Affirming.
Appellees brought this action on January 27, 1928, against appellant to recover a tract of 100 acres of land, *Page 381 which was included in an old patent for a large boundary under which they claimed. Appellant answered setting up title in himself, and alleging fifteen years adverse possession. The case was heard before a jury and at the conclusion of the evidence on both sides, the court peremptorily instructed the jury to find for appellees. The defendant appeals.
In the year 1896, the ancestor of appellees, under whom they claimed, filed an action in equity against William Solomon, praying that his title to the 100 acres now in controversy be quieted, and a recovery of the land. Solomon filed answer in October, 1896, denying the plaintiffs' title, and pleading title in him. The case came on for trial, and a written agreement was filed that the plaintiffs had title to the land from the commonwealth under the patent filed and subsequent deeds. On the hearing of the case there was a judgment for the plaintiffs. An appeal was taken to this court and on April 17, 1901, the judgment of the circuit court was affirmed. See Helton v. Strubbe, 62 S.W. 12, 22 Ky. Law Rep. 1919. Solomon had bought out another who had settled on the land without right in 1872, and in 1886 he had taken out a patent for the 100 acres in controversy and had lived on the land from the time he first settled there; but he had no title of any kind until he got his patent in 1886, which was about ten years before the suit was brought. He was an old man, and Strubbe did not disposses him under the judgment after it was affirmed by the Court of Appeals, and he remained in the log house which he had built until he died about the year 1906. His widow remained in that house several years, and then, as the house was getting in bad condition, moved across the road to another house. She lived until 1916. After her death, Mary Vanover, one of the daughters of William Solomon, bought out the other heirs, and she, in 1926, conveyed to Ruben Green the title of William Solomon under his patent obtained in 1886. Green married a daughter of Mary Vanover, and entered under this deed from his mother-in-law. He insists that the statute of limitation began running when William Solomon took possession of the land and got his patent in 1886, and that more than fifteen years having expired before the bringing of this action in 1928, the plaintiffs are barred by limitation. On the other hand, appellees insist that the former judgment affirmed by this court in 1901, is *Page 382 conclusive upon William Solomon and all claiming under him, and that their possession since that judgment has not been adverse. The circuit court adopted this view and so gave the peremptory instruction.
In Perry v. Eagle Coal Co.,
This is only an application of the familiar rule that where the original holding is amicable the possession will be presumed to have continued as it commenced, in the absence of proof to the contrary. Bates v. Adams,
To the same effect, see Bates v. Adams,
A different rule was not laid down in Martin v. Hall,
Green bought the title of William Solomon from his daughter Mary Vanover, who had bought out his other children. They all stand in his shoes. His holding was not adverse to Strubbe in the absence of notice thereof brought home to Strubbe. There was no evidence of any facts to put Strubbe on notice of an adverse holding until after Green bought about the year 1926, and the circuit court properly, under the evidence, instructed the jury to find for the plaintiffs.
Appellant complains that the judgment of the McCreary circuit court was not filed, but only a copy of the pleadings in the old case and the opinion and mandate of this court; but the whole record was made a part of the pleading and there was no motion that the court require the plaintiffs to file the exhibit made part of his pleading. The plaintiffs assumed that the judgment of this court was the final judgment in the case. The transcript of that record is in the clerk's office of this court and to have recopied it all would simply have added to the cost of the case, and much of it would have been immaterial, as much of it related to other parties and other land than that in controversy here. While the proper practice would have been to file a complete transcript *Page 384 of that record, the failure to do so, was not prejudicial to the substantial rights of appellant, as the case was presented here.
Judgment affirmed.