Asher v. Uhl

OPINION BY M. 0. SAUELEY, SPECIAL JUDGE -Affirill-mg. Tliis is the second appeal of this cause. On the first appeal (64 S. W., 498) the present appellees held the position of appellants. The opinion was rendered on the 20th day of September, 1901. Only a brief refer — 120 — ence to it and the record on which it is based will he necessary to an understanding of the questions involved in this appeal. On the 5th day of September, 1894, the present appellee, Edward Uhl, filed in the Eranldin Circuit Court a petition in equity against the register of the land office, the present appellants, A. J. Asher and others, exhibiting his title to a large tract of land lying in Clay county by virtue of a patent to John H. Cheever, issued in 1872. He complained that A. J. Asher and others, who were acting for him only, had caused to be made surveys of several distinct parcels of land lying within the boundary of the Cheever patent, claiming that such parcels were vacant land, and that they were taking the preliminary steps to have the certificates of Survey carried into grant. He prayed an injunction against the register, and that he be adjudged the owner of the lands embraced in said certificates of survey. The defendant A. J. Asher and some of those wh'o were associated with him in the attempt to appropriate these lands filed their joint answer on the 28th day of January, 1895. ' Characteristically, this answer was but a traverse. Defendants accepted the issue tendered by plaintiff that the lands attempted to be appropriated by them were not vacant, and gave emphasis to this denial by affirmatively alleging that they were vacant and unappropriated. A motion made by plaintiff Uhl to strike the affirmative words from the answer, presumably on the ground that the issue was complete without them, was overruled by the court,- and this ruling imposed on plaintiff the necessity of a reply in traverse. The significant bearing of this fact on a question involved in the present appeal will be noted in the sequel of this opinion. Addition — 121 — ally, the defendants denied that the Cheever patent covered any of the lands embraced in any of the certificates of survey, denied the correctness of the alleged boundary of said patent, and denied plaintiff’s averment of its beginning comer. In a word, the traverse was complete. There was no fact pleaded in bar by way of confession and avoidance. On the issues made, voluminous evidence was taken. After elaborate and what must have been expensive preparation, the circuit court, by its judgment of April 27, 1899, dismissed the petition, except as to an inconsiderable part of the land, the title to which plaintiff had otherwise acquired, and plaintiff appealed. On the 20th of September, 3901, this court rendered an opinion reversing the judgment of the circuit court, holding that the lands Asher w'as; endeavoring to appropriate are parts of the lands embraced within the Cheever patent. The cause was remanded for a conformable judgment. It is proper to observe that on the trial of the chief issue — that is, whether the boundary of the Cheever patent embraced the several tracts surveyed by Asher — the ascertainment of the locus of the beginning comer of said patent became a. capital point of inquiry. This point definitely ascertained, the further solution of the question became unvexed. This court, in its opinion on the former appeal, declared in accordance with Uhl’s contention that the initial corner is “at the intersection of the Clay, Harlan, and Bell county lines at the marked hickory tree in Foundation G-ap., in Kentucky Bidge. ” On the return of the cause to the Franklin Circuit Court, the defendants tendered and offered to file, on the 26th of April, 1902, a pleading styled by them “Amended and Supplemental Answer and — 122 — Counterclaim,” and with this pleading tendered and offered to file the separate affidavits 'of A. J. Asher and other persons. On the same day the plaintiff tendered and moved the court to enter of record a draft of a judgment prepared in conformity to the appellate court’s opinion. Objections being made to both motions, the court took time. Subsequently the plaintiff Uhl, in support of his objections to defendant’s motion, and to controvert the facto alleged in the affidavits, filed the separate affidavits, of himself and other persons. At final hearing on the 5th day of September, 1902, the circuit court overruled defendant’s motion to file the amended pleading and the supporting affidavits, and granted plaintiff’s motion to enter the judgment tendered. From these judgments appeal was granted, and on that appeal the cause is now here. The pleading offered by defendant is unique. Styled “Amended and Supplemental Answer and Counterclaim,” it contains much which is not properly matter of averment in a pleading, being distinctively evidential. It also contains a prayer that the judgment entered pursuant to the mandate of the Court of Appeals be set aside, for a new trial of the issues involved, and for a judgment for the lands in controversy. This pleading was verified on the 4th day of January, 1902, and tendered for filing on the 26th of April following. Yet the judgment it seeks to vacate was not entered until the 5th day of September following. It is not possible to understand how a new trial could have been granted when a previous trial had not been had. There is a like impossibility to comprehend how a judgment might be vacated which had not been formally entered or even orally pro — 123 — nounced. It is not a supplemental pleading, because there is no averment of a fact alleged to have occurred after the filing of a former answer. Civil Code Prac. section 135. Nevertheless, it seems, to have been regarded and treated by the parties and by the trial court as both an amended answer and a motion or petition for a new trial. Regarded solely as a motion for a new trial, it would seem that the filing of it was a matter of right, if so be that a previous trial had been held. Regarded solely as an amended answer, the offer to file invoked the judicial discretion of the court. It is most obvious that an amendment tendered during the progress of a trial, or offered at the conclusion of the evidence to conform to it, is essentially different from a motion for a new trial after verdict or judgment. - The former presupposes the pendency of a trial; the latter, that the trial is ended. There must have been a former trial and judg- ' ment before there can be a vacation of judgment and a new trial. The .blending of incongruous procedures begets a confusion of practice, and should not be established as a precedent. A misconception of terms often leads to a misconception of rights. It may, however, be said that when a case has progressed on definite issues to final judgment, an appeal taken from that judgment, those issues adjudicated by the Appellate Court, and the ease remanded with mandate to enter a conformable judgment, on an offer by either party to file an amended pleading containing charges or denials different from or in conflict with the issues on which the cause was originally tried, it would be a necessary requirement of the party so offering that he show to the court by accompanying affidavits why the matter contained in — 124 — the tendered amendment had been delayed until that time. In this view of the case, while the affidavits offered by the opposing parties may not be regarded as evidence on a motion for a new trial — no judgment 3laving previously been entered — we think they may be considered as they bear on the offer of defendants to tile an amended answer. This amendment, in substance, charges two things: First. That a patent issued by the Commonwealth of Virginia in the year 1788 to one Benjamin Say for 90,000 acres of land situate in the then county of Lincoln, and now' the counties of Bell, Clay, and Knox, and that this patent embraces within its exterior lines all the lands in controversy, and that the Cheever patent of 1872, which embraces the land in controversy, is in itself covered and embraced by the senior entry, survey, and patent of Say; the contention based on these facts being that the Cheever patent is void on the ground that the land embraced in its boundary was not vacant at the time the entry and certification of survey were carried into greater grant. Additionally, it is alleged by A. J. Asher, and sworn to by him, that on or about the 15th day of November, 190.1, he discovered for the first time the existence of the Say patent, and could not by reasonable diligence have discovered it sooner; that, he had no. knowledge or information as to the location of the lands embraced in the Say patent prior to the reversal of the circuit court’s judgment of 1899; and with greater particularity he alleges: “That said Cheever patent, as located by the opinion of the Court of Appeals, embraces the lands in controversy, and that it is also covered and embraced by the senior entry, survey, and patent of said Benj. Say for said .90,000 acres- That he has learned these facts since — 125 — the decision and judgment of this conrt, by the loca tion of the Cheever patent, by the opinion of the Court of Appeals and the facts herein set out, and he could not with reasonable diligence, or with ordinary expense or time, or otherwise, except by the opinion of the said Court of Appeals, determine the location of the Cheever patent. ’ ’ By this statement in greater detail, Asher reveals the sources, and. approximately the time, of his first information on two points: (1) That the Cheever patent embraces the lands in controversy (2) That the Say patent embraces the Cheever patent, so far as the lands in controversy are concerned. Beside, he says he learned these two facts' from the opinion of this court, and the facts herein set out. There are no facts set out which might lead to any part of this information, except his statement that in 1894 (prior to the institution of this suit) he employed Calvin Hurst, a surveyor, to make a survey and determine whether the Cheever patent could be located. The information thus obtained is in no señse newly discovered, and, as a separate fact, is wholly unavailing on the offer to file an amendment. The only remaining source of information is the opinion of this court. Inasmuch as the opinion is absolutely silent on the subject of the Say patent, neither the grant itself nor the name of the grantee appearing on it, nor any reference, direct or remote, to it, it is most diffic ult to perceive how defendant Asher procured his firs! information that the Say patent covered the Cheever patent from this court’s opinion of September, 1901. His further statement that he had no information of the existence of the Say patent prior to the circuit court’s judgment of 1899 must be credited, if at all, against much weight of evidence. Beyond all — 126 — reasonable doubt, the opposing proof shows that he is incorrect. It is probably true that defendant could not have foreseen that this court would adjudge that the beginning corner of the Cheever patent is at the intersection of the Clay, Harlan, and Bell county lines at a marked hickory in Foundátion G-ap, in Kentucky Ridge¡, nor the sequence from this that the Cheever patent, covers the land in controvesy. But this was his own mistake or inference. Before the circuit court judgment of 1899 he was in possession of record evidence of every fact relating to that particular point in controversy. These facts induced the appellate court not to locate the beginning corner, but to adjudge as a matter of fact where it had been located by the survey precedent to the Cheever patent. It was not the judgment that located the beginning corner; that was fixed and established by the surveyor. The locus of it was only ascertained by the court, and ascertained by facts which. Asher himself had in part exhibited to the court. He had full opportunity to ascertain the same thing himself. His failure to do so was a failure of judgment, and not a. want of opportunity. For this reason, he cannot be placed in a better attitude for reopening this controvesy than any other disappointed litigant who makes erroneous deductions from existing facts. The provisions of the Code (section 134) on amendments are liberal, and so designed. Much is left to the discretion of the court “in furtherance of justice,” but it is a judicial discretion to be exercised within expressed limitations. In furtherance of justice, the court may on proper terms permit an amendment (1) by adding or striking a name, (2) by correcting a mistake in name or otherwise; (3) by inserting — 127 — other allegations material to the case; (4) if the amendment do not materially change the claim or defense, by conforming the pleading to facts proven. These, in substance, are the limitations which the Code itself places on the court’s right to permit an amendment. Great latitude of interpretation of the full meaning of this section has been upheld, but no ease is cited which goes to the length of authorizing, after trial, judgment, appeal, and remanding, an amendment which tenders an issue directly opposed to the issues on which'the case had been tried. In his petition paintiff Uhl alleged that the lands the defendants were surveying for the purpose of appropriation were not vacant. Defendants denied this, and, as heretofore stated, went beyond the requirement of exact pleading by making an affirmative allegation that they were vacant. Defendants resisted the motion of plaintiff to strike this affirmation, and procured a ruling of the court Which forced a reply. The issues were complete without affirmation, which was but surplusage. But the persistence of defendants in bringing it to the notice of the court in duplicate form illustrates their conception of it both as an issue and a prime factor in determining the cause. If plaintiff had failed to make this averment, his petition would have been demurrable. It seems from the record that defendants eagerly accepted the issue. The case: was tried on it, with the results herein stated. At this late stage, the defendants, having failed after full hearing and ample preparation, now offer to withdraw their former denial, and to substitute the plea that the lands which they themselves were undertaking to appropriate to their own use were not vacant, and therefore not proper objects of appro — 128 — priation. The tendency of this defense being to defeat the claims of both parties, it does not impress, one that it is in “furtherance of justice” to the defendants to allow them at this untimely juncture to interpose a plea “which not enriches them, and makes the plaintiff poor indeed! ” 2. The second new defense set forth, in the amended answer is a plea of adverse possession of the lands in controversy. The defendant A. J. Asher makes this plea for himself only. He describes, by metes and bounds and courses and distances a tract of land which may or may not be the lands, in whole or in part, in controversy herein. The defendant does not commit himself to any express statement as to the identity. By argument or deduction it may be inferred that the boundary he describes embraces the several parcels he endeavored to patent, and of this boundary he claims to have had the adverse possession the statutory period anterior to the bringing of the suit. It is needless to discuss whether the facts pleaded in this behalf show an adverse possession in law. Defendant himself admits that he knew every fact which would sustain this plea before he abandoned his rights as an adverse holder and endeavored to acquire title by entry, survey, and patent. That he abandoned such rights under the advice of counsel, whether correctly or mistakenly given, cannot legally affect the fact, which remains that he knew, when he filed his original answer, all that he set up on this subject in the amended answer. For this reason alone, ommitting others-, it should not have been allowed. The judgment of the circuit court is affirmed. Baekbe, and Caktrill, JJ., not sitting.