CARUTHERS (KATHY), ET AL. VS. 2008-CA-001212 JOHN B. GOFF LAND COMPANY, INC. , ET AL.

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RENDERED: OCTOBER 23, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001211-MR KATHERINE CARUTHERS; A. B. WALTERS; LAKIE ROBINETTE; MARY LEE CURRY; MYRTLE S. MAYNARD; COLENE SMITH, RECE; JOHN L. ROBINETTE; LINDA JOHNSON; CATHY SMITH; ANN SMITH ROBINETTE; CORENELIA SUE CHAPMAN DAY; WILLA MARIE SIMON; GRACE T. SMITH; CARL B. SMITH; GARLAND ELKINS; PHILLIP D. WALTERS; IDA WILLIAMSON; KATHY CARUTHERS; MARION JOYCE GILLMAN; GLORICE ROBINETTE; ODESSA M. SUTHERLAND; ZENITH ELKINS COFFMAN; CLIFFORD ELKINS; AMY E. HARPRING; DIANE HOLLAND; ERNEST GENE WALTERS; DONALD R. YOUNG; TENNIS R. YOUNG; ISAAC PAUL WALTERS; CHARLOTTE E. WALTERS; JOHN D. WALTERS, JR.; GLADIS STATON, ETTA S. TUNNICLIFF; ERNEST CANADA; BIRDIE SMITH WOLFORD; RAYBON REED; LOIS WEBB; JOYCE SMITH; JOSEPH LEE CHAPMAN; NANCY LOWE; MARGARET ANN HILLER; WINNE CHAPMAN; EDITH LOCKARD; GERALDINE ROBINSON; BRENDA CARROLL HARTSFIELD; HELEN WILLIAMSON; JAMES W. ROBINETTE; PEGGY D. ALBERTS; JANICE COLLINS; W. C. CHAPMAN; JAMES E. CHAPMAN; JACKIE A. CHAPMAN; BARBARA THOMPSON; BRENDA K. CHARLES; BETTY MAY; CLIFFORD CHAPMAN; THOMAS R. SMITH; CONRAD KEITH MILLER; DIXIE M. SIMON; MILDRED ROBINETTE RUTHERFORD; GARY CHAPMAN; MARY E. WOLFE; RUTH A. McDANIEL; DOUGLAS K. CHAPMAN; QUINCY L. FRANCIS; JOSEPHINE FRANCIS; GARLAND BALL WORKMAN; GARETT D. FRANCIS; IRENE COLEMAN; EDDIE D. ELKINS, LORNA GRIFFIN; PHILLIP ELKINS; RUSSELL ELKINS, JR.; AND JOSEPH W. JUSTICE APPELLANTS APPEAL FROM PIKE CIRCUIT COURT -2- v. HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 00-CI-00329 JOHN B. GOFF LAND COMPANY, INC.; AND ALMA LAND COMPANY APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; ACREE AND VANMETER, JUDGES. VANMETER, JUDGE: Kathy Caruthers and numerous heirs of George W. Smith (hereinafter referred to collectively as Appellants) appeal from a Pike Circuit Court judgment addressing ownership rights to a parcel of real property in Pike County. For the following reasons, we affirm. This matter arose from an action to quiet title filed by the John B. Goff Land Company, Inc. and the Alma Land Company (hereinafter referred to collectively as Appellees). Appellees maintain that Appellants own only 50 acres of a 200-acre tract while Appellants claim title to the entire 200 acres. This matter turns on whether an 1881 deed from John B. Goff to George W. Smith conveyed 200 acres or 50 acres. The trial court found the deed was ambiguous and admitted extrinsic evidence to interpret it. Following a bench trial, the court concluded that the deed conveyed only 50 acres. -3- Appellees’ claim to the 200 acres in dispute derives from an 1865 200-acre patent obtained by John B. Goff, ancestor in title to Appellees. At that time, the 200-acre patent overlapped a 50-acre patent acquired by George Bevins in 1851 and later sold to Smith in 1871. In the 1881 deed at issue herein, Goff conveyed to Smith, for whatever reason, property which the court found amounts to 50 acres. Appellants contend that the court erred by admitting extrinsic evidence to interpret the 1881 deed and by failing to recognize the seniority of their title pursuant to KRS1 382.110(1) and the “first in time, first in right” doctrine. We disagree. The law is clear that “[e]xtrinsic evidence cannot be admitted to vary the terms of a written instrument in the absence of an ambiguous deed.” Hoheimer v. Hoheimer, 30 S.W.3d 176, 178 (Ky. 2000) (citing Sword v. Sword, 252 S.W.2d 869 (Ky. 1952)). However, “[w]here the language employed in a deed is uncertain in its meaning, it is proper to consider the nature of the instrument, the situation of the parties executing it, and the objects which they had in view.” Sword, 252 S.W.2d at 870. Here, the court found the 1881 deed between Goff and Smith was ambiguous because the property description did not match the description of the 200 acres in Goff’s 1865 patent. While the court found the 1865 patent was clear and unambiguous, it was unable to ascertain from the language of the 1881 deed 1 Kentucky Revised Statutes. -4- alone whether the parties intended to convey the entire 200-acre tract or just a 50acre parcel of it. To clarify this ambiguity, the court admitted evidence, including the testimony of a licensed land surveyor, that Goff and Smith were experienced land traders who would have reiterated the description of the 200-acre patent in the 1881 deed had they intended to convey the entire tract. The court also admitted evidence of other deeds obtained by Smith for property in the area, each of which described property identically as the preceding deed or patent. In addition, the court admitted evidence of post-1881 documents referring to the 200-acre “Goff tract,” thereby placing the property and acknowledging its existence separate from Smith’s 50-acre parcel. The court concluded that the intent of the parties was to convey 50 acres of the 200-acre tract rather than the entire 200 acres. Given the ambiguity of the 1881 deed, the admission of evidence to clarify the deed was not erroneous. Next, Appellants claim the court erred by failing to recognize the seniority of their title to the 200 acres under KRS 382.110(1), which provides: “All deeds, mortgages, and other instruments required by law to be recorded to be effectual against the purchasers without notice, or creditors, shall be recorded in the county clerk’s office of the county in which the property conveyed, or the greater part thereof, is located.” KRS 382.110 is irrelevant to Appellants’ claim based on the 1881 deed, however, since subsection (7) specifically provides that -5- the statute is inapplicable to “any deed or instrument made or acknowledged before March 20, 1928.” We decline to address the merits of Appellants’ argument under the “first in time, first in right” doctrine since Appellants did not cite the Court to their preservation of the issue as required by CR2 76.12(4)(c), nor did Appellants provide citations to any of the evidence in the record which allegedly supported their argument. See Charash v. Johnson, 43 S.W.3d, 274, 277 (Ky.App. 2001). The judgment of the Pike Circuit Court is affirmed. ALL CONCUR. BRIEFS FOR APPELLANTS: Dwight O. Bailey Flatwoods, Kentucky 2 BRIEF FOR APPELLEE JOHN B. GOFF LAND COMPANY, INC.: James P. Pruitt, Jr. Pikeville, Kentucky Kentucky Rules of Civil Procedure. -6-

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