Musick v. Horn

[640] Opinion op the Court by William Rogers Clay, Commissioner Affirming. Appellant, Sarah'Musick, brought this action against Edward Horn to quiet her title to a 400-acre tract of land situated in Floyd County, Kentucky. This tract or survey was patented in the name of Patrick Vaughn on the 4th day of April, 1837. Lying within the boundary of the 400-acre survey was another survey of 50 acres, which was patented in the name of Patrick Vaughn on May 19th, 1828. On September 4th, 1852, appellee Horn entered and surveyed a tract of 50 acres of land which laps over on the Patrick Vaughn survey of 400 acres to the extent of 20 acres. This is the land in controversy. Appellee denied the ownership and possession of appellant, and pleaded title in himself, both by patent and adverse possession. He also interposed a plea of champerty with reference to two deeds through which appellant acquired title. Upon final hearing appellant’s petition was dismissed, and from the judgment so entered this appeal is prosecuted. The law is well settled, that in'actions brought pursuant to section 11,'of the Kentucky Statutes, plaintiff must prove both the legal title and actual possession in order to recover. Whipple v. Erick, 93 Ky., 121; Smith v. Lewis, 21 Ky. Law Rep., 1400. In proof of her chain of title, appellant introduced the patent issued to Patrick Vaughn by the Commonwealth of Kentucky in the year 1837; also deeds from George B. Martin and Alexander Lackey to A. G. Musick, and from A. G. Musick to appellant. While the deed from George B. Martin and Alexander Lackey to A. G. Musick recites that the grantors received the land from James M. Lackey, no deed from him is produced, nor does James M. Lackey con- ■ nect his title with that of Patrick Vaughn. The missing link might have been supplied by the introduction of a deed or will, or by evidence that the land was inherited. The record,, however, is silent upon this point; so appellant failed to prove a record title. While there is some evidence tending to show that appellant and those through whom she claims to have had tenants upon the 400-acre survey, it does not appear when their possession began, or that they were ever in possession of the interference. Having failed to prove title, either by record or adverse possession, it follows that appel [641] lant’s petition was properly dismissed. That being true, it is unnecessary to consider the question of appellee’s adverse possession. Judgment affirmed.