the term was July 3d.

The bill of exceptions bears the following endorsement: “Tendered and offered to be filed July 3, 1926. D. C. Moore, Clerk.” The bill was therefore tendered in time.

Judgment affirmed.