JURORS-See Evidence, 5, 6.
Jury Trial-One Cannot Avoid by Bringing Action in Equity-
Ejectment.-A party cannot avoid a trial by jury by bringing
his action in equity, unless he is authorized by law to bring
it there. The evidence showing appellee to be in the actual
possession of the land, claiming it as his own, the action
should have been in ejectment. Newsome v. Hamilton......
1. Action for Damages for Injury to Poossession-Former
Opinion. An action to quiet title cannot be maintained by
parties who show no title, and such an action should be ais-
missed following as it does the reversal of an action for dam-
ages to possession where it was held that the one in posses-
ion had the right to maintain the action for damages. In-
stead of the present action, the former action should have
been redocketed and proceedings had under the former opin-
ion. Hall v. Deaton, et al., 32 R. 34.) Deaton, et al. v. Bur-
ton, et al.
Title Adverse Holding-What is Necessary to Support Such
Title. To support a title to land based upon adverse holding
the claimant must show an open, adverse, notorious and con-
tinuous holding for the last fifteen years. Sparks v. Jackson,
et. al.
Land-Sale of by Court-New Trial-Grounds Therefor-Time
in Which to be Made.-Section 344, Civil Code, provides that
"if grounds for a new trial are discovered after the term at
which the verdict or decision is rendered, the application may
be made in a petition filed with the clerk not later than the
second term after the discovery," and Section 340 provides
that "accident or surprise, which ordinary prudence could not
have guarded against, are grounds for a new trial." Held,
where, in a sale of land made in 1904, a deed was made by
mistake so as to include land not intended to be sold, and
which had been held adversely by another for over thirty
years, the court properly granted a new trial four years after
the sale, and set the sale aside and directed another sale by
proper calls and boundary of the land really sold. Winkler
et al. v. Peters, et al........
Real Property-Action for Injury to-Person in Possession
has Right to Recovery.-One in possession of real property
has a right to recover for an injury to his possession, and is
entitled to maintain such action, although he does not show
title from the Commonwealth, nor fifteen years, open, no-
torious, adverse possession. Brink, et al. v. Moeschl, Edwards
Corrugating Co.
Title Thereto-Adverse Possession-Limitation Champer-
ty. The evidence in this action shows that at the time
appellant bought the land in controversy it was in the act-
ual adverse possession of another, and that it has been in
the adverse and uninterrupted possession of appellee and
those under whom he claims for more than fifty years, and
therefore appellant's action is barred both by the statutes of
limitation and champerty. Muncy v. Smith
6. Pleading-Denying Evidence of Title-Redundancy.—Where,
in an action for title to land the answer denied plaintiff's
title to the land, or to any part thereof, and averred title
in himself, this was sufficient without a denial of the mere
evidence of the alleged title, such evidence so pleaded being
redundant or irrelevant matter not required by the rules
of pleading to be traversed. Idem
Verbal Agreement to Buy-Statute of Frauds.-A verbal
agreement for the purchase of land is in violation of the
statute and not enforcible. (See Statute of Frauds and
Perjuries, Kentucky Statutes, Section 470.) Estes v. Estes. 261
Quantity Boundary-Title- Actual Occupancy for Forty
Years Under Deed.-This is a controversy between the
parties hereto as to the boundary and quantity of land
claimed and owned by the appellees. Held, Upon a con-
sideration of the pleadings, proof and report of the sur-
veyor the appellees have a good title to the land claimed by
them, and that they have fortified their position by add-
ing to their constructive possession an actual occupancy for
more than forty years, and while the outside boundary of
the land claimed to be covered by their deeds are not very
well defined they were laying claim to it under thei: decd,
and that the chancellor in adjudging their title good
reached the right conclusion. Vance v. Gray et al.
Passways-Belonging to Land Passes With it Unless Re-
served. A right or appurtenance belonging to land, passes
with the land unless expressly reserved, and the fact that
one has another outlet can not militate against his right
to use the one that was established and in use at the
time he became the owner of the land. Conley, et al. v. Fair-
child . . .
10. Compulsory Sale or Purchase-Not Allowable.-We know of
no law to compel an adult to sell his land or to compe! one
to purchase it against his will except in cases where the prop-
erty cannot be divided without materially impairing its
value. Middleton, et al. v. Fields
11. Widow Can Have Homestead or Dower-But Not Both.-A
widow cannot be allotted both homestead and dower in her
husband's estate. She may select either but not both Idem 352
12. Division of Land-How Effected.-In a division of land be-
tween three heirs who jointly own three-thirteenths inter-
est therein the court should divide the three-thirteenihs to
each of them so that it may adjoin their other land, if it can
be done without material detriment to the interest of the
others. Idem
13. Landowner-Divestment of Title by Possession-Proof of In
tention to Claim Adversely.-It is well settled that before the
owner of land, holding under title from the Commonwealth,
can be divested of his title by the mere possession of another,
such possession must be shown by positive proof to have been
open, notorious, exclusive, hostile, continuous and adverse for
a period of fifteen years before the institution of the suit, and
of such a character as to give a cause of action for every mo-
ent of time, and, when such possession is claimed under dif
ferent tenants the intention with which each tenant entered,
and that the tenancy was unbroken, must likewise be proved.
Upchurch, et al. v. Sutton Bros., et al. ....
14. Entry Under Void Patent-Acknowledgment of Superior Title
-It is also well settled that one who under a void patent,
and, upon demand for possession by the true owner acknowl-
edges the superior title of such owner, and agrees to hold pos-
session under him, is estopped to plead adverse possession to
the suit of the owner and those claiming under him, unless
he had given notice to the owner fifteen years before the guit
was filed, that he had changed his amicable into a hostile pos-
session, and when the ancestor is estopped under these circum-
stances his heirs and representatives are likewise estopped.
Idem ...
15. Where land is held adversely, the fact that the claimant is
insane does not stop the running of the statute of limitation,
unless the insanity existed at the time his cause of action ac-
crued, and if it existed when his cause of action accrued, and
continued for fifteen years, the disability was removed by his
death, and the action was barred in three years thereafter, al-
though his heirs were under disability at the time. Hale's
Heirs, v. Ritchie ...
16. Thirty years adverse possession bars an action regardless of
disability. Idem ..
.... 424
17. Landowner-Permissive Use by Brother-Adverse Posses-
sion-Sale-Champerty.-Where the owner of a tract of land
permitted his brother to live on it, cultivate and rent out por-
tions of it to whom he pleased and after his brother's death
his widow was given permission to live on it, her occupancy
was not adverse to, but was under the owner and the sale
of the land by the owner was not champertous. Perry v. Veal. 441
18. Inducing Another to Buy-Ignorance of Rights-Relative
Rights.-Where one in ignorance of his rights induced
a third person to buy land, the latter also being ignorant
of the true state of facts and relying on the statements and
inducements made by the former, will be protected in a
subsequent dispute between the two as to whether the land
was, in fact, the property of the one inducing the pur-
chase at the time. Hall, et al. v. Pratt, et al......
... 561
19. Call Patents-Absence of Corners-Discrepancy.-If nothing
else appears in a "call" patent-that is, one whose cor-
ners are all stakes but one, or where the lines were not
run out and marked at the time-except a discrepancy be-
tween the figure made by platting the patent calls and the
surveyor's plat, it is not proof of a mistake in the patent.
It is apt to be a mistake in the surveyor's plat. Idem ...... 561
20. Surveyor's Plat-Corners and Distances.-A surveyor's plat
is of equal dignity with his other certified work, but not
superior. The correct running of a patent, where there is
but one visible corner, is to follow the calls, courses and
distances, and closing the last line so as to make a com-
plete survey. Idem
21. Quieting Title-Possession of Plaintiff.-In an action to
quiet title to land where the evidence shows that the
plaintiff was not in the actual possession of the land a
judgment dismissing the petition was proper. Idem
22. Two Innocent Persons-Misrepresentation
maxim is where one of two innocent persons must suffer, he
alone should suffer who brought about the condition by his
misrepresentations. Idem . .
23. Lands-Action to Quiet Title.-In an action to quiet title,
the question was, whether or not two adjoining landown.
ers established a certain conditional line. Held, upon an
examination of the record that the evidence sustains the
finding of the chancellor that the conditional lines had been
established. Childers v. Belcher
.. C05
24. Inheritance-Investment of Proceeds-Reasonable Time.-
The head of a family who inherits a share in an indivisible
tract of land has a reasonable time to procure a sale of
the land, and the investment of the proceeds of his share
in a homestead, and a year or eighteen months is not an un-
reasonable time for this purpose where he is a convict in
the penitentiary. Robinson v. Robinson.
.... 589
25. Sale of-Written Contract-Signed by Vendor-Validity.
-A written contract forthe sale of land is enforcible
against both parties to it if signed by the vendor. The ven-
dor holding the title is the party to be charged by such
contract within the meaning of the statute of frauds, and
an action against the vendee for the purchase money may
be maintained, although he did not sign the written con-
tract. Evans v. Stratton
26. Assignment of Titie Bond-Validity-Acceptance.-The law
permits the assignment of a title bond by the vendee and
does not require a written acceptance of the assignment by
the assignee. Both the vendor and assignor are bound to
perform the contract and each is liable to the assignee
for its breach. Idem
27. Ejectment-Possession Under Color of Title-Boundary.-
Where one is in actual possession, under color of title, of a
part of the land within his boundary, the law by construc-
tion carries his possession to the full extent of his boun-
dary. Slaven, et al v. Dority
28. Same
Title by Adverse Possession.-Where one claims title
by adverse possession only, he acquires no title to any
land except that which is in his actual possession. Idem... 640
29. Same-Constructive Possession- Squatter's Title. There
can be no constructive possession without color of title. The
squatter's sovereignty is confined to his dominion. Idem ... 640
30. Real Estate-Verbal Agreements to Buy at Commissioner's
Sale. This court has often decided that verbal agreements
to buy real estate at commissioner's sale for the owner
are enforcible. But such verbal agreements must be well
established by proof before being enforced. Warden v.
O'Brien.
31. Evidence-Tender.-The evidence examined and held suf-
ficient to show a verbal agreement for the purchase of the
property, but under the agreement the money which appellee
had paid not being due at the time there was no necessity
for a tender. Idem.
32. Location of Boundary Line-Identification
This is an action brought in equity to enjoin a trespass, and
turns on the true location of the dividing line between appel.
lant and appellee. Evidence was heard as to how the
respective grantees construed the description of the divid-
ing line. Held, that while the descriptions are awkwardly
expressed they are clear enough not to require the aid of
parol evidence to explain further than to identify the
points called for as corners. The judgment should have been
for the defendant. Reversed, with instructions to enter a
judgment in conformity herewith. York, et al. v. Hogg.... 704
33. Contract of Sale-Absence of Written Memorial-Parol Evi-
dence-Validity. The consideration of a contract for the
sale of land, though not expressed in the written memorial
sale, may be shown by parol evidence. Shade Stacy, et al.
v. Garrett Feltner, et al.
34. Same-Title in Children-Sale by Father-Validity.-Where
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