
    Osborn v. Osborn et al.
    (Decided Dec. 9, 1932.)
    JOHN L. DIXON and W. H. LEWIS for appellant.
    J. 'M. MUNCY for appellees.
   Opinion op the Court by

Chief Justice Dietzman

■ — Reversing.

Alleging that they were the owners of a described tract of land, the appellees, who were plaintiffs below, brought this suit against the appellant for damages on account of an alleged trespass on his part on the land in question and cutting timber therefrom. By answer and counterclaim, the defendant, now the appellant, denied the title of the plaintiffs and alleged title in himself. An amended answer alleged that at the time the plaintiffs procured the patent under which they claimed the land in controversy, there was then outstanding an older patent issued to one John S. Suazade covering-said land, by reason of which the plaintiffs’ patent was void and so their title failed. A reply made up the issues. Tbe case being submitted to tbe jury on tbe evidence adduced by tbe respective parties, a verdict was found in favor of tbe plaintiffs, and from tbe judgment entered on that verdict, tbis appeal is prosecuted.

We are of opinion that tbe appellant is correct in bis contention that be was entitled to a peremptory instruction, at least at tbe close of tbe introduction of testimony by both parties. Tbe case was inadequately prepared and tried, but sufficient appears to show that tbe plaintiffs are claiming’ under a patent issued to them in 1902, at wbicb time there was outstanding an older patent, No. 47832, issued on tbe 5tb day of July, 1872, covering tbe land in controversy. Tbis being true, tbe patent under wbicb plaintiffs claim was and is void. Kentucky Statutes, sec. 4704. As tbe plaintiffs bad to recover on tbe strength of their own title by tracing it back to tbe commonwealth or by establishing it by adverse possession, and since tbe record discloses that they bad no adequate proof of title by adverse possession and that tbe title wbicb they traced back to tbe commonwealth was void, tbe court should have peremptorily instructed tbe jury to find for tbe appellant on appellees’ claim of title.

Judgment reversed for a new trial consistent with tbis opinion.  