Opinion
Decided December 15, 1925.
Appeal from Perry Circuit Court.
EVERSOLE TURNER for appellant.
WOOTTON, SMITH WOOTON and HARRY EVERSOLE for appellee.
Reversing.
Alleging that he was the owner and in possession of a certain described tract of land, and that Wash Daniel and Adelia Daniel had entered thereon and cut certain timber therefrom, and that their codefendant, Buckhorn Coal Lumber Company, had purchased said timber from Wash and Adelia Paniel with full knowledge of the fact that the timber and land from which it was cut were the property of plaintiff, and that the Daniels were insolvent, Elijah Bolin brought this action to recover the timber or the value thereof, and to be adjudged the owner of the land. Wash and Adelia Daniel filed an answer denying that they had cut or sold any timber from the land mentioned in plaintiff's petition and alleged that they cut timber from a certain tract of land thereinafter described which belonged to them. Later, the Daniels filed an amended answer and made it a cross-petition against their codefendant, Buckhorn Coal Lumber Company, asking damages against both Elijah Bolin and the Buckhorn Coal Lumber Company for failure to take up and pay for the timber cut. Most of the pleadings having been lost, an order was entered controverting of record all the affirmative allegations in each of the pleadings. At the conclusion of the evidence for plaintiff the court directed a verdict in favor of the defendants on the ground that plaintiff had failed to show title of record.
It appears from plaintiff's proof that the timber was cut from a small tract of land to which he had acquired title by conveyance from Delilah Burns, who in turn acquired title from her father, Henry Gilbert, by deed dated December 12, 1905. In the answer the Daniels pleaded that the timber was cut from a certain described tract of land which plaintiff proved was acquired by Adelia Paniel, formerly Adelia Gilbert, from her, father, Henry Gilbert, by deed dated December 12, 1908. There was also evidence that this deed covered the disputed strip. It is therefore insisted that plaintiff proved title to a common source and it was not necessary to prove title from the Commonwealth. On the other hand, it is argued that plaintiff merely proved that he and the Daniels derived title through a common grantor and not through a common source. It is true that the terms, "common grantor" and "common source of title" do not always mean the same thing. For instance, proof that both plaintiff and defendant acquired title through a common grantor is not sufficient to dispense with proof of title from the Commonwealth, where the tracts are separate and distinct and the common grantor's title was derived from separate sources. Jennings v. Marston, 121 Va. 79, 92 S.E. 821. But, where each of the parties claims that the disputed strip is covered by his deed, proof of title to a common grantor is all that is required. In such case the question of record title turns on the priority of the conveyances and the proper location of the lands described therein. And, it appearing that the deed from Henry Gilbert to Delilah Burns, through which plaintiff acquired title, was made prior to the deed which he executed to Adelia Gilbert, through which defendants claimed title, and there being evidence to show that the disputed strip was covered by plaintiff's deed, it can not be doubted that there was sufficient evidence of title in plaintiff to require the submission of the case to the jury.
The contention that the deed to plaintiff was void on the ground of champerty can not be sustained, as the mere cutting of timber from the land was not adverse possession within the meaning of the statute. Varney v. Orinoco Mining Co., 201 Ky. 571, 257 S.W. 1016.
But the point is made that the peremptory as to the Buckhorn Coal Lumber Company was proper because there was no evidence tending to show that it purchased with knowledge of the fact that plaintiff owned the timber and that the Daniels were insolvent. The evidence shows very clearly that the Buckhorn Coal Lumber Company had purchased and agreed to take up and pay for the timber. Whether or not the evidence was sufficient to impose liability for the timber already purchased and paid for, we need not inquire. It appears that no settlement had been made for at least a portion of the timber at the time the company became a party to the action. The suit itself was sufficient notice of plaintiff's claim of title to the timber and the land from which it was cut to prevent its being in innocent purchaser of any timber that it paid for after that time.
On the whole, we conclude that the evidence was sufficient to take the case to the jury as against both the Daniels and the Buckhorn Coal Lumber Company not only on the question of title, but also on the question of damages.
Judgment reversed and cause remanded for a new trial consistent with this opinion.