MARAMAN et al. v. TROUTMAN.

This case involved two tracts of land. The first was owned by C. F. Troutman. It had earlier been sold by Wesley Phelps to George Weathers. Following his death, the Weathers heirs first mortgaged the tract to the Troutman Bros, and then later separately James Weathers and Sidney Weathers sold their half interest in the tract to Troutman Bros. In a later move, the brothers divided up their several tracts of land, and C. F. Troutman received this tract.

The second tract had been owned by the Kentucky Tile and Brick Works who sold it to George W. Simmons. Later Simmons sold it the the Maraman brothers.

It was a conflict over who owned a part of these tracts that appeared to overlap that led to this court case.

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Bullitt County Circuit Court Order Book 5, Page 46, December Term 1900.

C. F. Troutman, plaintiff vs Maraman Bros, defendants; equity.

This cause having been submitted and the court being sufficiently advised, it is adjudged by the court that plaintiff is and was on the 19th day of April 1900, and for some time prior thereto entitled to and in possession of a tract of land in Bullitt County, Kentucky containing about one and one-half acres, lying near the town of Shepherdsville, Kentucky facing the turnpike and adjoining lands of defendant and particularly that portion of it, a strip about 85 feet in length on the west side of Shepherdsville Turnpike and running parallel therewith, and about 20 feet in width; and that defendants be enjoined and restrained from digging holes in said land or any portion thereof, or from asserting any claim to said land or any portion thereof; and it is further adjudged that plaintiff recover of defendants the sum of $40 with interest from December 19th 1900 until paid, and his costs herein expended for which he may have execution.

To all of which defendants except and pray an appeal to the Court of Appeals which is granted.

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Action by C. F. Troutman against Maraman Bros. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Ben Chapeze and Chapeze & Halstead, for appellants. Chas. Carroll, for appellee.

SETTLE, J. This action was instituted in the Bullitt cireuit court, and, though styled a suit in equity, it is in fact more in the nature of an action of trespass to try title. The lot in controversy is 85 feet in length, and about 20 ft width. Appellee owns 1½ acres of ground, which he claims embraces the strip in controversy. About 1893 the 1½ acres were purchased by Troutman Bros. from the estate of George Withers, and they recelved a deed thereto from his heirs. Later Troutman Bros. sold and conveyed the lot to appellee, C. F. Troutman. George Withers bought the lot of Wesley Phelps, and, according to the proof, was in actual possession of it as far back as 1883, and he and his heirs seem to have held the actual and adverse possession of same from that time continuously down to the time of the sale and conveyance of it to the Troutmans. It also appears that the Troutmans took possession of the lot when they purchased it. and have had the possession ever since. When they bought the lot, it was inclosed by a fence, which stood at the time of the institution of this suit in practically the same condition as when they bought the lot. They always claimed to the fence which inclosed the ground in controversy.

The answer of appellants contains a traverse of the petition, a claim of title and possession in themselves, and a plea of the statute of champerty.

In April, 1902, appellants entered upon the land in controversy, dug post holes thereon, set posts, and erected a fence, by which they attempted to inclose the strip in controversy.

In doing this work they obstructed any entrance into appellee's lot, except by going to the rear and tearing down the fence. Appellants' contention is that the strip in controversy is a part of a lot purchased by them of George Simmons, for which they received of him a deed that was acknowledged by the grantor April 2, 1900. In this deed it is recited as to the land in controversy, "It is further agreed that any part of the west side of said lot that may be inclosed or used by any person or persons is accepted by the grantees in statu quo, and in this manner the grantees hereby convey same." It would seem, therefore, that Simmons did not regard his title to the land in controversy good, and the expressions in the deed mentioned would seem to indicate that Simmons and appellants then knew that some person or persons other than Simmons held the possession of the land in dispute. Simmons' possession of the ground described in his deed to appellants, exclusive of this strip, was as old as, or older than, the possession of appellee and the Witherses. There is some testimony from Simmons and one or two others to the effect that in a conversation with the widow of Withers, some years after his death, he (Simmons) made some remark to her about her use of the ground in controversy, which he then claimed, and she likewise claimed, and that he told her that she might have the use of the disputed strip as long as she lived, to which she replied, "All right." Even if this be true, it could not affect the title of her children, nor of appellee, their vendee, for the old woman only owned a homestead or dower in the lot. Her children were the true owners, subject to her dower or homestead. We find from the evidence that appellee's possession of the ground in controversy, and that of those under whom he claims it, goes back to 1883,-a period of nearly 20 years, and that possession seems to have been actual, continuous, and adverse to appellants and all others. It may also be said that appellants' possession goes back through themselves and their vendors even a greater length of time than the possession shown by appellee, but they do not seem to have had actual possession of the ground in dispute until about the date of their deed from Simmons, at which time they forcibly, or at any rate without appellee's consent, took possession of it.

It is evident that the chancellor gave the parties to this action every liberty that could have been claimed in taking proof. The witnesses are numerous, and are doubtless known to the chancellor. With all the lights before him, he came to the conclusion that appellee was entitled to the possession of the ground in controversy, and to $40 in damages for the trespass committed by appellants. An examination of the record has given us no cause or ground for disturbing his judgment, and it is therefore affirmed.

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Bullitt County Circuit Court Order Book 5, Pages 402-403, March Term 1903.

C. F. Troutman, plaintiff vs Maraman Bros., defendants.

Came plaintiff and filed the mandate of the Court of Appeals herein which is in words and figures as follows.

Commonwealth of Kentucky, The Court of Appeals, February 5, 1903. Maraman Bros., Appellant against C. F. Troutman, Appellee; Appeal from a judgment of the Bullitt Circuit Court.

The Court being sufficiently advised it seems to them there is no error in the judgment herein.

It is therefore ordered that said judgment be affirmed, and that the Appellee recover of the Appellant 10% damages on the amount of the judgment herein superseded which is ordered to be certified to said court. A copy. Attest S. J. Shackleford, C.C.A. Issued March 18, 1903.

Then came plaintiff and moved the court to render judgment in his behalf for $4.00, being 10% damages on amount of judgment superseded; and the Court being sufficiently advised, it is adjudged by the Court that the plaintiff recover of defendants H. L. Maraman and W. J. Maraman individually and Maraman Bros. the sum of $4.00 with interest from March 23rd 1903 for which he may have execution.

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