#### Price et al. v. Lightfoot Land & Mortgage Co.

April 29, 1941.

P. H. Vincent for appellants.

G. A. Lycan and E. E. Adams for appellee.

Opinion op the Court by

Judge Cammack

— Affirm-

ing.

The Lightfoot Land *&*Mortgage Company instituted this ejectment proceeding against Sterling Price and the other appellants, all of whom are children of Cleve Price. The Land Company alleged that it owned a 3,000-acre tract of land in Lawrence County and that the appellants were unlawfully holding a portion thereof. The appellants filed an answer and counter-claim in which they denied that the Land Company was the owner of the tract of land described in its petition and they set up their claim to a portion (several hundred *693acres) of the tract. Both parties offered considerable proof in support of their claims.

The trial court gave the following instruction:

> *“If*the jury believe from the evidence that Cleve Price lived on and occupied the land in dispute as the tenant of the Lightfoot Land & Mortgage Company or those under whom it claims, and that his heirs after him have done so, and that thus the plaintiff, Lightfoot Land & Mortgage Company, and those under whom it claims have been in the actual adverse possession of the land in dispute continuously for a period of as long as fifteen (15) years, claiming said lands as their own through said tenants, if such they were, then the Lightfoot Land & Mortgage Company and those under whom it claims became vested with title to said land, the jury should find for the plaintiff; but if the jury should believe from the evidence that Cleve Price had the actual adverse possession of the land in dispute, claiming it as his own continuously and uninterruptedly for as long as fifteen (15) years, claiming the same openly and adversely to all others, or if the jury believe from the evidence that his heirs after him did so, then the jury should find for the defendants.”

The jury found for the Land Company. The appellants offered no objection to the aforementioned instruction and took no exception thereto. Those of the appellants who filed motion and grounds for a new trial made no objection therein to the instruction. Under the circumstances the appellants can not now be heard to complain of it. Girtman’s Adm’r v. Akins, 275 Ky. 2, 120 S. W. (2d) 660; Perkins-Bowling Coal Corp. v. Maryland Casualty Co., 246 Ky. 493, 55 S. W. (2d) 378.

This leaves only the question as to whether or not the verdict is the result of passion and prejudice on the part of the jury toward the appellants. Having reached the conclusion that it was not, and that there is no basis for the contention that a peremptory instruction should have been given in favor of the appellants, it is unnecessary for us to consider the Land Company’s motion to dismiss the appeal as to certain of the appellants because of agreements entered into by them after the entry of the judgment below.

*694We will briefly summarize tbe basis of tbe claims of the parties. Tbe appellants contend tbat tbeir father, Cleve Price, entered upon tbe land claimed by them under a parol contract of gift from H. S. Southard, in 1892, and tbat be remained thereon and claimed it as bis own until bis death in 1923, and tbat since tbat time they have held tbe land and claimed it as tbeir own. However, one of tbe appellants’ witnesses testified tbat a man by tbe name of Huffaker gave tbe land to Cleve Price in 1904. Tbe appellees advanced proof to tbe effect tbat Huffaker bad no interest in the land at that time and tbat it was owned by tbe Crown Lumber Company. Tbe appellants also offered proof tbat tbeir father had erected buildings upon tbe land, fenced it and paid no rent to tbe Company or its predecessors. To offset proof tbat they bad done certain things and made certain statements in regard to looking after the Company’s land they said tbat tbe land thus referred to was land other than tbe tract claimed by them. Tbe Company showed paper title to tbe whole of tbe 3,000-acre tract, and that it bad paid taxes on it for a number of years. It offered proof to tbe effect tbat Cleve Price and tbe appellants occupied tbe land as tenants; tbat tbe Crown Lumber Company cut timber from a good part of tbe land, including some of tbat claimed by tbe Prices in 1904, without question being raised as to title at tbat time; tbat core drills for tests for coal were run in 1913 without question of title being raised; tbat question of title was not raised when lessees began oil and gas operations in 1930 on 1,000 acres of tbe 3,000-acre tract, including a part at least of tbe land claimed by tbe Prices; tbat residents of tbe vicinity said that they bad never beard tbe Prices make claim to the land; and tbat no such claim was made until shortly before tbe commencement of this action. There was clearly an issue made as to tbe claims of tbe parties to tbe land in dispute. We have noted tbat no objection was raised by tbe appellants to tbe instruction given by tbe trial judge.

Complaint as to passion and prejudice on tbe part of tbe jury is directed to influences said to have been exerted by tbe parties operating tbe 1,000-acre oil and gas lease and a resident of Lawrence County, who seems to have been connected with, or contemplated becoming connected with, these lessees. These parties appear to *695be interested in purchasing all of the 3,000-acre tract from the Company. The Company is located in Louisville and the oil and gas lessees are residents of Johnson County. We find no basis whatever' for the complaint as to passion and prejudice on the part of the jury toward the appellants.

Wherefore, the judgment is affirmed.