
    Johnson v. Johnson.
    (Decided March 16, 1926.)
    Appeal from Floyd Circuit Court.
    1. Quieting Title—Defendant, Averring Facts Necessary to Authorize Court to Quiet His Title, had Burden to Establish Ownership and Possession.—Where defendant averred he was owner of lands described, as well as other facts necessary to authorize court to quiet his title, which were denied, burden was on him to establish his ownership and possession.
    2. Quieting Title—-Defendant, Not Having Filed -Copy of Patent Issued on the Survey, Failed to Establish Claim to Record Title.— Where defendant failed to file as evidence -copy of patent issued on the survey under which he -claimed record title, he failed to establish chain of record title from himself through his predecessors back to the Commonwealth.
    3. Adverse Possession—Where Descriptions of Land Under Deeds were Vague, Boundaries Thereof were Not Within Rule that, by Taking Actual Possession of Part Thereof, Possession was Extended to its Utmost Confines.—Where original survey described land by metes and bounds, and descriptions thereof in deeds, under which defendant claimed, were general, vague, and indefinite, they were not well-defined boundaries within rule whereby one, claiming under color of title to well-defined boundary, by taking actual possession of any part of the boundary, thereby extends possession to its utmost confines.
    4. Adverse Possession—Proof Held Not to Show that Defendant or His Predecessors Ever had Actual Possession of Lands in Dispute. —Where descriptions of boundaries of land were vague and indefinite, and possession of part thereof did not extend possession to Its utmost confines, in absence of testimony that any one ever actually resided on or cultivated the lands, there was failure of proof that defendant or his predecessors ever had -actual possession.
    COMBS & COMBS for appellant.
    B. M. JAMES and JOE HOBSON for appellee.
   Opinion of the Court by

Commissioner Sandidge

Reversing.

This action was instituted by appellant, Martin L. Johnson, who for cause of action alleged that he owned -and was in possession of certain described lands which appellee was wrongfully and unlawfully claiming; and he sought to be adjudged to own the land in question and to have his title quieted of appellee’s claim. Appellee answered, denied appellant’s claim, asserted ownership in himself, and, by way of counterclaim, sought to quiet his title of appellant’s claims. On appellant’s motion his petition was dismissed without prejudice; 'but the action proceeded and the judgment herein was rendered on appellee’s counterclaim, the chancellor concluding that he was entitled to the relief he sought. Hence the appeal.

As the case was tried the burden was. upon appellee to establish his ownership and possession of the land described in his counterclaim. The case does not, as appellee insists, fall within the doctrine announced in Hopkins v. Lane, 207 Ky. 275, 269 S. W. 336, that where there is a mere dispute at to the correct location of the dividing boundary line between two tracts of land and no issue is made as to the respective parties owning the title of their respective lands, it is unnecessary to introduce the record evidence of title. Under the pleadings herein appellee averred that he was the owner of the lands dscribed therein, as well as the other facts necessary to authorize the court to quiet his title, all of which appellant denied. Affirmatively he pleaded that he was the owner of the same lands. In that state of case it was clearly incumbent upon appellee to establish his title by proof in the usual way. He claims the record title of the land described in his petition under the Cornelius Osborne survey of 90 acres. He failed to file herein as evidence a copy of the patent which issued on the Cornelius Osborne survey. Hence he failed to establish a chain of title from himself through his predecessors in title back to the Commonwealth, and his claim to record title fails. He insists, however, that his plea of title by adverse possession was sustained by the proof herein. To that contention we can not agree. The copy of the 'Cornelius Osborne survey found in the record describes that tract of land by metes and bounds. None of the deeds under which appellant claims title contains a description by metes 'and bounds of the land conveyed. On the other hand the descriptions they give are exceedingly general, vague and indefinite in their .terms, and they can not be said to be well defined boundaries within the rule whereby one claiming under color of title to a well defined boundary by taking actual possession of any part of the boundary thereby extends his possession to its utmost confines. It does' not appear from the testimony herein that any one ever had an actual residence upon any part of the land in controversy, or that any of it has ever been 'Cleared or cultivated or inclosed. There is a total failure of proof that appellee and those under whom he claims have ever had actual possession of any of the land described in appellee’s counterclaim. Consequently, appellee wholly failed to sustain the burden of establishing by proof his title and possession of the tract of land which he sought herein to have himself adjudged to own, and consequently the chancellor erroneously awarded him the relief he sought.

The judgment herein is reversed and this cause is remanded with direction that appellee’s counterclaim be dismissed.

Judgment reversed.  