Howell v. Roberts

82 S.W.2d 288, 259 Ky. 179, 1935 Ky. LEXIS 287

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 7, 1935
• Status: Published

Opinion

Opinion of the Court by

Judge Rees

Dismissing appeal.

Hester Roberts brought this action against Lee Howell and Fred Howell to quiet her title to a two-sixths undivided interest in a small tract of land in Floyd county. The land has little value.

■ In her petition she alleged that the land in question was owned by K. F. Slone during his lifetime, and that at his death it descended to his six children, that she had purchased the interest of two of the Slone children, and that she and the remaining four children of K. F. Slone were the owners and in the actual possession of the land. She further alleged that the defendants Fred Howell and Lee Howell were claiming to be the owners of the land by virtue of some kind of conveyance; that their claim was unfounded and was a slander on her title, and was casting a cloud thereon, and she prayed that her title be quieted and that the defendants be required to release to- her all claims that they or either of them had to the land.

In paragraph 2 of the answer and counterclaim filed by the defendants, Lee Howell alleged that he was the holder of the legal title to, and was in the actual possession of, the land; that the land in question was conveyed to him by Wiley Branham by deed dated March 17, 1917, and since the execution of the deed he had been in the actual possession of the land which was fenced, claiming to the full extent of the boundary. He alleged that plaintiffs deeds were champertous, and further ^that he had acquired title to the land by adverse possession. He prayed that his title be quieted and that ■the plaintiff be enjoined from setting up claim to the land or interfering with his possession.

Considerable proof was beard, and tbe chancellor adjudged that tbe plaintiff was tbe owner of a two-sixths undivided interest in tbe land. Fred Howell alone appeals.

He was named a defendant in tbe petition, but tbe pleadings and- tbe proof disclose that be is not an interested party. He is claiming no rights in tbe land. Both in bis pleadings and in bis own testimony be disclaimed ownership. All .of tbe evidence introduced by tbe defendants was for tbe purpose of showing ownership by Lee Howell, either by paper title or by adverse possession. Fred Howell is the son of Lee Howell. It appears from tbe record that during tbe pendency of the action Lee Howell was adjudged incompetent to manage bis est.ate, and his brother, David Howell, was appointed his committee.

Since tbe appeal has not been prosecuted by a party actually interested in the controversy, an opinion by this court on tbe merits of tbe case can serve no useful purpose. Wherefore tbe appeal is dismissed.