Chiles v. Dedman

10 Ky. 463

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1821
• Status: Published

Opinion

The Chief Justice

delivered the opinion.

This was an action of ejectment brought by Chiles against Dedman, to recover the possession of a lot in the town of Mountsterliog. Chiles asserted his title to the lot under a deed from tlie trustees of the town to himself, bearing date the 1 5<h June, 1816; and Dedman relied upon an adverse possession in himself and those under whom he claimed for twenty years béíoffe. the commencement of the action. Tbe jury found a verdict ¡j^r Dedman, and Chiles rt»oved the cowri foc a inew drtal.jbecauseihe. Verdkt.yvas ‘⅜®®*®®?*'*® evidence,-.ewd apontUieigíonaA of, surprise; bat the court overruled his motion, to which be excepted;, and -the. coarb ftaving$end¿red:aí -¡judgment ,on the, verdict: for ©i dman,: GiiifcsflTns appeBied lo.tliis eo»r¡. :

A pltfV claiming a lot bv deed .teesofatown-'*^ is nared ' twenty unhs^df'oc icupant en to the ?nSte?S ^ Evidence pltif be produced ll^deferd aarondts' to shew it, the p!tf cann ege gur-prise. Bibb for appellant, for appellee.

■ ••'We do'Ctof think that the ciretiajstanees pf this cagey,vviji justify the interposition of'jhisaeoiirt in mppositipn to the ilec'iaiotiof :tbe circui t .court, to-Set-aside the verdict.-of the •jury, on the score»!) itsfeii)g emilr.arv:;lo.evidence, .

- An-actdal pédís.pessmwibyiO.edittan, ‘and tbos&upder whom- bfeéluimetl for twenty years,bafore.tb.e.cQrrtrofiRP.e-merit of 'this suit, was clearly, iesiablislied ¡Rvitlie cyidppce cause,, and :tire proof, do less.-satiafoctorily,isbpsTS, theioecupautslinvarisvidy claimed .and exercised an ab-aod exclusive ■ dominion: over the. dot. There, &an, lberefore,i be rwdoubt that-tbere was,.iu,.fací,, sa adverse twenty years; and,¡ unless.Dgdroan was estop-cd to assert,-and the jury to find, the fact,, by 4he rejipioft “‘Wbich subsisted between: theiooeupaots and yhe trustees, :the verdict of the jury was correct. .©.a that branch of the case, the proof is not s» satisfactory as it might, be. There is, however, no: legitimate evidence of any contract with the trustees, by which the .possession of the;.lot was, obtained ; and tlie presumption:is strong! from the circumstances of the case, that the occupaftts of the lot held the possession, looking not to .tire trustees for the completion of - the title,'bat to one of the original proprietorsuf the town, who, notwithstanding its establishment, claimed and successfully asserted the legal title to the lot, in question, in an action of ejectment brought bv him against Dedraan.

With rtspeci to the around of surprise, títere is less f°r disturbing lite verdict of lire jury. Chiles, in áffidavit,: states some reasons for.believing.that,Dedtuan would have produced on the trial, a copy of a record of a 8®** depending in another court between Deilman and.himself, by which he alleges, he could have .unequivocally proved, that t he possession-was not adverse;, and be swears he was surprised in its-non production. Suco a sur-js Certainly, no legitimate ground for a new trial. Knowing the • materiality: of the evidence for himself; tie ought not to have looked to his adversary to produce it; and to have done so, can only be attributed to his negligence. The judgment roust be affirmed with cost.