Mosley v. Morgan

Opinion op the Court by William Rogers Clay, Commissioner- Affirming. Appellee, Lee Morgan, instituted this action against Elilin Mosley, W. S. Mosley and Swann-Day Lumber Company, to recover the value of certain timber wbicb it is alleged tlie defendants cnt and removed from a tract of land of wbicb appellee Morgan was tbe owner and in possession. To tbe petition Elibn Mosley filed an answer denying the allegations of tbe petition and pleading :that tbe timber was cnt from a tract of two hundred acres of land of wbicb be was tbe owner by adverse possession for more than fifteen years. Tbe affirmative allegations of the answer were denied by reply. During tbe progress of tbe action the appellee, H. M. Hensley, came in by answer and cross-petition and charged that be was tbe owner of all tbe oak trees standing and growing npon a certain tract of land (describing the same) and that a portion of tbe timber in controversy was cnt from this land; that bis title to said timber [558] was superior to that of, either Lee Morgan or Elihu Mosley. 'He then asked judgment against Lee Morgan and Elihu Mosley, for the- sum of thirty dollars. Other pleadings were filed, completing the issues. A jury trial was had, which resulted in a verdict -and judgment in favor of appellee Morgan for eight dollars and a verdict and judgment in favor of appellee Hensley for six dollars: Prom this judgment Elihu Mosley appeals. It appears that appellee, Lee Morgan, -derived -title from the Zach Morgan fifty-acre grant No.. 67761; by deeds from Zachariah Morgan to Minerva Morgan, and from John H. Morgan and Minerva Morgan, his wife, to appellee, Lee Morgan. It is insisted by counsel for appellant that a copy of the Zach. M’o-rgan fifty acre grant is not in the record. At the time appellant’s brief was filed this was true; since that time, however, a copy of the grant in question has been filed by consent of counsel. That being true, it follows that Lee Morgan has shown a good title of record -to that part of the timber for which he recovered judgment. Appellee H. M. Hensley, in making out his chain of title, introduced, first, a copy of the William Mattingly grant, No. 11707, surveyed September 14, 1847. He then followed this up with a chain of deeds to the Kentucky Coal Lands Company. Then follows a contract in writing, signed by Kentucky Coal Lands Company, per A. K. Cook, agent, by which the Kentucky Coal Lands Company sold to appellee Hensley all the merchantable timber situated on the company’s lands on Short Creek and Muncy Creek in Leslie county, and giving to appellee seven years from the first day of January, 1908, within which to remove the timber. It is now insisted that the writing in question was in effect a conveyance -óf real estate, because the standing timber was not sold in contemplation of immediate severance from the soil, and that the contract, in order to be valid and vest title thereto in appellee should have been executed and ■acknowledged by the president and secretary of the corporation. Before the court, however, permitted the .writing in question to be introduced, it heard evidence on the authority of A. K. Cook, as agent, to execute the contract. This evidence shows that the Kentucky Coal Lands Company had'been for a number of years engaged in buying and selling lands and the timber thereon; that for five or six years prior to the execution of the- contract in question, A. K. Cook, as agent for the Ken559 lucky Coal Lands Company, .had been selling standing trees upon the lands of■ said company, and.it had never repudiated any of the sales so made.' The rule is well settled, that, where a corporation, by uniform course of dealing with the public, has held the agent out to the public as possessing power- to act for it in a certain capacity, and the agent makes a contract pursuant to his apparent authority, the corporation will not be permitted to repudiate the contract. Uniform dealing is equivalent to actual authority, in the absence of actual knowledge on the part of the one dealing with the agent of any limitation on his express authority. (Hurst et al. v. American Association, Limited, 105 Ky., 793.) There may be cases, of course, where the agent of a corporation, in the absence of express authority, would have no power to convey real estate belonging to the corporation. Here, however, the corporation is engaged in the business of buying and selling lands and the timber thereon. Having for a number of years intrusted this business to an agent, and permitted him to sell timber upon its lands, it will not be heard to say that such agent had no authority to convey the standing timber. That being true, appellant cannot complain of want of authority in Cook to execute the contract in question. We, therefore, conclude that appellee Hensley showed title to the trees for the value of which he obtained judgment. Appellant did not show a record title to the land from which the trees in controversy were cut. He claims under a deed executed February 6th, 1882, but not recorded until January 23, 1908. His defense, therefore, was based upon adverse possession. In each case the question of adverse possession was submitted to the jury by instructions which are not complained of, and we cannot say that the finding of the jury is flagrantly against the evidence. About two years after the suit was brought, appellant filed an amended answer in which he charged that the Zach. Morgan fifty-acre grant was void because it was covered and embraced by the John S. Sauzade forty-thousand acre survey which was made ten years prior to the Morgan grant. To the amended answer -a demurrer was sustained. Appellant afterwards amended this answer and alleged that the Sauzade survey had been carried into grants, but he was unable to say which grant covered the land in controvérsy. A motion to [560] makei more specific'was sustained, but no attempt was made; to comply therewith. Subsequently the Sauzade -survey-.was offered-in. evidence'and excluded by the trial court. ¡Even-without a-special.plea to'that effect, appellant, on the trial,-might under the-general, issue have defended by showing that the- land had been previously surveyed or patented. If,'when he offered Sauzade-ssurvey, - he had accompanied the offer with the avowal that that - survey actually covered appellee Morgaños land and that he could establish that fact"' by competent, evidence, there might be some reason for reversing the case. Without such -an avowal, we are unable to say that the court erred in- refusing' to permit the survey to be introduced. Perceiving .no error in the record prejudicial to the substantial rights of appellant, the judgment is affirmed..