Tabor v. Tabor , 213 Ky. 309 ( 1926 )

Opinion of the Court by

Commissioner Sandidge

Affirming.

Appellee, N. D. Tabor, instituted this equitable action against IT. S. (!. Tabor to quiet his title to a very small triangular tract of land on Main street in Olive Hill, Kentucky, and to enjoin appellant from trespassing upon it. By answer appellant claimed to own tbe same tract of land. Tbe trial of tbe case resulted in a judgment for plaintiff, now appellee, and appellant has appealed.

'The pleadings admit and appellee filed herein bis title papers showing that tbe tract of land in controversy as a part of a larger tract formerly was owned by appellant, U. S. Gr. Tabor, but was conveyed by him to appellee, N. D. Tabor, on April 21, 1895. The small tract of land in controversy herein is referred to in tbe record as triangle No. 1. Another small tract of land known in tbe record as triangle No. 2 plays a considerable part. Appellant by bis answer pleaded that after be bad conveyed tbe tract to appellee in 1895, which included tbe tract in controversy herein, be or bis wife repurchased a portion of it from appellee in 1902. Tbe line to which be claims then to have repurchased so divided tbe land as to leave triangle No. 1 on appellee’s side of it and triangle No 2 on appellant’s side. Appellee pleaded further that several years ago a street which ran through tbe property was changed and relocated and that as changed triangle No. 1 belonging to appellee was left on appellant’s side of tbe street, and triangle No. 2 belonging to appellant was left on appellee’s side of tbe street; and that thereafter be and appellee exchanged those tracts of land tbe one for tbe other, be thereby becoming tbe owner of triangle No. 1, tbe tract claimed and described in plaintiff’s petition. Appellee by reply traversed tbe answer. Each by Ms testimony-sustained Ms pleadings. Appellant depended for Ms owner ship of tbe tract of land wMch he claims to bave traded to appellee in exchange for tbe tract claimed by appellee herein upon establishing by proof that after bis conveyance of tbe tract of land to appellee in 1895, be subsequently repurchased the tract of land be claims to bave traded to appellee. Both tbe small tracts known as triangle No. 1 and triangle No. 2 were included in tbe deed from appellee to appellant made in 1895. Appellant did not file in evidence any deed showing that appellant reconveyed any of tbe land to him. He wholly failed to establish lay proof that appellee ever re-conveyed to him or bis wife any portion of the-tract conveyed by them to him in 1895. So far as tbe evidence found in this, record is concerned triangle No. 2, which appellant contends be traded to appellee for triangle No. 1, has been tbe property of appellee since it was conveyed to him by appellant in 1895. Appellant testified that be and appellee exchanged triangle No. 2 for triangle No. 1 and executed a joint deed to effect the exchange. A witness for him testified that be wrote tbe deed and took tbe acknowledgment of both appellant and appellee. Tbe deed was not produced and was never recorded. Appellee demed that be signed or acknowledged tbe deed or that appellant ever bad title to triangle No. 2 after be (appellee) acquired it by tbe deed of 1895. Tbe decisive fact in tbe record, it seems to this court, is tbe fact that appellant fMled to establish by filing bis deed herein tbe fact that be repurchased from appellee a part of tbe tract conveyed to him in 1895, including tbe small tract referred to in tbe record as triangle No. 2, which be claims to bave exchanged with appellee for tbe tract described in tbe petition. Upon tbe whole case it can not be said with reasonable certainty that tbe chancellor has erred, and tbe case clearly falls within tbe rule often announced by this court that if upon tbe whole case tbe mind be left in such doubt that is can not be said with reasonable certainty that tbe chancellor has erred, tbe judgment will be affirmed.

Judgment affirmed.