#### Cress et al v. Conley.

(Decided May 3, 1911.)

Appeal from Knott Circuit Court.

Lands — Oral Division of, by Father, Not Binding on Children — Action to Recover Land' — Evidence—An oral division of land by the father was not binding upon his children. They could only hold their interest by taking .possession and residing upon it for a sufficient length' of time. In an action to recover land the judgment awarding plaintiff title will not be sanctioned where the evidence does not authorize it.

H. T. BAILEY for appellant.

J. M. BAILEY and W. W. WILLIAM'S for appellee.

Opinion of the Court by

Judge Nunn

Reversing.

In 1861 David Conley patented 200 acres of land, and in tbe same year be conveyed It in a b’ody to bis seven children, naming them, jointly. It appears that after this conveyance was executed and recorded, he divided the land into seven parts and assigned a part to each of his children. There was no written evidence of this division, but most of tbe children took possession of their respective parts, and some of them still reside upon their parts. It appears that appellee purchased from Polly Conley, now the widow of Hicks, her part, which she had never taken possession of. *A.*L. Conley says, however, that he took possession of it, but tbe testimony shows that he never occupied it. Appellant Cress married one of David Conley’s daughters and has resided for twelve or-fourteen years on a piece of land adjoining the land in controversy, his house being near to it. In 1891, David Conley, the old gentleman, conveyed this land †0 appellant Cress for the stated consideration of twentyvfive bushels of corn per jmar so long as David Conley lived. Appellant used and cultivated the land and erected a grist mill on it. Appellee sued for the land -'-laiming it under his purchase from Polly Hicks. He claimed to have a title bond from Mrs. Hicks but never filed any, and his deed was obtained during the progress of this section. Appellant claimed the land under his purchase from David Conley but also had* a deed to it from John Conley from whom David Conley *442said he purchased it, and he had never made David Conley a deed. Appellant says that David Conley claimed that this land was not included within the boundary of the 200 acre patent. The testimony of appellee and four or five of his brothers and sisters shows that the land in controversy is that part of the 200 acre patent set apart by David Conley to his daughter Polly Hicks in the division referred to. Appellant and his witness, John Conley tend to show by their testimony that it was not the part so set aside, but even if it were, their un-contradicted testimony shows a state of facts which make it inequitable to allow appellee to recover it. It appears without contradiction that John Conley claimed to be the owner of and in possession of a piece of land about one-half mile farther up the creek and on the head of Rock Pork Creek. A litigation arose between him and appellee with reference to that land; and ap-pellee claimed in that action and proved he was the owner of it by reason of his purchase from Polly Hicks of her interest in her father’s land. There is no claim in the record that Polly Hicks was assigned two pieces of land in the division referred to, and appellee recovered that piece of land as shown by a copy of the judgment filed in this record. It is further shown in this case without contradiction, that appellant was in- the actual possession of the piece of land in controversy which is one-half mile or more below the piece of land that was in controversy in that action, during all the time that litigation was in existence. Neither appellee nor his witnesses attempt to explain this matter in any manner. Their testimony amounts only to the positive statement that the land in controversy was set apart to Polly Hicks, and they appear to have a preponderance of the testimony to that effect, but it would be Wrong to allow appellee to recover two shares of his father’s land upon one purchase from Polly Hicks. This might have been explained to the satisfaction of the court, but it was not.

The oral division made by the father was not binding ; the children could only hold their interest, as before stated, by taking possession and residing upon it for a sufficient length of time. See Wooten v. Murrell, et al., 134 Ky., 40; 119 S. W., 191; O’Dell v. Little, 82 Ky., 146. Under these authorities and fact, we cannot sanction the judgment of the lower court. It is, therefore, reversed.