DESCRIPTION. Where the commissioner's deed to the purchaser at the decretal sale refers to the records of the case, which show that it was the intention of the parties to the suit to sell all land owned by deceased at his death, a general clause immediately following a specific description of the named tract, and stating that the boundary is to include all lands therein, will prevail over the particular description, especially where the conduct of the parties since the sale conclusively shows such intention, and none of them even so much as intimated that they owned that part of the tract in dispute until more than nine years after the sale, and then only after the parcel involved was by the expenditure of large sums proven to be valuable. Appeal from Circuit Court, Estill County. Suit to quiet title by Winfield S. Raydure against Morgan McKinney and others. Judgment for plaintiff, and defendants appeal. Affirmed. Pendleton & Bush, of Winchester, George W. Gourley, of Beattyville, J. P. Hobson & Son, of Frankfort, and Clarence Miller, of Irvine, for appellants Joel McKinney heirs. Kelly Kash, of Irvine, for appellants Thomas McKinney heirs. Ed. C. O'Rear, of Frankfort, F. A. Baldwin, of Bowling Green, Ohio, and Hugh Riddell, of Irvine, for appellee. been constructed many years ago, and where a furnace for the manufacture of pig iron had been operated up until some years since the Civil War. Since all the parties claim title through Joel McKinney, we are not furnished with the title papers to the Cottage Furnace tract from the commonwealth; but it appears from the record that when that tract was originally patented, it was so done by describing the circle, and then in a general way excluding therefrom all lands preViously patented, which consisted of a number of tracts, the largest of which was about 1,000 acres. The different owners, including Joel McKinney, from time to time sold small portions of the land, and when the latter died about the year 1900 he owned all of the land within the circular boundary of the Cottage Furnace tract, with the exception of those portions which had been originally excluded from that boundary, and the portion which had been sold by the different owners since the issual of the original patent. Joel McKinney left surviving him many heirs, some near and others remote, and on six brought suit in the Estill circuit court September 25, 1901, all of his heirs except against those six, for the purpose of selling the lands of Joel McKinney, which were inherited by the parties to that suit for division among themselves according to their respective shares. Some of the defendants were infants and others nonresidents, but they were properly brought before the court, and the case was practiced strictly according to the provisions of law governing such cases, and there is no complaint but that the proceedings in that case throughout were and are legal and valid. In addition to the Cottage Furnace tract the ancestor, Joel McKinney, owned other lands in other counties of this commonwealth, and they were also described and sought to be sold, and were sold in the proceedings mentioned. Some of the heirs disputed the indivisibility of the land, and contended that it could be divided in kind, and upon this issue proof was taken, and the court adjudged that the land was indivisible, and ordered it sold according to the prayer of the petition. That judgment, in describing and referring to the Cottage Fur nace tract, said: "He [Joel McKinney] was also the owner and in the possession at the time of his death of the following described tracts of land in Estill and Powell county, but lying mostly in Estill. * Said lands are known as the Cottage Furnace tracts, and is bounded as follows, to * * wit." THOMAS, J. The question involved on this appeal is the title to a tract of land containing 172 acres lying in Estill county, Ky. It arises in this way: Prior to his death Joel McKinney was the owner of a Then follows a description of the circular large body of land in that county, a portion Cottage Furnace tract, with a general excluof which extended into Powell county, which sion of prior patents and the portions sold was known, and had been for more than a therefrom before the death of Joel McKinhalf century, as the Cottage Furnace tract. ney. The master commissioner advertised That body of land was a complete circle, the Cottage Furnace tract for sale according with a diameter of six miles, and in the cen- to that judgment, but on the day set for the ter of which was a furnace stack which had sale, because of some objections by some of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes parties to this action, having been selected and duly sworn by R. W. Smith, master commissioner of the Estill circuit court, to appraise the tract of land ordered to be sold by judgment herein of the Estill circuit court, at the Decemvalue said land at $4,000 for whole tract. Witber term, 1906, containing for whole tract, do the heirs, the sale was not made, and at a praisement of the Cottage Furnace tract I succeeding term of the court an amended at the last sale is in these words: petition was filed and a motion made for "We, the undersigned, disinterested housekeepthe appointment of a surveyor to make sur-ers of Estill county, Ky., and not of kin to the vey of the lands, after taking out the exclusions from the Cottage Furnace tract, which Joel McKinney owned at the time of his This motion was susdeath in that tract. tained and a surveyor appointed, but he neither undertook nor in any manner per-ness our hands this 11th day of February, 1907. formed his duties. The administrator and J. M. W. Covey. Isom Ballard." the attorney representing the plaintiffs, however, did select a surveyor, who made a survey and a plat, both of which were filed in the case, and they contained a particular description of a body of land within the circular boundary of the Cottage Furnace tract, said to contain about 3,500 acres, but from which seven tracts of land were excluded, with a more or less particular description, but not showing the number of acres in either exclusion. The Cottage Furnace tract was again ordered to be sold under the same general terms as above quoted, but with the description of that tract made to conform to the report of the surveyor. It was sold under this second judgment, but the administrator of Joel McKinney filed exceptions to the sale, the second one of which The deed of the master commissioner to the purchaser, Mapel, followed the description of the judgment, including the modifying clause, and he took possession of the land. Within a comparatively short time thereafter, not later than the year 1909, he cut all of the timber from the 172 acres involved in this suit, and during that time, or directly afterward, he put some tenants upon it. Prior to that time he had obtained a surveyor to survey all of the land within the boundaries of the Cottage Furnace tract which were included in the judgment as well as in his deed from the master commissioner, and in that survey was one made of the tract now in question. It lies outside of the boundary made by the surveyor selected by plaintiffs and their attorneys, but who, as we have seen, was not appointed by the court to make the survey, and there is between the boundary so described by that surveyor and the tract in question a tract of land containing about 1,000 acres, and which is one of the exclusions from the original description of the Cottage Furnace tract. The 172-acre tract of land is situated on The pur Another exception was that the guardians Cow creek, and is between a half mile and a for the infants had not executed the neces-mile from the boundary made by the sursary bonds before the rendition of the judg- veyor referred to, but within the circle boundment, and upon the latter ground the excep- ing the Cottage Furnace tract. tions were sustained and the sale set aside, chaser, Mapel, continued to exercise acts of but to remove the objections stated in the ownership over the 172-acre tract in question second exception filed supra, the court sup- without objection from any of the McKinney plemented the description theretofore con- heirs until about the middle of the year 1916, tained in the judgment by adding thereto or for a period of a little more than nine these words, "And this boundary is to in- years. Some of the McKinney heirs, and in clude all of the Cottage Furnace lands be- fact quite a number of them, lived in that longing to Joel McKinney's heirs," which vicinity, and none of them ever listed for followed immediately the description of the taxation or paid any taxes on the land in Cottage Furnace tract contained in the question, or any other land which they claim judgment under which the first sale was to have inherited from their ancestor, Joel made. Under. the judgment as thus modi- McKinney. On the contrary, Mapel, the fied the commissioner again offered the Cot- purchaser, listed the land in the Cottage tage Furnace lands belonging to the heirs Furnace tract in a general way without a of Joel McKinney for sale, and on Febru- specific description of each tract, and acary 11, 1907, they were sold to S. M. Mapel cording to the record paid the taxes on what for the sum of $4,950, for which he executed he supposed was all of that tract, to which he his bonds as directed by the judgment, and obtained title under the master commissionwhich were afterwards collected and the er's deed. In the meantime and in the year proceeds distributed among the heirs ac- 1913, Mapel executed a lease upon the 172cording to their respective shares. Mapel acre tract in question to one Dulin, whereby was the purchaser at the first sale, which the lessee for an accepted consideration was was had under the judgment not containing given oil, gas, and other mineral rights and the above-quoted clause, but which sale was privileges in and to that tract. This lease set aside. His bid at that sale was only $4,- was afterwards sold and transferred to the 190 for the Cottage Furnace tract. The ap- Mapel Oil Company, and was subsequently purchased from that company by the appellee years of age, after which time the land should In the meantime plaintiff and others had purchased the fee to the 172 acres from S. M. Mapel, and on December 14, 1916, he filed this suit against all the heirs of Joel McKinney for the purpose of quieting his title to and leasehold rights in the 172-acre tract in question. He bottomed his right for the relief sought upon the ground that the judgment under which his remote lessor, Mapel, bought the Cottage Furnace tract, and the deed which he received from the commissioner coV ered and included the tract in question, and also upon the fact that he was the owner of the Ice lease. He furthermore insisted that defendants were estopped by their silence to assert title as against him, since he had openly and notoriously expended upon the land in the way of oil development a sum of money exceeding $100,000. He also insisted that defendants' claim, if they had any, was stale, and that they were guilty of such laches as would prevent them from asserting any rights which they might have to the tract in question. At the beginning it will be seen that the first vital question presented is whether the judgment under which the Cottage Furnace tract of land was sold and the commissioners' deed to Mapel executed pursuant thereto in the light of, and with the aid of, longestablished rules for their interpretation and construction, includes the tract in controversy, for if it should be found, with the assistance of such rules, that they did include that tract, we will at once be relieved of considering the other more or less intricate and lengthily discussed questions of champerty, estoppel, and laches. It is of course insisted by counsel for plaintiff that the land in question was included in the description in the judgment under which the Cottage Furnace lands were sold, while counsel for defendants and the heirs of Joel McKinney contend to the contrary. Their contention is based upon the general rule that in the description of lands, whether contained in a judgment or writing inter partes, the particular description will prevail over a general one when there is a conflict between them, and that the specific description in the judgment selling the Cottage Furnace tract as made by the surveyor does not include the land in question, although the clause added to the judgment and before the sale, "and this boundary is to include all the Cottage Furnace lands belonging to Joel McKinney's heirs," being a general description, might include it, still it could not prevail under the rule invoked as against the particular description which does not include the tract in question. In support of their contention counsel for among appellants cite many authorities which are Bain v. Tye, 160 Ky. 412, 169 S. W. 843; Howard v. Cornett, 151 Ky. 125, 151 S. W. 370; Magowan v. Branham, 95 Ky. 581, 26 S. W. 803, 16 Ky. Law Rep. 233; Wilkins v. Norman, 139 N. C. 40, 51 S. E. 797, 111 Am. St. Rep. 767, and notes there Appropriate pleadings made up the issues, but before submission of the cause the heirs of one Thomas McKinney filed their intervening pleading, asserting in themselves title to the tract of land in question upon the the ground that years before the death of Joel McKinney he had executed some kind of writing under which one Richard McKinney was to take charge of and rear Thomas McKinney, an illegitimate child of Joel McKinney, in consideration that Richard McKin- to; Heaton v. Hodges, 14 Me. 66, 30 Am. ney should have for his services the tract of Dec. 731, and notes thereto; and 13 Cyc. in lengthening the list almost without limit, | 1111, 27 Ky. Law Rep. 804]; Hall v. Wright, since we presume that no court and no text- 121 Ky. 16 [87 S. W. 1129, 27 Ky. Law Rep. writer disputes the general rule, which in- 11851; Virginia Iron, Coal & Coke Co. v. Dye, 146 Ky. 519 [142 S. W. 1057]." deed counsel for appellee admit. [1, 2] But a rule of construction applicable to descriptions of land contained in judgments as well as private contracts, of more potency and even controlling the one for which counsel for appellant insist, is that the intention of the parties as gathered from the language of the entire instrument to be construed, in the light of the facts and circumstances surrounding the parties at the time, must prevail. Bain v. Tye, 160 Ky. 408, 169 S. W. 843; Howard v. Cornett, 151 Ky. 125, 151 S. W. 370; 13 Cyc. 626, 631; notes to Wilkins v. Norman, 111 Am. St. Rep. 776, and 8 R. C. L. 1085. And if in the instrument to be construed there is a reference to other records or papers, they may also be looked to for the purpose of ascertaining the intention of the parties. [3] Another rule which the court may invoke in an effort to ascertain the intention of the parties when called upon to construe doubtful language in the description of the property conveyed by a deed is that: "The construction put on a deed by the parties in locating the premises may be resorted to in order to determine their intention when the language of the description renders the location of the land doubtful.' 8 R. C. L. 1075, and cases in the notes. 99 This court in the Bain Case, supra, in laying down the general rules which should govern the court in such cases as this, in arriving at the intention of the parties as the primary object to be attained, said: "The rule for determining what property has been conveyed by a deed is formulated as follows, in 13 Cyc. 626: "The intention of the parties as apparent in a deed should generally control in determining the property conveyed thereby. But if the intent is not apparent from the deed, resort may be had to the general rules of construction. Where the words used in the description in a deed are uncertain or ambiguous, and the parties have by their acts given a practical construction thereto, the construction so put upon the deed by them may be resorted to, to aid in ascertaining their intention. The entire description in a deed should be considered in determining the identity of the land conveyed. Clauses inserted in a deed should be regarded as inserted for a purpose, and should be given a meaning that will aid the description. Every part of a deed ought if possible to take effect and every word to operate.' The court in its opinion then cites the cases of Trimble v. Ward, 14 B. Mon. 8, and Beatty v. Dozier, 34 S. W. 524, 17 Ky. Law Rep. 1275, and then adds: [4] It would serve no useful purpose to make other illustrative quotations from opinions or from textwriters, since there is no exception to the rule as announced in the Bain Case. The trouble with the contention of counsel for appellants as we see it is that he seeks to apply the general rule giving priority to a particular description over a general one, regardless of the intention of the parties to be gathered from the entire instrument, and disregarding the facts and circumstances surrounding the parties at the time, to which, as we have seen, the court may look for the purpose of ascertaining their intention. In cases where there is nothing throwing light upon the intention of the parties, and where it must be gathered solely from the description itself, the particular description should no doubt prevail over a general one. But if, with the application of the rules alluded to, it should be made manifest that the intention of the parties was that the general description should prevail, then it is the duty of the courts when called upon to give a construction to adopt the one carrying with it the intention of the parties. [5] In this case the master commissioner's deed, under which Mapel purchased the land at the decretal sale, refers, as is usual in such deeds, to the record of the case in which the judgment was rendered, and when we look to that we learn that it was the intention of the parties to that suit, and who are the appellants here, to sell all the land that Joel McKinney owned at the time of his death. In the petition asking the sale in that suit it is said, "They [the owners] desire that all of said lands be sold," etc. So solicitous were they to carry out that intention and desire one of the exceptions to the first sale, as we have seen, pointed out the fact that the surveyor's description of the Cottage Furnace lands was not sufficient to include all of the land owned by the heirs in that tract, and it was because of that exception that the sweeping and general inclusive clause was added to the judgment. That clause says that the land intended to be sold was all of the land belonging to the Joel McKinney heirs in the Cottage Furnace tract. The intention of the suit between the heirs of Joel McKinney was to sell and divide the proceeds of all of Joel McKinney's land. In furtherance of this purpose many tracts in "Where the description of the property intended to be conveyed is ambiguous, the identity different counties were described and sold. of such property must be gathered from the in- There could have been no object or purpose tention of the parties, as shown by the instru- in leaving out a comparatively small tract to ment itself and the accompanying circumstanc- be jointly owned by the 20-odd heirs which es, such as those surrounding and connected with the parties and the land at the time. Bowe v. Richmond, 33 Ky. Law Rep. 173, 109 S. W. 359; Clarke v. Northern Coal Co., 33 Ky. Law Rep. 1047, 112 S. W. 629; Tanner v. Ellis, 127 S. W. 995; Crews v. Glasscock, 32 Ky. Law Rep. 913, 107 S. W. 237; Jones v. American Association, 120 Ky. 413 [86 S. W. Joel McKinney left, and who were scattered in different states of the Union. As further proof of such being the intention of the parties, their conduct since the sale conclusively shows it. None of the heirs ever by word, act, or deed even so much as intimated that they owned any land in the Cottage Furnace | fact it is not seriously insisted upon in this tract until more than nine years after the court. It is not shown that Joel McKinney sale, and then only after the small parcel ever executed any writing to Richard McKinhere involved was by the expenditure of a ney. It is true that at least one witness large sum of money proven to be valuable. says that he saw a writing which Richard McKinney held, but it is not claimed that Joel McKinney's name was signed thereto, nor is the witness by any means clear as to the contents of the unsigned writing which he claims to have seen. However, the testimony shows more probable than otherwise that the arrangement between Joel McKinney and Richard McKinney was that the latter should take charge of the illegitimate child, Thomas McKinney, and receive for his services while performing them the use of the 172-acre tract of land in question, thus making the arrangement one of tenancy, and not of sale. There is no evidence of any adverse possession under that arrangement, and this claim made by the heirs of Thomas McKinney is wholly and entirely unsupported. It results, therefore, that the judgment appealed from is correct, and it is affirmed. Much discussion is indulged in by learned counsel for appellants to show that it is incompetent in a case like this to show by parol proof what may have been the secret intention of the parties, but we deem it unnecessary to enter into a discussion of that phase of the case, since no such proof is necessary in order to determine what we conceive to be the indisputable intention of the parties to the McKinney suit, in which the sale was made to Mapel. Neither is it necessary to make reference to or discuss the points argued concerning the Ice lease, and the same is true with reference to the questions of estoppel and laches urged and relied upon by appellee. This leaves for determination the claim presented by the heirs of Thomas McKinney. But little need be said concerning it. In |