
    Petrey, et al. v. Adkins, et al.
    (Decided October 12, 1923.)
    Appeal from Whitley Circuit Court.
    1. Boundaries — Deed Construed as to Boundaries. — A call in a deed, “thence crossing the road east with the old line to the corner in the gap of the ridge between Mud and Cain creek,” held to include the property involved, though the boundary, as to such call, would include several lines, and not one straight line.
    2. Pleading — Duty to Render Judgment for Defendants, Where Pleas Not Controverted. — Under Civil Code of Practice, section 126, providing that material allegations must be taken as true unless traversed, except as provided, in an action to recover a tract of land, where pleas of adverse possession and champerty were not controverted, it was the duty of the court to render judgments for defendants, or to direct a verdict in their favor if the trial was by a jury.
    3. Appeal and Error — Denying Trial by Jury Immaterial. — Where under the pleadings it was the duty of the court to direct a verdict for defendants or render judgment for them, it was immaterial that the court erred in overruling plaintiffs’ motion for a jury trial
    STEPHENS & STEELY for appellants.
    H. C. GILLIS for appellees.
   Opinion of the Court by

Judge Thomas

Affirming.

The subject matter of this litigation is the ownership and the right to the possession of a tract of land in "Whitley county containing some forty or fifty acres. The petition filed in the Whitley circuit court by appellants and plaintiffs below, Mary L. Carr Petrey and others, against appellees and defendants below, John Adkins and others, alleged ownership of the land by plaintiffs and that defendants were wrongfully in the possession of it and committing trespasses thereon by cutting and marketing timber therefrom. The answer denied plaintiffs.’ title and alleged title in the defendants and contained a plea of title by adverse possession and the defense of champerty, neither of which were controverted 'by reply or by an order of court. The proof was taken by depositions either by agreement of parties or by their acquiescence. After it was completed on both ¡sides and the depositions filed, plaintiffs- entered motion to transfer the -case to the ordinary docket for trial by -a jury, which the court overruled and submitted the -case as an equity one, and after hearing the proof dismissed the petition, which was- followed by plaintiffs prosecuting this appeal.

The case is greatly -simplified because of a stipulation entered into between the parties and filed in the cause in which it is agreed that plaintiffs, and defendants ‘ ‘ claimed title to the land in controversy from a common source, to-wit, from 'said David Adkins, Jr.” A chain in the title of defendants is a deed executed by David Adkins, Jr., to Enoch Bird (through whom defendants claim) -on April 11,1864, and it is stipulated that defendants hold a connected chain of title from Bird to themselves. So that, if the description contained in the Bird deed includes the land in controversy, the judgment was proper. There is no dispute between the parties as- to the location of the calls and boundaries- of that deed until the tenth call is reached. It reads: “Thence -crossing the road east with the old line to the comer in the- gap of the ridge between Mud and Cain creek. ” The remaining two calls are: “Thence north to Adkins’ old corner, a white oak; thence to the beginning.” The “old line,” referred to in the tenth call, was -a line in the exterior boundary of a prior patent issued to David Adkins, Sr., who was the father of David Adkins, Jr., at the terminus of which plaintiffs claim there is a “gap of the ridge” and that it was. the intention of the- parties to run the next or eleventh line in the deed from that gap- to- the white -oak mentioned in the eleventh call and which was also a call in the prior patent, and if that should be the- -correct interpretation as to the eleventh line in the deed, then the land in controversy is not included therein and plaintiffs should recover.

On the other hand defendants contend that the -designation, “old line,” in the tenth call of the deed, was not intended to refer only to the particular straight line between calls nine-and ten -of the prior patent (the- same as in the deed), but that it was intended for that call to run around with the exterior boundaries, of the prior patent to -another proven gap of the ridge between Mud and Cain -creeks -and from that gap north to the white o-ak comer, and from thence to the beginning, which, if true, would include the land in the Bird- -deed and entitle defendants to recover. It is conceded by plaintiffs that if the Bird deed bad used the plural,‘ ‘lines, ’ ’ in its tenth call, instead of the singular, “line,” then defendants’ interpretation would be the -correct one.

In construing the. deed we are not disposed to- give to the call in controversy therein such a narrow and technical application, -or to measure the rights of the- parties by such technical rule, since it may be conceded that there is room for the position taken by each -of the parties litigant. Looking alone to the language of the tenth call, it is consistent therewith to conclude that the grantor in the Bird deed referred therein to only one line of the exterior boundary -of the prior patent; while it is likewise consistent to conclude that he referred to 'and intended that the exterior boundaries, -of the prior patent should be followed around to the “gap in the ridge” as- located by -defendants, and that he designated that boundary from the tenth call to the gap in the ridge -as the “old line,” although it consisted of more than one, which latter conclusion was sustained by us in the case of Bell v. Powers, 121 S. W. (Ky.) 991, and which involved the -construction of language -similar to that employed in the deed under consideration.

The question, therefore, becomes one of intention, which must be determined by the proven facts- and circumstances in the case, -and we think they sustain the defendants ’ interpretation of the deed. There is proof that there is a swag, and what might be -considered a gap in the ridge, at the point contended for by plaintiffs and also proof of an equally well defined gap at the point contended for by defendants, and the 'lines of the old patent run around to that point from call ten in the Bird deed. Prom that gap to the white oak lacks only one-degree of being -due north, which corresponds to the eleventh call in the Bird de-ed, whereas to adopt plaintiffs’ construction the call from the gap in the ridge, as-located by them, would follow a course “ north 62 degrees, east,” thus radically departing from the eleventh- call in the same deed. Moreover, it is proven without contradiction that David Adkins, Jr., through whom plaintiffs, claim, construed the deed he executed to Bird as including the land in controversy, ¡and that he expressly recognized the title of the latter thereto. There- are -other-proven facts and circumstances, more or less fortifying-the contention of the defendants as to the proper interpretation of the Bird deed, but which we do not deem it necessary to refer to. So that, on the merits -of the case,, we have no hesitancy in concluding that the coiirt correctly interpreted the Bird deed -so as to .sustain defendants’-title to the land. But, were we -of a different opinion, the judgment should be affirmed for reasons stated below.

As we have seen, neither the plea of adverse possesision nor the one of -champerty was controverted, and not-being so it was the duty of the court to render judgment in favor of -defendants -or to direct a verdict in their favor if the trial had been by a jury. Civil Code, section 126; Hall v. Mineral Development Co., 31 Ky. L. R. 863; Bassett v. Lush, 156 Ky. 490, and Reynolds v. Binion, 177 Ky. 189. Other cases from this court could be -cited as-sustaining the -same rule of practice, -but we deem it unnecessary to encumber this ¡opinion with them, since the rule is thoroughly established and universally followed, unless the issue be one which under express provisions -of' the law must be proven -although not controverted. It itrue that in the Reynolds case and in the case of Kentina-Puckett Corporation v. Simpson, 196 Ky. 246, it was held that the defense -of champerty might be taken advantage of under a general denial 'and without being expressly pleaded, but it was* further .held in the Reynolds case that it was competent to expressly plead it, and if done it should be controverted in some legal manner, and if not so done it would constitute -a ¡complete defense-. That be-in.g true, tlie objection that the court erred in overruling plaintiffs’ motion for a jury trial becomes of no avail, .since if the court had sustained the motion and tried the case before a jury, a directed verdict in favor of defendants necessarily would have followed.

Finding no error in the judgment,'it is affirmed.  