Applegate v. Lexington & Carter Company Mining Company

The suit was in the nature of an action of ejectment to recover possession of a tract of land formerly in Mason county, but now in Greenup, Carter, and Boyd counties, in Kentucky. The plaintiffs in error were the plaintiffs in the circuit court. They alleged in their petition that they were the lineal heirs of Carey L. Clark, who died seized of a tract of 8,334 acres, part of a tract of 18,000 acres granted by patent from the commonwealth of Virginia, dated April 21, 1792, to Charles Fleming, from whom their ancestor, Carey L. Clark, derived title by a regular chain of conveyances; that the plaintiffs were the owners and entitled to the possession of the land sued for; and that the defendants had unlawfully entered upon and unlawfully withheld possession of the same. The defendants, by their answers, denied these allegations, and averred that they were seized of the premises by paramount title. The answers were traversed by the plaintiffs' reply.

There was a jury trial. The plaintiffs, to sustain the issue on their part, offered in evidence the following documents as links in their chain of title: (1) A copy, duly certified, from the land-office of the state of Kentucky, of the patent from the state of Virginiato Charles Fleming, for the tract of land of which the land in controversy was originally a part. (2) A copy of the will of Charles Fleming, devising a moiety of said tract of land to William Fleming, John Bernard, Jr., and Richard Bernard, as trustees. (3) A copy of a deed from Samuel Sackett and wife to Joseph Conkling and others, dated August 29, 1795, for the particular land in controversy in this case, together with certain other tracts that had been patented by the state of Virginia to Charles Fleming. (4) A copy of a mortgage from Joseph Conkling and others, the grantees above named, to Samuel Sackett, the grantor above named, conveying the same lands as above, and dated August 29, 1795. (5) A copy of a deed from William Fleming and the Bernards, trustees as above under the will of Charles Fleming, to John Bryan, conveying to Bryan the lands devised to them by the will of Fleming, and dated December 31, 1796. (6) The original of the deed last named. (7) A copy of a deed from John Bryan and wife to Samuel Sackett, dated January 28, 1797, conveying the same land conveyed to Bryan by deed last above named. (8) The original of the deed last above named. (9) The original of a deed from Charles Fleming, dated August 8, 1784, to John and William Bryan, conveying to them 13,300 acres of the land that had been patented to said Charles Fleming, and being part of the 18,000 acre tract, of which tract the land in controversy is also a part. (10) A certified copy from the Mason county circuit court of the record in the case of Carey L. Clark v. Joseph Conkling and others, in which Clark, as the assignee of the above-mentioned mortgage of Joseph Conkling and others to Samuel Sackett, brought suit to foreclose the same.

The court admitted in evidence the first four of the documents above mentioned. All the others were rejected, namely, the original and a copy of the deed from William Fleming and the Bernards to John Bryan, the original and the copy of the deed from Bryan to Sackett, the original of the deed from Charles Fleming to John and William Bryan, and the copy of the record from the Mason county circuit court in the case of Clark v. Conkling and others.

The court having excluded these documents, the plaintiffs were unable to trace title to themselves for the premises in controversy. Thereupon the jury, under the instruction of the court, returned a verdict for the defendants. upon which the court rendered judgment, and the plaintiffs sued out this writ of error.

Mr. David W. Armstrong for plaintiffs in error.

[Argument of Counsel from pages 258-260 intentionally omitted]

WOODS, J.