Williams v. Deskins , 1922 Ky. LEXIS 234 ( 1922 )

Opinion op the Court by

Judge Thomas

Affirming.

This action in ejectment brought by appellee and plaintiff below, Sarah Deskins, against appellants and defendants below, who are the heirs of Achilles Williams, involves the title to a small triangular piece of land in Pike county, the exact acreage not shown. A denial of plaintiff’s title and a plea of adverse possession were contained in the answer.

Appropriate pleadings made the issues and upon trial there was a verdict and judgment in favor of plaintiff which defendants seek to reverse on this appeal prosecuted by them. The only complaints against the judgment made here in brief of counsel (though others are made in the motion for a'new trial) are: (1) that the court erred in overruling defendants’ motion for a peremptory instruction in their favor, and if mistaken in this, then (2) that the verdict is flagrantly against the evidence. Since the disposition of each of those complaints calls for a brief review of the evidence, as contained in the record, they will be considered and determined together.

Many years ago, William Williams, the father of Achilles Williams, owned a large body of land in Pike county and before his death, which occurred before that of his wife, Mary Williams, he made a division of the larger portion of his land among his children and put each in possession of the portion allotted to them respectively. For some reason he did not execute a deed to his son, Achilles, and after his death the other heirs executed a deed to him for the tract allotted to him and of which he took possession. There was a tract between the one allotted to Achilles and the one to Mrs. McGinnins, a daughter of William Williams, which the latter retained, and after his death it was set apart to his widow, Mary Williams, as her dower, but, whether that was done in a judicial proceeding does not appear. The land in controversy is a part of that dower interest. After the death of Mary Williams, in a proceeding instituted in the Pike circuit court for that purpose, the portion of William Williams ’ land which was allotted to his widow as dower was sold for the purpose of division among the heirs. At that sale A. J. Hatcher, B. M. Ferrell and Jane Deskins became the purchasers, to whom the commissioner executed a deed, and plaintiff is the remote Vendee of those purchasers. The dower interest which was sold in that suit, as stated above, joined on one side the portion of land allotted to Achilles Williams.. The disputed land is in.the shape of the letter "V” with the open top turned nearly to the northwest. It is the conention of plaintiff that the line of defendants’ land extends no further east than one enclosing the top of that letter in the described position; while defendants claim that their line runs with the stems of that letter in the same position so as to include the land in controversy.

The beginning of the description of the lands allotted to Achilles Williams in the deed heretofore referred to, which was executed by the heirs of William Williams to him on May 25,1866, says: ‘ ‘ Commencing on a black oak on the point of the ridge on the north side of Johns creek running to a black walnut standing on the bank of said creek,” which, according to all the proof, disputed by none, forms and describes the line as contended for by plaintiff. Not only does such fact appear from the testimony of all the witnesses, but it also appears from the only map filed with the record on this appeal. The judgment ordering the sale of the dower interest of Mary Williams directed the commissioner to sell "All that part of the land on Johns creek in Pike county, Kentucky, and between the lines of the lot of land of Achilles Williams and Mary M. McGinnins belonging to the estate of Wm. Williams, deceased.” In an amended petition in the suit to procure that sale it was first described by metes and bounds and then followed by substantially the same recitation as is contained in the judgment. Before the judgment of sale in that case, a survey of the land allotted Achilles Williams was made pursuant to an order of court, and the report of the surveyor describes the disputed line precisely as contained in his deed, supra, from the other heirs of William Williams, executed in 1866.

The deed of the commissioner to Hatcher, et al., has two calls in its description reading: “N 17 E. 60 P. to a walnut; N. 78 E. 11 P. to a black oak.” The last line closes the top of the letter “V” in the illustration, and the deed then recites: “Also all the lands lying between the tract of land laid off to James H. McGinnins ’ wife and the farm of William Williams, Sr., being all the land owned by William Williams, Sr., at his death.” The answer filed by Achilles Williams in the suit to sell the dower interest expressly admitted that the statements in the petition therein were true, one of which was a description of the dower interest conforming to the line contained in the deed executed to him by the heirs of William Williams in 1866.

The only way by which this apparently conclusive record testimony, substantiating plaintiff’s contention, is attempted to be refuted is by the oral testimony of two of the heirs of Achilles Williams and one or two other witnesses stating that when the dower interest to Mary Williams was first allotted the line ran from the oak above mentioned in a southeast direction to a pile of rock at the point of the “V” in the above illustration, thence slightly north of west to the black walnut, thus including the disputed land, and that, as stated in brief of counsel for appellants, “The calls in the dower deed, or in deed (judgment) for sale of the dower tract, omitted the two calls, the one from walnut to pile of rocks and from pile of rocks to oak,” which is wholly insufficient to overcome the above recited record evidence. If, however, it were otherwise, the judgment in the suit to sell the dower to which Achilles Williams was a party and in which he filed his answer, as we have referred to, would estop him and his heirs from making the present contention.

But, it is insisted that defendants and those through whom they claim have held such adverse possession of the land in controversy as to ripen in them the title thereto, and for that reason the judgment is erroneous. But this contention is about as far from being sustained as the first one considered. It is true it appears that somewhere about ten or eleven years prior to the filing of this suit Achilles Williams made a slight clearing on the land in controversy and, perhaps, occasionally trespassed upon it by cutting timber; but the claimed possession, if otherwise sufficient, was not of such duration as to perfect title in the possessor; nor did the occasional acts of trespass constitute the requisite possession for that purpose, as has been frequently held by this court.

We, therefore, conclude that the grounds urged for a reversal are wholly without merit and the judgment is accordingly affirmed.