Potter v. Quillen

218 S.W.2d 60, 309 Ky. 500, 1949 Ky. LEXIS 752

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 25, 1949
• Status: Published

Opinion

Opinion of the Court by

Clay, Commissioner

Affirming.

This action was brought by appellee to quiet title to a part of a tract of land allegedly owned by him and to enjoin appellant from trespassing thereon. Appellant, by answer and amended answer, claimed title to this land both by deed and adverse possession. The Chancellor entered judgment for appellee.

Appellant contends her general demurrer to plaintiff’s petition should have been sustained because appellee did not allege he had possession of the property, although he did allege “he was entitled to possession.” Appellant’s demurrer was filed after her answer but before the amended answer and it was never passed on by tbe Court. Tbe parties took proof and tbe case was. submitted for judgment. Since appellant did not obtain a ruling on her demurrer but instead proceeded to trial, sbe will be deemed to have waived it. Danville, Lancaster & Nicholasville Turnpike Road Company v. Stewart, 2 Metc. 119, 59 Ky. 119; Griffin v. Williams, 305 Ky. 18, 202 S.W.2d 744. If appellee’s petition was defective in this respect, it was cured by appellant’s pleadings and tbe proof. Davis et al. v. Daniel et al., 295 Ky. 717, 175 S.W.2d 501.

Appellant’s other contention is that tbe judgment is contrary to tbe law and evidence. Tbe tract in dispute comprises 13 acres and tbe principal controversy involves tbe correct location of a “Lind tree,” which is called for in tbe deeds of both parties, Tbe true line separating tbe tracts is tbe northern boundary of appellant’s property and tbe southern boundary of appellee’s. No “Lind tree ’ ’ is now in existence which could constitute tbe correct corner, but each party contends for a different location where this monument was in tbe past.

Appellant acquired title to ber land in 1926, but sbe bad lived on it since 1907, tbe title having been in ber husband from that date until 1923, when as a result of a court order it was conveyed to appellant’s grantor. Appellee inherited bis land from bis grandfather in 1923, at which time be was an infant. He reached bis majority in 1942.

There is substantial evidence tbe description in appellant’s deed does not include tbe disputed land. Her deed calls for 8 1/3 acres, whereas the parcel in controversy contains 13 acres. A number of witnesses, including tbe county surveyor, testified to tbe correctness of tbe location of tbe corner as claimed by appellee. Considering tbe boundary calls of tbe adjoining property, their explanation is reasonable. If tbe location as contended for by appellant is taken as correct, ber dwelling bouse would not be included by tbe boundaries called for in ber deed. These factors indicate ber claimed location of tbe “Lind tree” is incorrect.

There is a direct conflict in tbe evidence as to tbe duration of appellant’s adverse possession. If tbe possession upon which appellant’s claim is based bad begun prior to the vesting of title in appellee, his infancy would not interrupt the running of the statute. Ross et al. v. Richardson, 173 Ky. 255, 190 S.W. 1087. Here the Chancellor found, upon substantial proof, that appellant had not been in adverse possession of the disputed tract prior to 1926. Appellee’s title had vested prior to that date and ownership by adverse posession begun during infancy could not be acquired during his minority. Elkhorn Coal Corporation v. Tackett et al., 261 Ky. 795, 88 S.W.2d 943.

Where the evidence is conflicting, as it is in this case, and there is substantial evidence to support the finding of the Chancellor, it will not be disturbed.

The judgment is affirmed.