plaintiff, wherein he was asked if the description in that deed included the little tract of land in controversy, and he answered that it did. It is apparent that from this question and answer, alone, it is impossible to say whether or not the land in controversy in this action is contained in one of the 40 odd tracts excepted from that conveyance, or whether it is not embraced within any of the

braced all the lands within its outside boundary. It is a well-established rule that where a deed or patent is relied upon for title, or to show the extent of possession, and there are lands excepted from the deed and not con

This deed was made on behalf of some of the parties who were parties to the agreement made in the year 1849, and of other parties not known to that agreement, while it does not appear that all of the parties to that agreement, who were to have the benefits of the lands within the four mile circle of Estill Furnace, nor their heirs, were parties to that action, and the deed conveys "all the right, title and interest of Samuel Jack-exceptions. The description in the deed emson & Company and Josiah A. Jackson in and to all of the lands they had any interest in" within that circle, but the deed expressly reserves the rights of all purchasers, whatever they may be, to such purchasers, and only conveys the property subject to the exception | veyed by it, the burden is upon the one who in behalf of prior purchasers of the lands. relies upon such deed or patent to show, by As to how many of the grantors in this deed, proof, that the land he is seeking to recover on whose behalf it was made, were the own- is not embraced by one of the exceptions, ers of any of the lands within the circle, is otherwise he fails to show title under his not made to appear, and neither is it shown deed, and would necessarily fail to show poswho were purchasers of the lands within session under such a deed, when the deed is that circle theretofore, and what lands it used for the purpose of showing the extent was that the conveyance did not include. The of the possession. Fuller v. Keesee, 104 S. next paper pertaining to title offered in the W. 700, 31 Ky. Law Rep. 1099; Bowling v. evidence was a deed from the Kentucky Riv- Breathitt Coal, Iron & Lumber Co., 134 Ky. er Iron Manufacturing Company to Thomas 249, 120 S. W. 317; Caddell v. Eagle Coal Co., Dewitt Cuyler, dated February 14, 1898, and 144 Ky. 396, 138 S. W. 304; Steele v. Bryant, purports to convey the Furnace tract of land, 132 Ky. 569, 116 S. W. 755; Miller v. Breathwhich the deed recites contains 3,200 acres, itt Coal, Land & Lumber Co., 152 Ky. 390, which is probably a mistake and was intend- 153 S. W. 468; Tennis Coal Co. v. Sackett, ed for 32,000 acres; the Forge tract contain- 172 Ky. 729, 190 S. W. 130. ing 18,000 acres, the Cobb Mountain tract containing 175 acres, and also another tract of land in Estill county. It, however, appears from this deed that these were the tracts of land which were conveyed to the Kentucky River Iron Manufacturing Company by one Edward K. Goodnow on January 28, 1881. There is also parol evidence that, some time previous to the conveyance from the Kentucky River Iron Manufacturing Company to Cuyler, the holdings of this company, or some part of them, had been claimed or owned by the Kentucky Union Land Company; but how long the land company was the owner, or whether it was the owner of all or only a part of the lands within the four mile circle, does not appear. Neither does it appear for what length of time the Kentucky River Iron Manufacturing Company had held title to the lands embraced within the deed to it from Goodnow, if such deed it had, at the time it conveyed to Cuyler.

On April 7, 1902, Cuyler executed a deed of conveyance to the appellant, Russell, by which he conveyed to him the lands embraced within the Furnace tract, but excepted from the conveyance 40 separate tracts of land, containing from one acre to several hundred acres. It seems that the outside boundary of the entire Furnace tract of land is described in the deed from Cuyler to plaintiff, and the only proof, if it can be called "proof," that the land in controversy is embraced by that deed, is a question asked the

[10, 11] The appellant does not show in evidence the title paper under which Cuyler's vendor held the land previous to the year 1898; but, if such deed was similar to the one under which the Red River Iron Manufacturing Company held the land in 1869, it contained many exceptions and exclusions, as well as the deed under which plaintiff himself holds, and under those title papers it does not appear that the land in controversy was not embraced within some exclusion or exception, and especially under the deed under which appellant himself holds. If the land in controversy was embraced within some of the exceptions or exclusions in the deeds under which appellant's predecessors in title held the property, the occupancy by tenants of other portions of the land or any portion of the land, while owned by plaintiff's predecessors, could not give any possession of the land in controversy, although the tenant might not be restricted in his possession and was there for the purpose of holding to the extent of the boundaries of his landlord's title. It is true, there is evidence that plaintiff's predecessors in title had many tenants upon the lands within the four-mile circle around Estill Furnace, during many years; but there is a failure to show that the tenants were unrestricted in their holding of the property, or whether they were there for the purpose of possessing the property for the owner, to the extent of the boundaries of his deed, and were not limited to the portions occupied by them; nor does the evidence show,

lands sued for were conveyed to plaintiff by his vendor, the jury should have been instructed to find for the plaintiff, with the converse to find for defendant if the agreement was not made, and the instruction should not have had any qualification relating to repudiation by Watson or any one claiming under him of the tenancy, as less than 15 years intervened between the making of the agreement, if it was made, and the bringing of plaintiff's suit. The alleged agreement was, however, made between Watson and Cuyler, and, unless the land was embraced within the deed which Cuyler thereafter made to plaintiff, the right of Cuyler in the premises did not pass to the plaintiff, and, without evidence that plaintiff had been conveyed the land by Cuyler, the plaintiff has no cause of action because of the agreement. Further, the plaintiff did not offer any such instruction as mentioned above, and did not object to the one which was given, touching the alleged agreement, and does not make complaint of it. Hence, the verdict of the jury being such as the court should have directed, there is no reason to set it aside or reverse the judgment based upon it. The judgment is therefore affirmed.

in the least, as to what portions of the land | W. 361, 12 Ky. Law Rep. 351; Turly v. Rogwere held by the tenants and what portions ers, 1 A. K. Marsh. 245; Fowke v. Darnall, were not held by them. 5 Litt. 317. If Watson entered into such an The judgment of the federal court in the agreement with plaintiff's vendor and the action of Thomas Dewitt Cuyler against Robert A. Mason, which was read in evidence over objections, was a judgment in an action in which neither the defendant nor any one under whom he claims was a party, and was rendered in a suit brought after the lands in controversy were conveyed to McKnight, under whom the defendant claims. The judgment quieted the title in Cuyler to certain portions of the lands within the circle which were claimed by R. A. Mason, and as against Mason's claim; but at the time of the bringing of the suit in which this judgment was rendered, and at the time of its rendition, R. A. Mason had no interest in the land in controversy, as he had joined in a deed with others, theretofore, conveying the lands to McKnight. The deed to McKnight was made, not only by R. A. Mason, but three other joint claimants with him, and, under the facts, it does not appear that such judgment was competent as evidence upon this trial, except for the purpose of showing the extent of the possession of Cuyler as to lands claimed by R. A. Mason within the boundaries designated. The judgment, however, only purported to affect the portion of the land within the four-mile circle, and, while the evidence shows that the lands in controversy in this suit are embraced within the effect of the judgment, it does not show that the tract of land sued for is embraced by the deed from Cuyler to plaintiff, and is not within one of the many exceptions in that deed. Hence it seems that, the plaintiff having failed to show a legal title to the lands, either by a connected title from himself to the commonwealth of Kentucky or by adverse possession the court should have sustained the defendant's motion for a directed verdict in his favor, so far as it was necessary upon plaintiff's part to recover the possession of the land on account of being its legal owner and having the right to possession upon that account.

BERRY et al. v. TRICE.
(Court of Appeals of Kentucky. March 5,
1918.)

FORCIBLE ENTRY AND DETAINER
APPEAL NECESSITY OF TRAVERSE.

21(6)

Under Civ. Code Prac. § 463, requiring on appeal to circuit court from inquisition in forcible entry and detainer that a traverse and a that the traverse had been filed, was insufficient, bond be filed, merely filing bond, which recited since only by filing the traverse can execution be stayed or the circuit court obtain jurisdic tion, and the filing of the traverse should therefore appear of record.

Appeal from Circuit Court, Ballard County. Action by Mrs. Lou Trice against C. R. Berry and others. From a judgment of the circuit court dismissing defendants' appeal from the justice's court, defendants appeal. Af

firmed.

John M. Moore, of La Center, and Milton Anderson, of Wickliffe, for appellants. Ed. Reesor, of Bandanna, and R. B. Flatt, of Clinton, for appellee.

[12] If the lands sued for have been embraced in the deed of conveyance from Cuyler to plaintiff, and were not contained in one of the exceptions in the deed, there was a question which, under the evidence, that plaintiff was entitled to have submitted to the jury, and that was his contention that Watson, the remote vendor of defendant, and one of those under whom defendant claims, had entered upon and taken possession of the SETTLE, C. J. The appellee, Mrs. Lou land under an agreement to hold the land Trice, is the owner of a tract of land in Balunder Cuyler and to purchase it from him in lard county which has been jointly occupied the future. If so, Watson would have been by the appellants C. R. Berry, J. T. Hall, and estopped to deny plaintiff's title, and the Jim Potts, as her tenants for a term of seversame estoppel would prevail against the al years' duration. Insisting that the tendefendant. Sanders v. Moore, 7 S. W. 910, ancy of appellants had ended, and that they 9 Ky. Law Rep. 965; Miller v. South, 14 S. wrongfully refused to surrender to her pos

session of the leased premises, the appellee caused to be issued against them by L. E. Bradley, a justice of the peace, a warrant of forcible detainer, under and by virtue of which she sought to be restored to the pos

the bond, required by the Code, of the traverser, which must be given at the time of the filing of the traverse."

When the case reached the circuit court and the attention of the court was called to

the failure of the appellants to file the traverse in the justice's court by the motion of the appellee to dismiss the appeal, the appellants moved to be permitted to enter a nunc pro tunc order showing the filing of the traverse in the justice's court, which motion the court overruled. Thereupon appellee filed the affidavit of L. E. Bradley, the justice of the peace before whom the inquisition was held, in which it was stated that the appellants did not file in his court the traverse required by Civ. Code, § 463; appellants filed the affidavit of one of their counsel in which it was stated that the traverse had been filed in the justice's court, and appel

session of the land. Following the due execution of the writ of forcible detainer, and on the day fixed by the writ for the inquisition thereunder, the parties by agreement waived their right to a trial by jury and submitted the case to the justice of the peace upon the law and facts, resulting in a judgment finding appellants guilty of the forcible detainer complained of, and restoring to appellee the possession of the land. From that judgment an appeal was prosecuted to the Ballard circuit court, and that court, on the hearing of the case, dismissed the appeal, which left the judgment of the justice's court in full effect. Appellants, complaining of the judgment of the circuit court, have prosecut-lee then filed the affidavit of her counsel con

ed therefrom an appeal to this court.

firming that of the justice of the peace that such traverse had not been filed. The affidavits seem to have been considered by the court, but it adhered to the conclusion that the traverse had not been filed, which necessitated the dismissal of the appeal. If the

clear that the weight of the evidence furnished by them, together with the absence from the record of anything to show the filing of the traverse, justified the circuit court in holding that the inquisition had not been traversed in the justice's court. It seems to have been decided, however, in Burchett v. Blackburn, 4 Bush, 553, that the filing and the use of such affidavits as allowed by the that case, as in this, the appellant, without filing formal traverse of the inquisition against him of forcible entry, executed the

It appears from the record that the circuit court dismissed the appeal upon the ground that the appellants had failed to file in the court of the justice of the peace, within three days next after the judgment of that court was rendered, or at all, a trav-filing of these affidavits was authorized it is erse, as required by Civ. Code, § 463, although they did execute, as required by the same section, with sufficient security the bond necessary to be given by the traversers. The bond was executed by appellants before the justice of the peace, and the whole of the record in the proceedings was returned by that officer to the circuit court within ten days thereafter. In Swanson v. Smith, etc., 117 Ky. 116, 77 S. W. 700, 25 Ky. Law Rep. 1260, we held that section 463, Civil Code, provides the exclusive mode for reviewing proceedings of forcible entry and detainer, or either, and that section 714, authorizing the granting of a new trial on an application made within ten days after judgment, on reasonable notice to the adverse party, had no application to such proceedings. Referring in the opinion to the section last cited we said:

"Manifestly, the section, supra, would authorize the granting of a new trial by the county judge, upon proper grounds, in any ordinary action or proceeding that had been tried by him. But the provisions of the Code regulating the trial of writs of forcible entry, forcible detainer, or forcible entry and detainer, require the unsuccessful party, if dissatisfied with the result of the trial, to pursue a different remedy. The remedy thus provided is specific, and there fore exclusive of all other remedies. It is found in section 463, Civil Code, which provides that, 'If either party conceive himself aggrieved by the finding of the jury [or court] he may file a traverse thereof with the judge or justice within three days next after the finding aforesaid. The traverse serves a twofold purpose: First, it secures to the unsuccessful party a retrial of the case in the circuit court; second, a stay of the proceedings on the inquisition until the trial in the circuit court may be had. In the meantime no serious loss could result to the opposite party from the stay of proceedings on the inquisition, as he would be protected by

* *

circuit court in this case was proper.

In

cuit court, which, on motion by the appellee, statutory bond and took the case to the cirdismissed it for want of an explicit traverse that motion to dismiss the appeal the appelbefore the justice. It also appears that on lant offered, as here, to file a traverse nunc pro tunc, insisting that on the appeal the recital in his bond of the fact of the inquisition and traverse was sufficient evidence of a legal traverse; and if not, that the court erred in rejecting his offer to file an explicit traverse. In the opinion it is said:

"As decided by this court in Wayman v. Taylor, 1 Dana, 528, the bond estops the traverser [appellant] from denying that a traverse had been filed as required by law, and might, as against the traversee also, be presumptive evidence of such filing, in the absence of any opposing fact or testimony. But, in this case, the justice himself, and another witness, testified that no traverse had in fact been filed. The required traverse is the only prescribed mode of appealing to the circuit court, and, like all other appeals, it must make up an express issue for retrial. The statute does not allow a traverse after three days from the date of the inquisition; and, unless it shall have been filed within that time, the justice is required to enforce his judgment. Consequently, as no traverse was filed, his judgment on the inquisition was not suspended; and a subsequent traverse could not

suspend the judgment, nor give jurisdiction to try the truth of the inquisition. Had the traverse been filed in time, without a sufficient bond, the statute would have authorized the execution of the requisite bond in the circuit court; but there is no such authority for filing a traverse in the circuit court. And as the traverse is the required foundation of the circuit court's jurisdiction, and the object of the bond is only security to the traversee, there is good reason for the statutory discrimination between the necessity and the times of filing them. Then, the Code peremptorily requiring the traverse to be filed within three days after the inquisition, or not at all, the circuit court did not err in either of its judgments."

Presumption of delivery and acceptance of deed from husband to wife, prepared, signed, and acknowledged by him, and by him caused to be recorded six years after her death, is sustained by evidence that he, while she was living, told several that she owned the property; after her death stated under oath that it belonged to her, and that he owned only a life estate as her surviving husband; that the tin box, in which the deed was kept, was frequently in her possession and under her control; and that on one occasion he said to her she had the papers and not contradicted by the facts that he, after evidencing her possession of plenty to live on; her death, conveyed the land to another, it being reconveyed to him a few days later, and after the deed to the wife had been recorded, ted suicide, devising it to another. executed a will, a few hours before he commit6. EVIDENCE 278 - ADMISSIONS AGAINST INTEREST.

Manifestly, the filing of the traverse in the court of the justice within the three days required by Civ. Code, § 468, cannot be dispensed with: (1) Because necessary to stay the execution of the judgment entered to conform to the inquisition: (2) because necessary to give the circuit court jurisdiction of the appeal; and the authentic way to show the filing of the traverse is to let the fact appear of record. In Martin v. Richardson, 15 S. W. 248, 12 Ky. Law Rep. 804, it appears that on the trial of the case, which was a proceeding of forcible detainer, the jury failed to agree, and the parties submitted a decision of their rights to three persons, who returned a verdict that the plain-manded with directions. tiff in the warrant should have restitution. No traverse was filed, but an appeal was taken from the judgment of restitution entered by the justice. This court held that the appeal was properly dismissed because there was no traverse filed.

On the question of delivery and acceptance of a deed, the grantor's admission against interest is competent against persons claiming as his heirs or devisees.

It follows from what has been said that

the dismissal of the appeal in the circuit court was not error. Therefore the judg

ment of that court is affirmed.

Appeal from Circuit Court, Caldwell County.

Action by Sallie Sasseen against Mabel Farmer and others. From an adverse judgment, plaintiff appeals. Reversed and re

Miller & Morse, of Princeton, for appellant. L. B. Alexander, of Paducah, for appellee Farmer. Speight & Dean, of Mayfield, for appellees Stone heirs.

CLARKE, J. On January 4, 1909, Henry C. Stone signed and acknowledged before the county clerk of Caldwell county a deed conveying to his wife, Lillie F. Stone, a house and lot in Princeton, Ky. He did not then have this deed recorded, and appellees insist there is no positive proof that he ever delivered it to his wife. He and his wife continued to occupy the premises described in the deed as their home until her death, on November 24, 1914, during which time he listed the property for taxation in his own name, and presumably paid the taxes thereon, but, on several occasions, he said to different persons that the property belonged to his wife, and she, upon several occasions, had in her possession a small tin box which belonged to him, and in which he at least kept his valuable papers. Once when he was quite ill, he said to his wife, in the presence of one of the witnesses:

"I am still alive. If I had died last night though, you would have been all right. You have got the papers here to show that you have got plenty to live on if I had died last night."

The wife then had the little tin box in which he kept his valuable papers; and, at that time, practically the only property owned by either of them was the house and lot described in the deed he had executed to his wife.

Henry C. Stone and his wife, Lillie F.

Stone, had but one child, a son, who died childless prior to the death of his mother; and Lillie F. Stone, from money given her by her parents, furnished part at least of the funds used in the purchase of the property involved.

ants

not only traversed the petition, but in addition alleged title in themselves and sought and procured a judgment, not only on the question of quieting plaintiff's title, but upon the question of their own title under Henry C. Stone, including the On April 9, 1915, Henry C. Stone conveyed cancellation of plaintiff's deed from him, this same property to Nola Whiteside in it will be seen the parties and the chancelconsideration of her agreement to nurse and lor treated the suit as an action to try the care for him so long as he lived. Four days title to the property among all the parties, later, Nola Whiteside reconveyed the prop- rather than simply as an action by plainerty to Stone in consideration of her release tiff to quiet title; and we might therefore of the obligation to nurse and care for him so consider it. However, the question of recited in the deed to her. A short time possession depends entirely upon the quesafter this, Stone married again, and intion of title, as Mrs. Mattie C. Stone, who November, 1915, his second wife, Mattie C. was actually in possession, was holding unStone, sued him for divorce and alimony, der contract as tenant of plaintiff if she attaching the property above referred to. had title, and, if plaintiff's title is upheld, On December 24, 1915, Stone had recorded she had both title and possession and was the deed which, on January 4, 1909, he had entitled to the specific relief sought. executed to his first wife. On March 1, 1916, Stone executed a will, devising this same property to Mabel Farmer, and upon the same day committed suicide. On January 15, 1916, Mattie C. Stone, the second wife, conveyed to Sallie Sasseen, the mother of Lillie F. Stone, by quitclaim deed, whatever interest she owned in this property.

2. Counsel for plaintiff insist (1) that an actual delivery of the deed to Lillie F. Stone by Henry C. Stone during her lifetime is proven by circumstantial evidence; and (2) that such a delivery is presumed from the conceded facts that Stone signed, acknowledged, and had the deed recorded.

[2, 3] Defendants deny actual or any deSallie Sasseen, claiming to have inherited livery was proven, and urge that, although this property as the only heir of her daugh- Stone signed and acknowledged the deed durter, Lillie F. Stone, and to be in possessioning the lifetime of his wife, Lillie, and caused thereof, instituted this action, under section it to be recorded after her death, since she 11, Kentucky Statutes, to quiet her title thereto, making Mabel Farmer, the devisee under the will of Henry C. Stone, Dr. I. Z. Barbour, administrator with will annexed of Henry C. Stone, and the heirs of Henry C. Stone parties defendant. Each of the defendants filed separate answers, denying both the title and possession of plaintiff and asserting title to the property. The

was dead when the deed was recorded, there can be no presumption of a delivery to her from such facts. It is, of course, necessary, in order to render a deed effective, that there should have been a delivery by the grantor and an acceptance by the grantee, but a manual delivery by the grantor is not necessary to effect a legal delivery, nor is it necessary to a legal acceptance that the grantee have actual possession of the deed. Shoptaw v. Ridgeway, 60 S. W. 723, 22 Ky. Law Rep. 1495; Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. 420, 65 S. W. 607, 23 Ky. Law Rep. 800, 1101; Interstate Investment Co. v. Bail

claim of each defendant of title to the property was denied by plaintiff in reply to the separate answers. After trial, the chancellor dismissed the petition, canceled the deed from Henry C. Stone to Lillie F. Stone, adjudged that Henry C. Stone was the owney, 93 S. W. 578, 29 Ky. Law Rep. 468; Washer of the property at the time of his death, ordered it sold to pay his debts and costs of administration, that Mattie C. Stone was entitled to dower in the proceeds of sale of the property, and withheld judgment as to whether Mabel Farmer as devisee or the heirs of Henry C. Stone were entitled to the balance of the funds derived from the sale of the property. From that judgment, plaintiff appeals.

[1] 1. Appellees insist, first, that as plaintiff began this suit to quiet title and alleged, as she must have done, that she had both title and possession, and failing to prove possession, she cannot complain of the judgment dismissing her petition; and this position, assuming plaintiff failed as alleged to prove possession or title, would have been correct had the judgment gone no further than to dismiss plaintiff's petition. But, as defend

burn's Real Property, 261; 8 R. C. L. p. 980. As is frequently said, delivery may be shown by words without acts, or by acts without words, or by both words and acts. We do not consider the fact that Stone had the deed in his possession after the death of his wife of any controlling effect whatever, because as he and his wife lived together and occupied as their home the property described in the deed until her death, even though the deed had been delivered to her, it would have fallen into his possession at her death, or might consistently have been intrusted to his custody by his wife, on account of their confidential relationship at the time of delivery if made, without ever having actually been in her possession.

[4] The fact that he had it prepared, signed and acknowledged it, and had it recorded, under the circumstances proven, is, we think, some evidence, or at least raises a presump