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This deed was made on behalf of some of plaintiff, wherein he was asked if the de-
the parties who were parties to the agree- scription in that deed included the little tract
ment made in the year 1849, and of other of land in controversy, and he answered that
parties not known to that agreement, while it did. It is apparent that from this question
it does not appear that all of the parties to and answer, alone, it is impossible to say
that agreement, who were to have the bene- whether or not the land in controversy in this
fits of the lands within the four mile circle action is contained in one of the 40 odd
of Estill Furnace, nor their heirs, were par- tracts excepted from that conveyance,
ties to that action, and the deed conveys “all whether it is not embraced within any of the
the right, title and interest of Samuel Jack- exceptions. The description in the deed em-
son & Company and Josiah A. Jackson in and braced all the lands within its outside bound-
to all of the lands they had any interest in" ary. It is a well-established rule that where
within that circle, but the deed expressly re- a deed or patent is relied upon for title, or
serves the rights of all purchasers, whatever to show the extent of possession, and there
they may be, to such purchasers, and only are lands excepted from the deed and not con-
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 pos-
who 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 141 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. Breath-
which 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 [10, 11] The appellant does not show in
containing 175 acres, and also another tract evidence the title paper under which Cuyler's
of land in Estill county. It, however, ap- vendor held the land previous to the year
pears from this deed that these were the 1898; but, if such deed was similar to the one
tracts of land which were conveyed to the under which the Red River Iron Manufactur-
Kentucky River Iron Manufacturing Com- ing Company held the land in 1869, it con-
pany by one Edward K. Goodnow on Janu- tained many exceptions and exclusions, as
ary 28, 1881. There is also parol evidence well as the deed under which plaintiff him-
that, some time previous to the conveyance self holds, and under those title papers it does
from the Kentucky River Iron Manufactur- not appear that the land in controversy was
ing Company to Cuyler, the holdings of this not embraced within some exclusion or excep-
company, or some part of them, had been tion, and especially under the deed under
claimed or owned by the Kentucky Union which appellant himself holds. If the land
Land Company; but how long the land com- in controversy was embraced within some of
pany was the owner, or whether it was the the exceptions or exclusions in the deeds un-
owner of all or only a part of the lands with der which appellant's predecessors in title
in the four mile circle, does not appear. held the property, the occupancy by ten-
Neither does it appear for what length of ants of other portions of the land or any por-
time the Kentucky River Iron Manufactur- tion of the land, while owned by plaintiff's
ing Company had held title to the lands em- predecessors, could not give any possession
braced within the deed to it from Goodnow, of the land in controversy, although the ten-
if such deed it had, at the time it conveyed ant might not be restricted in his possession
to Cuyler.

and was there for the purpose of holding to On April 7, 1902, Cuyler executed a deed the extent of the boundaries of his landlord's of conveyance to the appellant, Russell, by title. It is true, there is evidence that plainwhich he conveyed to him the lands embrac- tiff's predecessors in title had many tenants ed within the Furnace tract, but excepted upon the lands within the four-mile circle from the conveyance 40 separate tracts of around Estill Furnace, during many years; land, containing from one acre to several but ther is a failure to show that the tenhundred acres. It seems that the outside ants were unrestricted in their holding of the boundary of the entire Furnace tract of land property, or whether they were there for the is described in the deed from Cuyler to plain purpose of possessing the property for the tiff, and the only proof, if it can be called owner, to the extent of the boundaries of his "proof," that the land in controversy is em- deed, and were not limited to the portions ocbraced by that deed, is a question asked the cupied by them; nor does the evidence show,

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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 lands sued for were conveyed to plaintiff Robert A. Mason, which was read in evidence by his vendor, the jury should have been over objections, was a judgment in an action instructed to find for the plaintiff, with the in which neither the defendant nor any one converse to find for defendant if the agreeunder whom he claims was a party, and was ment was not made, and the instruction rendered in a suit brought after the lands should not have had any qualification relatin controversy were conveyed to McKnight, ing to repudiation by Watson or any one under whom the defendant claims. The judg- claiming under him of the tenancy, as less ment quieted the title in Cuyler to certain than 15 years intervened between the making portions of the lands within the circle which of the agreement, if it was made, and the were claimed by R. A. Mason, and as against bringing of plaintiff's suit. The alleged Mason's claim; but at the time of the bring- agreement was, however, made between Wating of the suit in which this judgment was son and Cuyler, and, unless the land was emrendered, and at the time of its rendition, braced within the deed which Cuyler thereR. A, Mason had no interest in the land in after made to plaintiff, the right of Cuyler controversy, as he had joined in a deed with in the premises did not pass to the plaintiff, others, theretofore, conveying the lands to and, without evidence that plaintiff had been McKnight. The deed to McKnight was made, conveyed the land by Cuyler, the plaintiff not only by R. A. Mason, but three other has no cause of action because of the agreejoint claimants with him, and, under the ment. Further, the plaintiff did not offer any facts, it does not appear that such judgment such instruction as mentioned above, and was competent as evidence upon this trial, did not object to the one which was given, except for the purpose of showing the extent touching the alleged agreement, and does not of the possession of Cuyler as to lands claim- make complaint of it. Hence, the verdict ed by R. A. Mason within the boundaries of the jury being such as the court should designated. The judgment, however, only have directed, there is no reason to set it purported to affect the portion of the land aside or reverse the judgment based upon it. within the four-mile circle, and, while the evi- The judgment is therefore affi: med. dence shows that the lands in controversy in this suit are embraced within the effect of the judgment, it does not show that the tract

BERRY et al. v. TRICE. of land sued for is embraced by the deed

(Court of Appeals of Kentucky. March 5, from Cuyler to plaintiff, and is not within one

1918.) of the many exceptions in that deed. Hence it seems that, the plaintiff having failed to

FORCIBLE ENTRY AND DETAINER 21(6)

APPEAL-NECESSITY OF TRAVERSE. show a legal title to the lands, either by a

Under Civ. Code Prac. & 463, requiring on connected title from himself to the common- appeal to circuit court from inquisition in forciwealth of Kentucky or by adverse possession ble entry and detainer that a traverse and a the court should have sustained the defend that the traverse had been filed, was insufficient,

bond be filed, merely filing bond, which recited ant's motion for a directed verdict in his fa- since only by filing the traverse can execution vor, so far as it was necessary upon plain- be stayed or the circuit court obtain jurisdictiff's part to recover the possession of the tion, and the filing of the traverse should there

fore appear of record. land on account of being its legal owner and having the right to possession upon that ac

Appeal from Circuit Court, Ballard County, count.

Action by Mrs. Lou Trice against C. R. Ber[12] If the lands sued for have been em- ry and others. From a judgment of the cirbraced in the deed of conveyance from cuit court dismissing defendants' appeal from Cuyler to plaintiff, and were not contained the justice's court, defendants appeal. Afin one of the exceptions in the deed, there

firmed. was a question which, under the evidence, John M. Moore, of La Center, and Milton that plaintiff was entitled to have submitted Anderson, of Wickliffe, for appellants. Ed. to the jury, and that was his contention that Reesor, of Bandanna, and R. B. Flatt, of Watson, the remote vendor of defendant, and Clinton, for appellee. 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

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

session of the leased premises, the appellee, the bond, required by the Code, of the traverser, caused to be issued against thein by L. E. which must be given at the time of the filing of

the traverse." Bradley, a justice of the peace, a warrant of forcible detainer, under and by virtue of

When the case reached the circuit court which she sought to be restored to the pos

and the attention of the court was called to session of the land. Following the due ex- the failure of the appellants to file the travecution of the writ of forcible detainer, and erse in the justice's court by the motion of on the day fixed by the writ for the inquisi- the appellee to dismiss the appeal, the appeltion thereunder, the parties by agreement

lants moved to be permitted to enter waived their right to a trial by jury and nunc pro tunc order showing the filing of the submitted the case to the justice of the peace traverse in the justice's court, which motion upon the law and facts, resulting in a judg. the court overruled. Thereupon appellee filment finding appellants guilty of the forcible ed the affidavit of L. E. Bradley, the jusdetainer complained of, and restoring to ap

tice of the peace before whom the inquisition pellee the possession of the land. From that was held, in which it was stated that the apjudgment an appeal was prosecuted to the pellants did not file in his court the traverse Ballard circuit court, and that court, on the required by Civ. Code, 8 463; appellants filhearing of the case, dismissed the appeal, ed the affidavit of one of their counsel in which left the judgment of the justice's court which it was stated that the traverse had in full effect. Appellants, complaining of the been filed in the justice's court, and appeljudgment of the circuit court, have prosecut- lee then filed the affidavit of her counsel coned therefrom an appeal to this court.

firming that of the justice of the peace that It appears from the record that the cir- such traverse had not been filed. The afficuit court dismissed the appeal upon the davits seem to have been considered by the ground that the appellants had failed to file court, but it adhered to the conclusion that in the court of the justice of the peace, the traverse had not been filed, which neceswithin three days next after the judgment sitated the dismissal of the appeal. If the 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, al- | clear that the weight of the evidence furthough they did execute, as required by the nished by them, together with the absence same section, with sufficient security the bond from the record of anything to show the filnecessary to be given by the traversers. The ing of the traverse, justified the circuit court bond was executed by appellants before the in holding that the inquisition had not been justice of the peace, and the whole of the rec

traversed in the justice's court. It seems to ord in the proceedings was returned by that have been decided, however, in Burchett v. officer to the circuit court within ten days Blackburn, 4 Bush, 553, that the filing and thereafter. In Swanson v. Smith, etc., 117 the use of such affidavits as allowed by the Ky. 116, 77 S. W. 700, 25 Ky. Law Rep. 1260, that case, as in this, the appellant, without

circuit court in this case was proper.

In we held that section 463, Civil Code, pro filing formal traverse of the inquisition vides the exclusive mode for reviewing pro against him of forcible entry, executed the ceedings of forcible entry and detainer, or either, and that section 714, authorizing the statutory bond and took the case to the cirgranting of a new trial on an application dismissed it for want of an explicit traverse

cuit court, which, on motion by the appellee, made within ten days after judgment, on reasonable notice to the adverse party, had no that motion to dismiss the appeal the appel

before the justice. It also appears that on application to such proceedings. Referring lant offered, as here, to file a traverse nunc in the opinion to the section last cited we pro tunc, insisting that on the appeal the said:

recital in his bond of the fact of the inquisi"Manifestly, the section, supra, would author- tion and traverse was sufficient evidence of ize the granting of a new trial by the county a legal traverse; and if not, that the court judge, upon proper grounds, in any ordinary action or proceeding that had been tried by erred in rejecting his offer to file an explicit him. But the provisions of the Code regulat- traverse. In the opinion it is said: ing the trial of writs of forcible entry, forcible “As decided by this court in Wayman V. detainer, or forcible entry and detainer, require Taylor, 1 Dana, 528, the bond estops the travthe unsuccessful party, if dissatisfied with the erser (appellant] from denying that a traverse result of the trial, to pursue a different remedy. had been filed as required by law, and might, as The remedy thus provided is specific, and there against the traversee also, be presumptive evifore exclusive of all other remedies. It is found dence of such filing, in the absence of any opin section 463, Civil Code, which provides that, posing fact or testimony. But, in this case, the 'If either party conceive himself aggrieved by justice himself, and another witness, testified the finding of the jury (or court] he may file a that no traverse had in fact been filed. The retraverse thereof with the judge or justice with- quired traverse is the only prescribed mode of in three days next after the finding aforesaid. appealing to the circuit court, and, like all other

*' The traverse serves a twofold purpose: appeals, it must make up an express issue for First, it secures to the unsuccessful party a re- retrial. The statute does not allow a traverse trial of the case in the circuit court; second, after three days from the date of the inquisia stay of the proceedings on the inquisition un- tion; and, unless it shall have been filed withtil the trial in the circuit court may be had. in that time, the justice is required to enforce In the meantime no serious loss could result to his judgment. Consequently, as no traverse was the opposite party from the stay of proceedings filed, his judgment on the inquisition was not on the inquisition, as he would be protected by suspended; and a subsequent traverse could not

suspend the judgment, nor give jurisdiction to , to pay for the property, and their only child try the truth of the inquisition. Had the trav- having recently died childless. erse been filed in time, without a sufficient 5. DEEDS Om 194(1) DELIVERY PRESUMPbond, the statute would have authorized the TION AND EVIDENCE. execution of the requisite bond in the circuit Presumption of delivery and acceptance of court; but there is no such authority for filing deed from husband to wife, prepared, signed, and a traverse in the circuit court. And as the acknowledged by him, and by him caused to be traverse is the required foundation of the cir- recorded six years after her death, is sustained cuit court's jurisdiction, and the object of the by evidence that he, while she was living, told bond is only security to the traversee, there is several that she owned the property; after her good reason for the statutory discrimination be- death stated under oath that it belonged to her, tween the necessity and the times of filing them. and that he owned only a life estate as her Then, the Code peremptorily requiring the trav- surviving husband; that the tin box, in which erse to be filed within three days after the in- the deed was kept, was frequently in her posquisition, or not at all, the circuit court did not session and under her control; and that on err in either of its judgments."

one occasion he said to her she had the papers Manifestly, the filing of the traverse in the evidencing her possession of plenty to live on ;

and not contradicted by the facts that he, after court of the justice within the three days re- her death, conveyed the land to another, it bequired by Civ. Code, & 463, cannot be dis- ing reconveyed to him a few days later, and pensed with: (1) Because necessary to stay after the deed to the wife had been recorded, the execution of the judgment entered to executed a will, a few hours before he commit

ted suicide, devising it to another. conform to the inquisition: (2) because neces- 6. EVIDENCE em 278 ADMISSIONS AGAINST sary to give the circuit court jurisdiction of INTEREST. the appeal; and the authentic way to show

On the question of delivery and acceptance the filing of the traverse is to let the fact of a deed, the grantor's admission against in

terest is competent against persons claiming as appear of record. In Martin v. Richardson, his heirs or devisees. 15 S. W. 248, 12 Ky. Law Rep. 804, it ap

Appeal from Circuit Court, Caldwell pears that on the trial of the case, which

County. was a proceeding of forcible detainer, the jury failed to agree, and the parties submit- Farmer and others. From an adverse judg

Action by Sallie Sasseen against Mabel ted a decision of their rights to three per- ment, plaintiff appeals. Reversed and resons, 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 tak

Miller & Morse, of Princeton, for appelen from the judgment of restitution entered lant. L. B. Alexander, of Paducah, for apby the justice. This court held that the ap- pellee Farmer. Speight & Dean, of Mayfield, peal was properly dismissed because there for appellees Stone heirs. was no traverse filed. It follows from what has been said that

CLARKE, J. On January 4, 1909, Henry the dismissal of the appeal in the circuit C. Stone signed and acknowledged before the court was not error. Therefore the judg

county clerk of Caldwell county a deed conment of that court is affirmed.

veying 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 delivSASSEEN V. FARMER et al.

ered it to his wife. He and his wife con(Court of Appeals of Kentucky. March 5, tinued to occupy the premises described in 1918.)

the deed as their home until her death, on 1. QUIETING TITLE em 12(10)-POSSESSION BY November 24, 1914, during which time he TENANT.

listed the property for taxation in his own Plaintiff's possession by a tenant is suffi- name, and presumably paid the taxes therecient for action to quiet title. 2. DEEDS Om56(1) – DELIVERY AND ACCEPT- different persons that the property belonged

on, but, on several occasions, he said to While, for a deed to be effective, there must to his wife, and she, upon several occasions, have been a delivery and acceptance, neither had in her possession a small tin box which manual delivery nor actual possession of the belonged to him, and in which he at least deed by the grantee is necessary.

kept his valuable papers. Once when he was 3. DEEDS W208(1) – DELIVERY – GRANTOR'S

POSSESSION AFTER GRANTEE'S DEATH-HUS- quite ill, he said to his wife, in the presence BAND AND WIFE.

of one of the witnesses: That the grantor had the deed in his pos "I am still alive. If I had died last night session after the grantee's death is not of any though, you would have been all right. You controlling effect on the question of delivery; have got the papers here to show that you have they being husband and wife and living together. got plenty to live on if I had died last night.” 4. DEEDS 194(5) - DELIVERY PRESUMP

The wife then had the little tin box in That a husband prepared, signed, and ac

which he kept his valuable papers; and, at knowledged a deed to his wife, and had it re- that time, practically the only property owncorded, though the recordation was six years ed by either of them was the house and after her death, is some evidence, or at least lot described in the deed he had executed to raises a presumption, of delivery and acceptance, requiring clear and satisfactory proof to bis wife. overcome it; her money having at least helped Henry C. Stone and his wife, Lillie F.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ANCE.

TION.

Stone, had but one child, a son, who died , ants not only traversed the petition, childless prior to the death of his mother; but in addition alleged title in themselves and Lillie F. Stone, from money given her and sought and procured a judgment, not by her parents, furnished part at least of only on the question of quieting plaintiff's the funds used in the purchase of the proper- 'title, but upon the question of their own ty involved.

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 in tion 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, 2. Counsel for plaintiff insist (1) that an 1916, Stone executed a will, devising this actual delivery of the deed to Lillie F. Stone same property to Mabel Farmer, and upon by Henry C. Stone during her lifetime is the same day committed suicide. On Jan- proven by circumstantial evidence; and (2) uary 15, 1916, Mattie C. Stone, the second that such a delivery is presumed from the wife, conveyed to Sallie Sasseen, the mother conceded facts that Stone signed, acknowlof Lillie F. Stone, by quitclaim deed, what- edged, and had the deed recorded. ever interest she owned in this property.

[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 possession ing the lifetime of his wife, Lillie, and caused thereof, instituted this action, under section it to be recorded after her death, since sie 11, Kentucky Statutes, to quiet her title was dead when the deed was recorded, there thereto, making Mabel Farmer, the devisee can be no presumption of a delivery to her under the will of Henry C. Stone, Dr. I. z. from such facts. It is, of course, necessary, Barbour, administrator with will annexed in order to render a deed effective, that there of Henry C. Stone, and the heirs of Henry should have been a delivery by the grantor C. Stone parties defendant. Each of the and an acceptance by the grantee, but a defendants filed separate answers, denying manual delivery by the grantor is not necesboth the title and possession of plaintiff sary to effect a legal delivery, nor is it necand asserting title to the property.

The essary to a legal acceptance that the grantee claim of each defendant of title to the prop

have actual possession of the deed. Shoptaw erty was denied by plaintiff in reply to the

v. Ridgeway, 60 S. W. 723, 22 Ky. Law Rep. separate answers. After trial, the chan- 1495; Bunnell v. Bunnell

, 111 Ky. 566, 67 cellor dismissed the petition, canceled the S. W. 420, 65 S. W. 607, 23 Ky. Law Rep. deed from Henry C. Stone to Lillie F. Stone, 800, 1101; Interstate Investment Co. v. Bailadjudged that Henry C. Stone was the own

ey, 93 S. W. 578, 29 Ky. Law Rep. 468; Washer of the property at the time of his death. 980. As is frequently said, delivery may be

burn's Real Property, 261; 8 R. C. L. P. ordered it sold to pay his debts and costs shown by words without acts, or by acts of administration, that Mattie C. Stone was entitled to dower in the proceeds of sale We do not consider the fact that Stone had

without words, or by both words and acts. of the property, and withheld judgment as the deed in his possession after the death to whether Mabel Farmer as devisee or the of his wife of any controlling effect whatever, heirs of Henry C. Stone were entitled to because as he and his wife lived together the balance of the funds derived from the and occupied as their home the property desale of the property. From that judgment, scribed in the deed until her death, even plaintiff appeals.

though the deed had been delivered to her, [1] 1. Appellees insist, first, that as plain- it would have fallen into his possession at tiff began this suit to quiet title and alleged, her death, or might consistently have been as she must have done, that she had both title intrusted to his custody by his wife, on acand possession, and failing to prove posses- count of their confidential relationship at sion, she cannot complain of the judgment the time of delivery if made, without ever dismissing her petition; and this position, as having actually been in her possession. suming plaintiff failed as alleged to prove [4] The fact that he had it prepared, signed possession or title, would have been correct and acknowledged it, and had it recorded, had the judgment gone no further than to under the circumstances proven, is, we think, dismiss plaintiff's petition. But, as defend-some evidence, or at least raises a presump

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