
    Coombs Land Company v. Gross, et al.
    (Decided November 19, 1926.)
    Appeal from Harlan Circuit Court.
    1. Boundaries. — ¡Natural objects should prevail over courses and distances in determining boundaries.
    2. Boundaries — Boundary Held to Run from Corner of Certain Leased' Property to Hackberry Tree, as Described in Deed, though Inaccurate Distance was Given.- — Boundary held to run from eorner of certain leased property to hackberry tree, as- described in deed though length of such line was 430 feet, more or less, instead, of 200 feet, more or less, as given in deed.
    3. Champerty and Maintenance. — Deed attempting to include land, already conveyed to another by grantor and in possession of such other held champertous and void.
    4. Champerty and Maintenance. — Champerty need not be expressly pleaded.
    5. Ejectment. — In ejectment, evidence that plaintiff allowed defendant to pay paving assessment on lot in dispute held competent.
    6. Appeal and Error — Alleged ¡Error in Allowing Witness to ¡Leave-Courtroom Without Being Excused Held -Not Available on Appeal.. —Alleged error in allowing witness to leave court, without being excused, depriving plaintiff of further cross-examination, held not available on appeal, where it was not embodied in bill of exceptions, and did not appear in record.
    7. Trial. — Refusal of instruction on ¡question covered by another instruction held not error.
    S. Trial — Instructions as .to Descriptions in Deed Held -Objectionable as Singling Out Evidence. — Instruction to consider all description» in deed in locating fence, including statement in deed that lot was opposite intersection of certain street and road, held objectionable as giving -undue prominence to certain portions of evidence.
    HALL, LEE & SNYDER for appellant.
    G. J. JARVIS and J. ¡G. FORESTER for appellees.
   Opinion op the Court by

Drury, Commissioner—

Affirming.

The appellant, whom, we shall call the plaintiff, sued the appellees, whom we shall call the defendants, in eject-.m,ent, and sought to -recover a lot situated on the south side of what is now Clover street in section D of Ivy Hill Addition to Harlan, Kentucky. Both plaintiff and defendants claim to have derived title to this property through Josephine A. Coombs, who formerly owned it and other property adjoining. On June 10, 1912, Mrs. Coombs and her husband conveyed to Nathan Osborne, by a deed which is now of record in deed book 38- at page 429 in the office of the clerk of the Harlan county court, the following property:

“A small parcel or strip of land, lying ion Clover fork near the town of Harlan, Kentucky, being on the Clover fork county road, and south thereof, opposite or nearly opposite the point where the extension of Mound street will intersect the Clover fork road:
“Beginning at a point at the southerly edge-of Clover fork road at the northwest corner -of property now under lease from Josephine A. Coombs to Garfield Lyttlé; thence in a southerly direction with the western line of said lease (marked by a fence) to the river; thence west with the river to a haokberry tree at the mouth of a small drain, a distance of 200 feet more or less; thence northwardly with the drain to the road; thence eastwardly with the southerly edge of the county road to the beginning. ’ ’

This description is not as definite as it might have • been made, and out of the vagueness of it, has this controversy arisen. Immediately after the execution of this ' deed, Osborne took possession of, built a house upon,. fenced, began to cultivate, and to exercise other acts of ownership over a tract of land which he claimed to have acquired under this conveyance. After1 -that, on November 24, 1914, Mrs. Coombs conveyed to one Fox-a large - boundary of land, excepting therefrom, however, the land conveyed to Osborne, and on May 22,1915, Fox conveyed this land to plaintiff. The north line of the property conveyed to Osborne is fixed and definite, for this land is . hounded on t'he north by what .was1, former ly, the iClov'er-i fork road, which, is now Clover street. The southern boundary of this land is Clover fork of the Cumberland river, and it is fixed. The east and west lines are not so definitely located, and in this litigation it is the east line that is the storm center of the controversy.

To us it appears that the evidence fixes the location of this east line beyond question. The source of all this controversy is the length of the second line, which is given as 200 feet, more or less, whereas that line, judging from'the property that Osborn took possession of, should, have been about 430 feet, more or less. At least, that is the impression we gather from the record. In the case of Rush v. Cornett, 169 Ky. 714, 185 S. W. 88, we said that natural object's should prevail over the courses and. distances. In the case of Gilbert, et al. v. Parrott, 168 Ky. 599, 182 S. W. 859, we said the same. Applying that rule to this case, it follows that by this conveyance Osborne acquired title to all the property bounded on the-north by Clover street, on the east by the Garfield Lyttlelease, on the south by Clover fork of Cumberland river, .and on the west by a line running from a hackberry tree-at the mouth of a small drain in a northwardly direction to Clover street. The proof shows that Osborne took possession of that, and was in possession of it when Mrs. Coombs conveyed the remainder of her land therabout to Pox, and when Pox conveyed to the plaintiff. In that state of affairs, any attempt to include in these conveyances any land that was in possession of Osborne waschampertous, and the court should have instructed the jury peremptorily to'find for the defendants; as the defendants’ land is a'portion of the land conveyed to Osborne, it is included within this boundary and is a part, of the land of which Osborne took possession. Champerty need not be expressly pleaded. Kentina-Puckett Corporation v. Simpson, 196 Ky. 246, 244 S. W. 699. The demurrer to the defendants’ answer was properly overruled. Plaintiff has pointed out no competent evidence which it was not allowed to introduce, and the evidence introduced by the defendants of which it is complaining was; competent. That evidence was that when the city of Harlan caused Clover street to be paved and improved, the plaintiff stood by, said nothing, and allowed Gross to pay the assessment made against this lot for the improvement of the street in front of it.

Its fourth ground for a reversal is that the witness Nathan Osborne was permitted to leave the court without being excused, and the plaintiff, who' desired to further cross-examine this witness, was thus deprived of an opportunity of so doing. We have often written that errors occurring upon the trial of a case that do not appear in the record, must be embodied in the bill of exceptions. We have often stated this rule, -and in the case of Hopkins v. Com., 210 Ky. 378, 275 S. W. 881, we gave the reason for its adoption, and as there is nothing in the bill of exceptions to show that this occurred, that alleged error is not available to the plaintiff.

The plaintiff offered four instructions. The court g’ave the first one, and refused to give the other three, and it is asking us to reverse this judgment because of that. The instruction B offered by the plaintiff would have been a splendid instruction to have given in this case. It is almost identical with an instruction prepared by this court in Paducah Cooperage Co. v. Paducah Veneer & Lumber Co., 135 Ky. 53, 121 S. W. 986; but after the court gave instruction Í, offered by the plaintiff, there was no occasion to give other and further instructions upon the .same question. The same applied.to instruction C, which was merely the converse of instruction B. The plaintiff ■offered this further instruction:

“The court further instructs the jury.in arriving at the location of the fence mentioned in the deed you should take into consideration all other descriptions in said deed fixing the location of the lot, including the statement therein that said lot is opposite or nearly opposite the intersection of Mound street with the Clover fork road. ’ ’

This instruction is objectionable because it singles -out and gives undue prominence to certain portions of the evidence, and such instructions we have frequently condemned. 'See oases cited under sections 36 and 661, Hobson’s Instructions to Juries.

The sixth, seventh, eighth and ninth grounds upon which it relies for a reversal all amount to the same thing. That is, that the verdict is against the weight, of the evidence, not sustained by the evidence, result of passion and prejudice, awarded in disregard of the evidence, and sustained by no competent evidence. In aswer to all -of which we will say'that the jury could not, under the evidence, have reached any conclusion other than the one' they did, and moreover, the court should, as we have stated, have directed the jury to return a verdict for the-defendant, because plaintiff is claiming under a champertous deed.

The judgment is affirmed.  