October 5, 2012

M. P. Norcum v. Sarah Shivil, Rockcastle, 1870

M. P. Norcum v. Sarah Shivil.

COURT OF APPEALS OF KENTUCKY

4 Ky. Op. 220; 1870 Ky. LEXIS 312

June 1, 1870, Decided

PRIOR HISTORY:   [**1]  APPEAL FROM ROCKCASTLE CIRCUIT COURT.

DISPOSITION: Judgment reversed and cause remanded.

COUNSEL: Carter, for appellant.

JUDGES: Judge Hardin.

OPINION BY: Hardin 

OPINION

 [*220]  Opinion of the Court by Judge Hardin:

This suit involved the title to a small parcel of ground in the town of Mt. Vernon, claimed by the appellee, Sarah Shivil, as part of lot No. 14, conveyed to her by James C. Jones and wife by a deed, dated November 26, 1866.

The defendant, Norcum, who claimed lot No. 15 under a title adverse to that of the plaintiff, denied that the title deed of Jones and others, under whom the plaintiff claimed, embraced the ground  [*221]  in dispute, and relied on an adverse possession of the ground for over 20 years. The court rendered a judgment for the plaintiff, and Norcum has appealed.

There seems to have been some difficulty in ascertaining the precise location of the lots of the town as originally laid out, but we think the conclusion is authorized from the evidence, that the ground in contest is part of the original boundary of lot No. 14, but it appears from the testimony, Hawk, a remote vendor of lot No. 14, under whom the plaintiff's title is derived, who purchased from W. H. Kirttz in 1854,  [**2]  that the supposed line to which he purchased and subsequently sold, did not include the ground in dispute, and the weight of the evidence is that for more than fifteen years or even 20 years, before the institution of this suit, Norcum and those under whom he claimed and who claimed to own and occupy lot No. 15, were in the peaceable adverse possession of the ground in controversy as part of lot No. 15 up to the line mentioned by Hawks, it being the site of an old fence, recognized as the line by Hawks and others.

We are of opinion therefore, that the judgment is erroneous.

Wherefore the judgment is reversed and the cause remanded for a judgment dismissing the action.

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