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 l
‘i.
l
1 TABLE OF CASES - .
l .
Page
‘ Board of Parent Ministry v. Bohon, Extx 285
1 Browning v. Marshall 295
, Damron v. Johnson 350
; Flanary “Charles 355
1 Henderson Telephone & Telegraph Co v. Owensboro Home Tele-
i phone & Telegraph Co. 322
Hines, Director General of Railroads v. Taylor’s Admr. 298
1 Home Insurance Co, v. Chowning 327
Huff: v.. Howard 360
Huff v. Davis, Judge 360
, L. & N. R. Co. v_ Craft 314 '
l Proctor v. L. & N. R. Co. 330
, Shelby v. Shelby 304
Stringer v. Commonwealth 318
Swaner v. Barnett 345
Thurman v, Alvey 341
Vaughan, Secretary of State v. Roberts 364
Wheeler v. Patrick 362
‘ Williams v. Davis Judge 356
' Williams v. Howard 356
4 T .
. t, L
I
..I
4‘
I

 Board of Parent Ministry V. Bohon, Ex’tx. 285
Board of Parent Ministry, at al. v. Bohon, Ex’tx., et a1.
\ (Decided May 13, 1921.)
, Appeal from Mercer Circuit Court.
3’ 1. Religious SocietieskC‘onveyancc of Property——Colony of Shakers.
. —~\Vhere it is shown by the covenants and constitution of a colony
of Shakers that it is independent of all other colonies or branches
" of the society, recognizing the superiority of the parent or mother
I church in spiritual matters only, and where during a long period
of years the local branch has bought and sold property without
the consent or objection on the part oi the parent society, and
in the deeds to the local colony it only is named as grantee, and
i where owing to the age and infirmities of [the members of the
society their property has been allowed to deteriorate, and they
have found it necessary from time to time to dispose of a large
part of their holdings for their maintenance, said society has the
t ‘ right to convey its remaining property to a non-member to whom
the society is indebted, in consideration of the agreement on the
part of said grantee to deposit a stated sum of money for their
current needshnd to provide support and maintenance for the
members of the society during their lifetime, and to give them
a suitable burial.
‘ 2. Religious Societies——C-olony of Shakers—Property.~—Mere recogni-
tion' by a local colony of Shakers of the authority of a parent
,- society in matters spiritual does not give the parent or mother
‘ ' society any right, interest, claim or title in or to .the property be—
longing to the local branch. ’
3. Religious . Societies—Colony of Shalters—Property—Estoppei.—
., The parent church of the United Society of Believers called
‘ Shakers, held estopped to assert an interest in or title to prop—
erty conveyed by a local branch or colony of Shakers where the
home society by an act of the first in order of its ministry has _'
approved of a conveyance by the local colony to a third person
of all its property in consideration of the agreement of the grantee
‘ to provide for the welfare and maintenance of the remaining mem-
/- bers of the local society and where the home society has fur-
, . ‘ No. 3—1 .

 286 KENTUCKY REPORTS. [VOL 192.
' thermore executed a quit-claim deed to the granites in said con-
veyance. ‘
CHARLES CARROLL, R. T. CROWE, R. L. BLACK, CHARLES
T. CORN, JOHN P. PARKER and J. F. VANARSDALL for appellants.
HELM BRUCE, BRUCE & BULLITT, C. E. RANKIN and E. H.
GAITHER for appellees.
OPINION or THE COURr BY JUDGE Q'UlN——Affirming.
The United Society of Believers, commonly known as
Shakers, had its origin in France prior to 1706. Their
fundamental doctrine was that the second coming of _
' Christ was near. A small society was organized in Eug—
, land in 1717. Because of her persecution, Ann Lee (to
whom, according to their belief, Christ had revealed him—
self) came to this country in 1774. As a result of A1111 .
Lee’s work, a colony was organized at Mt. Lebanon, ‘
New York, in 1787. This became the parent church and. p
from it branches were established in many states. Houd—
quartcrs for the western country were opened in Union
Village, Ohio, in 1805. The society in Kentucky had its
beginning in Mercer county in August, 1805, at :1. place .
, appropriately named Pleasant Hill. Herc the society ‘
, - greatly prospered, reaching the zenith of its glory, powcr
and affluence at a date prior, to 1896. There were 450
members in the society at one time and it had title to
6,000 or 7,000 acres of property, including some of the
best land in the county.
‘ The history of Pleasant Hill, the activities and
achievements of its people, their profound faith in God
- and their quaint customs make a most intcrcstlug story. .
Because of their emotional nature and the :l’uct that in :
their religious service they were often exercised with
’ great agitations of body and limbs, shaking, running and '
. walking the floor, with a variety of signs and motions,
- they received the appellation of Shakers. ’
. The members practiced communism and in order to .
enter the sacred privileges of the church relation, they
' were required to first settle all just claims of creditors
and filial heirs and then followed a dedication and consc— 1
oration of their persons, services and property to the ’

_ ‘ pious and benevolent purpose of the gospel. Colibacy is a .5
cardinal principle of their belief. Accessions, including '
children, were necessarily sought and obtained from the

‘ outside; Married persons could become members, but .
they ceased to live together upon joining the society.

 ° Board of Parent'Ministry v. Bohon, Ex’tx. 287
The great prosperity of the colony was not destined
for a long life; adversity came, new members ceased to be
taken in, former members were growing older and the in-
firmities of old age incapacitated many of them from ren-
dering any effective service.

An atlirmance by the United States Circuit Court of
Appeals of a judgment against the society on a note exe-

cuted by one of the trustees necessitated the execution of ‘
a mortgage of their property to the Kentucky Title Com—
pany of Louisville for $30,000. This was in January,
1896, at which time the society had disposed of nearly one—
_ half of its property; the mortgage embraced 3,334 acres.
To lift this mortgage considerable of the land had to be
sold. Despite frequent sales of land to pay accruing
debts, the property was allowed to deteriorate; the fences
' were practically gone, the houses and barns were in bad
‘ state of repair, and the land, to use the expression of one
, witness, “had been cultivated down to the clay.” Truly
pathetic was the situation that confronted those good
people and gloomy the outlook when, in September, 1910,
the remaining covenant members of the society, eleven
j ‘ (11) in number, held a meeting looking to their future
welfare. Fully cognizant of their deplorable condition
and that it was imperative some action be taken to pro—
vide for their support, a Committee of three was appoint—
ed with authority to enter into such contracts as would
guarantee to them proper support and comfort during
the remainder of their lives. This authorization includ—

ed the right to encumber or convey the property.
Carrying out. the suggestion of this meeting the com-
: mittee, with the assistance of counsel, decided the best
' plan would be to convey the property to some one willing
. and able to provide for them. Mr. George Bolton, a
non-member of the society and a leading citizen and bank—
. er of llarrodsburg, was prevailed upon to accept the
trust. The property, consisting of 1,400 acres, was con—
veyed to Bohon. lle took possession of it and undertook 1
the care of the members of the society who continued to
, live on the property. Between the date of the convey—
, . ance and October, 1912, Bolion expended a net sum of
_. $20,371.08 on the property. The transfer of the property
; resulted in protracted litigation, this being the third suit
that has found its way to this court. ‘

Under Ky. Stats, sec. 323, the county superintendent
of schools of Mercer county, filed a petition alleging the
society had been dissolved and therefore the» Shaker

 288 , KENTUCKY REPORTS. [Vol 192.
property had escheated to the Commonwealth. But a
judgment dismissing the petition was affirmed on appeal.
Adams v. Bohon, Extx., 176 Ky. 66, 195 S. W. 156, where—
in it was held that the statute under which it was sought
to escheat property expressly exempted the society from
its operations.
, In Easum v. Bohon, Extx., 180 Ky. 451, 202 S. XV. 901,
L. R. A. 1918B, 144, it was alleged the society was a pure-
ly. charitable institution whose purposes and obiects had
failed and that the conveyance to Bohon had effected its
dissolution, hence it was sought to have an accounting and
, distribution of the property to the members living at the
time of the dissolution, and to the descendants of the
deceased members. The petition in this suit was like-
wise dismissed. . .
The present suit was instituted by the Board of Par— ;
ent Ministry of the United Society of Believers, and
others, to set aside the deed to Bohon on the ground that '
it was obtained by fraud and without authority. A like ,
order was asked in regard to a deed from Bohon to Pen- .
nebaker, executed in 1913, and of a quit claim deed from ,
, appellants to Bohon in 1912. It was alleged the deed to
Bohon effected a dissolution of the society and therefore
the Shaker property reverted to appellants for the bene—
fit of the various Shaker societies in the United States. ,
Upon finalhearing this petition was dismissed and this
appeal followed. , '
It is urged that under the covenants of the society,
property is not held for any individual nor owned by any '
branch of the society but is a consecrated whole devoted
to the society as a whole and upon the dissolution‘of any
branch or colony all property held by it reverts to the}
, , parent ministry.
. Aside from a recognition of the Mt. Lebanon, New '
York society as the mother church, an occasional refer-
ence to it in the records kept by the three colonies, toewit: -
Pleasant Hill, Mt. Lebanon and Union Village, and the 1‘
. evidence of certain reports made to the parent society, ' ,
we find nothing to indicate that appellant society has any
right, title, interest or claim in or to any of the property 5'
owned by the Mercer county Shakers. Beginning as far i
' back as 1821, in the conveyances of all property purchas—
ed, the grantee is designated as the society at Pleasant
Hill, in Mercer county, nor do the deeds contain any ref— '
erence to or intimation of any interest on the part of any
one else. - i ‘

 Board of Parent Ministry V. Bohon, Ex’tx. 289

Recognition of the parent church at Mt. Lebanon and
of the central church at Union Village, in no wise de- =
prived the Pleasant Hill society of the right to acquire,
own or dispose of property in its own right. The author—
ity and leadership of these two societies seem to have
been recognized and acknowledged solely in spiritual mat-
ters. There is nothing to indicate any control or direc—
tion over the Pleasant Hill society in matters temporal. .
The Pleasant Hill colony bought and sold property with-
out the consent or objection of the two senior societies.

In a circular epistle sent to all the societies from Mt.
Lebanon in 1829 appears this significant statement: '

“ ' . . . and our mutual faith and love are the only .
bonds of union that have been found necessary, so far

, as regards our relation to God and each other as a separ-

‘ ate and peculiar people.” '

And in the same document we find:

' “ . . . hence it becomes indispensably necessary that
our temporal interest be secured in the hands of trus-

‘ tees. . . . ”

7 A very solemn ceremony usually attended the eleva—
tion of a member to the important office of trustee. He
was required to execute a declaration of trust in conform-
ity to the provisions of “the covenant and constitution

, of the United Society of Believers, commonly called
Shakers, at Pleasant Hill, in the county of Mercer, and

1 state of Kentucky.” - '

Of the three trustees at the time of the conveyance
to Bolion, one (F. \V. Pennebaker) was inducted into
office in 1904. He became a trustee of the church and so—
ciety at Pleasant Hill.” As such he was to hold, manage
and improve the temporal property of said church and
society for its use and benefit and to buy, sell and trans—

- act business in behalf of same. The investiture was of
the legal title to all the property belonging to said church . ~

. and society. And so throughout the entire instrument
the repeated use of the participial adjective “said” could

' refer to none other than the Pleasant Hill society. ‘ 0f

' this branch alone were they trustees.

5 The Mercer county society entered into a church cov- _

; lenant or constitution in 1814, but as their written agree—
ments were not, like the laws of the Medes and Persians,
unalterable, this covenant was changed from time to time.
Others were executed in 1830 and 1844. It is upon these
covenants that much streSS is placed by counsel for ap-
pellants to substantiate their claims in the present suit;

 290 . KENTUCKY REPORTS. v [Vol 192..
but, from a study of these documents, we are unable to
" agree, with counsel as to their interpretation and con—
struction thereof. This conclusion is exemplified in the
preamble to the covenant or constitution of 1844, which
reads: ,
“ch the Brethren and Sisters of the United Society
of Believers, (called Shakers), residing in the county of
Mercer and state of Kentucky, being connected together
as a religious and social community, distinguished bythe
name and title of The Church of the United Socicly at
Plcasant Hill, which, for many years, has been estab- 1
lished and in successful operation under the charge and ‘
protection of the the Ministry and Eldcrship thereof;
feeling the importance not only of renewing and confirm-
ing our spiritual Covenant with God and each other, but
also of renewing and improving our social compact, and
amending the ‘written form thereof, do make, ordain and
, (lcclm'c {he follov'zclng articles of agreement as a summary
. of the principles, rules and regulations established in
the Church of said United Society which are to [)0 hcpt
and 7)’I(l~’llll(£lll€1(l by us, both in our collective and individ—
' ual capacities, as a COVENANT or CONSTITUTION,
which shall stand as a lawful testimony of our religious
v association before all men, and in all cases of question
and law, relating to the possession and improvement of
our united and consecrated interest, property and estate.
Acknowledgment oi“ the ministry at Mt. Lebanon as
_ the general center of union is found in article 1, section 2.
But throughout'the entire document this recognition of _
the ministry as before suggested acorns to have 1"cl‘orcnco
only to the spiritual and primary authority of tho society
or comnninity in all matters pertaining to the ministerial ,
, ~ office. Visiting brcthrcn from the mother church and
, from the society at Union Village, would oftentimes be '
' ' present and preside over the meetings at Pleasant Hill. 1
But nowhere do we find in the well and neatly kept r00
ords of the societies anything indicating that either the
‘ parent society or the one at Union Village had aught
whatever to do with the property belonging to the Mer—
ccr county colony. It is admitted in appollants’ brief
that no question was raised by the parent ministry in re—
- gard to the disposition of property by the Pleasant Hill -
society until the conveyance to 13011011. This is explained
by the fact that when those sales were made the society
was a going concern and the sales and conveyances were
within the ordinary course of business and did not affect ,

 I
Board of Parent Ministry v. Bohon, Ex’tx. 291
the integrity of the society as the proceeds of said sales
were used for the benefit of the society as a whole. But, as
we take it, the deed to Bohon was for no other purpose
than for'the protection and 'welfare of the society as a
whole. The only instances giving any color to the recogni—
tion of appellants’ claim of an interest of the parent
church in the (Pleasant Hill property are found in
the mortgage to the Kentucky Title Company,
and the later conveyance t0 Castleman, in which
the title company joined. It is therein recited
that the societies at Mt. Lebanon and Union Vil—
lage gave their sanction and approval to these
transactions; but this was manifestly for no other pur—
pose than to satisfy the demands of the title company,
which as a. matter of precaution and protection on its
part required this to be done. Other than the deed to
Bohon the records of the parent ministry fail to show
. any other instance where notice was taken of any of the
real estate transactions of the colony in Mercer county.
As we take it the relation of the local branches of the '
center of union and the parent society is strikingly sim—
ilar to that of the Methodist church, which has its gener—
al, annual, district and church conferences, the first
named being the final authority in matters pertaining to
church government and discipline. Methodism is divided
into a number of annual conferences, each of which is
presided over by a bishop, elected by the general confer-
ence. These annual conferences in turn assign to the sev-
eral churches the pastors for the succeeding: conference
’ year. ‘I'Vhile the annual, as well as the district, confer—
ences may own property, such for example as an orphan-
age or a district parsonage, and while the authority of
' the bishop, presiding elders and superior conferences in
. all matters disciplinary and governmental is fully recog-
. nized and respected by the local churches, no authority
other than the local church has any voice in the manage-
ment, control or disposition of its church property, title
to which under the law of the church is vested in ~
.. trustees.
But if there was any doubt, (and we entertain none)
about the conclusion we have reached to the effect that
' appellants have no claim or interest in the property at
Pleasant Hill, this doubt would be dispelled by two events
that took place subsequent to the execution of the con—
veyance to Bolion. First, in October 1912, pursuant to
a telegram from Joseph Holden, then the first in the order
I

 292 KENTUCKY REPORTS. [VOL 192,
of the ministry of the mother church, Bohon mot Holden
at Cincinnati for a conference, and as a. result of that
conference there was endorsed upon the original dccd
from the trustees of the Pleasant Hill society to George
Bohon this statement, to—wit:

: “The foregoing contract and deed of sale botwcon
George Bohon and the society of Shakers at Pleasant
Hill, Kentucky, is hereby ratified and confirmed this 18th
of October, 1912. Joseph Holden, for central ministry
of Mt. Lebanon, N. Y.”

This visit was reported to the parent ministry. Ap— '
prised of the sale to Bohon the head of the parent churchx
assented to and approved the conveyance. Certainly no
one at the time entertained any idea of making claim to

- the property. '

Second. Mindful of the fact that the Kentucky Title.
Company had required the parent ministry to give. its -
consent to the execution of the mortgage to it, and with
tho evident purpose of trying to avoid any possible claim
of title or interest in or to the property on the part of '
that society, such for example as is being made in' the
instant suit, Bohon in September, 1910, mailed to the par—
cnt ministry a quit—claim deed to the property conveyed
to him by the Pleasant Hill society. This quit—claim dccd

' was executed vaember 16, 1912, by Joseph Holden,
Harriett Bullard and M. Catherine Allen for the minis—
try of the home society at Mt. Lebanon, and in it the first
parties ratify and confirm said conveyance to Bohon and
quit-claim any and all rights of the first parties to the
property conveyed and upon the terms, conditions and
stipulations contained in the said deed. Letters con- .
firmatory of this transaction were later written by Hold-

. on to Bollon. ,

, Thus it seems that not only in the endorsement. on i
the deed itself and in the quit-claim deed, but in the lot
tors last mentioned the parent society fully recognized

' it had no claim or interest in or title to said property, -
‘ or if it did they were willing to and did endeavor to waive
’ and convey any such claim or title in the Mercer county
. land. Furthermore it appears that when the Pleasant
' Hill colony was in financial straits they applied to the
‘ parent ministry for succor, but this was denied them, and
they were told to manage their property to the best
advantage under the circumstances. Before the convoy;
ance to Bohon they again applied to the parent ministry
for help and if was again refused, though at this time the

 Board of Parent Ministry v. Bohon, Ex’tx. 293
parent ministry suggested they would remove all the re-
maining members of the Mercer county society to other
colonies, sell the property, pay the debts and give to the
society any surplus that might remain, but this the local
society was unwilling to do. Pleasant Hill was their
home, and like the Moabitess, Ruth, the exemplary daugh—
ter—in—law, they wanted to die and be buried in the landof ,
their adoption. rllhe thought of a removal to other places ‘
was abhorrent to them. It is testified that: when these
terms were submitted they became hysterical; they could

. not bear the thought efleaving Pleasant Hill. As one
of the two survivors expresses it, “all were too much
Kentuckians to do that—to want to go anywhere.”

it is rather significant, too, that when Elder Holden

' returned from his conference with Bohon at Cincinnati,
and before the quit—claim deed was sigi’ied, he told his
people that the place at Pleasant Hill was run down and
very much out of repair; that the people were absolutely

‘ helpless and must be cared for. He also reported a state—

' merit/of Bohon that if he (Bohon) was reimbursed for
what he had expended in repairs and in caring for the
remaining Shakers and was paid the sum of $10,000, due
him for money loaned the Pleasant Hill Shakers prior to
the conveyance, he would be glad to convey the property
to the parent ministry, if they would provide a caretaker
for the remaining members and see that they had a re-
spectable burial. This offer was never accepted.

In March, 1913, Behon and wife'conveyed’to W. F.
Pennebaker, trustee for Sarah E. Pennebaker and three
others, all of the grantees being members of the society,

v 576 acres of the land Bohon had received in 1910, upon
the condition that Pennebaker would carry out the under—

. taking of Bohon’s agreement as to the care and provis-
ions of those named.

' Bohon retained the remaining portion of the property -
. and undertook the care of the remaining Shakers, of
whom at the time the proof was taken there was but one,
Sister Mary Settles; W. F. Pennebaker being the sole
survivor of those he, Pennebaker, had agreed to care for,
’ Sister Mary says the people have been very kind to her;
that her board is furnished, likewise her clothing, and that
she has a maid to take care of her. This indicates that
the agreement to provide for the comfort and welfare
'of these unfortunate people has been fully and faithfully
kept. .
i \

 294: KENTUCKY REPORTS. [Vol 192. .
Gass, ctc. v. VVilhite, etc. 2 Dana 170, was a proceed-
, ing instituted by two scceding members of the Pleasant
Hill society for the purpose of obtaining a division of the
property and having their shares allotted to them, and
it was held that the import of article 3 of the covenant
was that the property brought in by any members should
become the property of the whole society as such, with
a several right of use conferred on each member, as a
member, and by consequence, only whilst or so long as he .
~ remained a member. This statement is the basis of the .
argument in the present case that the trustees had no
power to convey the property for the individual benefit
, of the members and that this was the effect of the con—
veyance to Bohon. But the Bohon dccd was not different _
from the many other deeds that had been executed by
. the trustees to others. Various tracts of land had been ‘
conveyed year after year for the sole purpose of paying
the debts of the society and to provide a suitable main—
tenance for the members. This was the express purpose ‘
of tho Bohon doc—d. It is so recited in the deed itself. ,
At the time this dccd was executed the society was in- ‘
dcbted to Bohon in the. sum of $10,000. Not only did =
‘ Bohon agree to provide for the members as long as they
lived, and also covcnantcd to see that they were given a
— suitable burial, but as a further consideration he set
aside the sum of $5,000 to be 'used by them for such pur-
poses as they might desire. The conveyance t0 Bohon
was as much a conveyance by the society for the society
as any other conveyance made during the existence of the '
society at Pleasant Hill, and we can see no difference in
effect between this deed and the others. The proceeds of
. any conveyancc by the society would necessarily inure to
, the benefit of the members of the society, and .
, that is what happened when the property was
conveyed to Bohon. It was for the protection,
care and welfare of the society or the individuals com—
. posing i,tft.lieyr were one and the same—and as) ~
‘ such it was not contrary to the society’s covenants
or constitution. The conveyance to Bohon was but
. another way of providing for the maintenance of the
aged and practically helpless members. Indeed a con,—
" veyance by piecemeal would have given no assurance
the propcrty'would hold out to the end for the sustenance
, of the last survivor. Under the deed to Bohon the gran—'
‘ tors and members amply, wisely and prudently provided
against that proverbial rainy day that they felt was -

 N. O. Browning V. Katie Browning v. Marshall. 295
sure to come sooner or later. There is no semblance of
fraud in the obtainment of the Bohon deed.
On the whole case we are satisfied that appellants had
no right, title, interest or claim in or to any of the prop— '
erty of the Pleasant Hill society. Entertaining this view
it necessarily follOWs the lower court did not err in or—
dering a dismissal of the petition. The judgment is ’
accordingly affirmed.
N. O. Browning and Katie Browning v. Marshall, et al.
(Decided May 31, 1921.)
Appeal from Pendleton Circuit. Court.
‘ 1. Boundaries—Evidence.—Evidence examined and held the trial
court fixed the proper line between the two farms in question.
2. Adverse P-ossession—Boundaries.~—Where a temporary fence is
‘ established by agreement between adjoining land holders at a
I place known by them not to be on the line, and with the under-
standing that it should be thereafter placed on the true line, the
: holding by one of a strip of land belonging to the other, and en- 5
closed by him under the agreement, is not adverse to the true
owner. And a conveyance by the owner is not champertous, the
possession under the agreement being friendly to and not adverse
to the title holder.
3. Adverse Possession—Occupancy.—The occupancy of one holding . '
the same under such an agreement was the possession of the title
. holder.
JOHN B. COLVIN and LESLIE T. KPPLEGATE for appellants.
A. H. BAKER and M. C, SWINFORD for appellees.
OPINION or THE COURT Br TURNER, COMMISSIONER——
Affirming.
4 Prior to November, 1913, W. R. Marshall was the own—
er of a tract of 11914 acres of land on Licking river in
Pendleton county. Adjoining his said farm on the north-
west appellants, Browning and wife, owned a tract of
land.
In November, 1913, Marshall conveyed his tract of
land to Dennie Washburn. For some years prior to that
time the dividing fence between the Marshall and Brown-
ing farms had been very poor and, in fact, at places there
were gaps or openings in it, and it afforded no protection

 296 KENTUCKY REPORTS. [Vol. 192.
to either from the stock of the other. But it is claimed
by appellecs that, a year or two before the conveyance
to VVashburn, Marshall and Browning had entered into
' an agreement by which Browning might erect a tempo—
rary fence at a place known by them not to be on the true
line, so that Browning might get the benefit of his pas—
turage and turn his stock out on his side; and this agree—
ment, as alleged, involved a temporary enclosure by
Browning of a small strip of Marshall’s farm, approxi-
mately an acre or an acre and a half, and it was agreed
that later, when a permanent fence should be made, it was i
to be put upon the true. line. «
At the time of the conveyance by Marshall to W'ash- ‘
burn it was pointed out to the latter that the temporary ,
fence was not on the correct line, and Marshall informed ‘
VVashburn of the agreement between him and Browning; ‘
’ Thereafter VVashburn demanded of Marshall that he
put him in possession of this strip of land which he had V
conveyed him by warranty deed, whereupon Marshall
demanded of Browning that he place the fence upon\‘.the -
true line, which Browning at the time, according to the i
. ‘ plaintiff’s contention, agreed to do.
i The matter thus ran on until 1918, when XV. B. Mar— ,
' . shall died, and thereafter his heirs or devisees, joint ap—
pellees herein with Vvashburn, made a'similar demand up—
on Browning and at that time it lwas agreed between them
and Browning that a survey of the line between the two
farms should be made and that he would abide by the re— 3
sult of that survey and move the fence if the survey 1
‘ showed that as then constructed it was not on the true
.line.
This is an equitable action by the children of W. R.
' Marshall, and \Vashburn, praying that the latter be ad— -
, judged the owner of the strip of land in controversy, and '
that his title thereto be quieted, and that the defendants
. - be required to put the fence on the true line. ‘
The answer ‘was a traverse of the allegations of the
» plaintiffs’ pleadings, and in a separate paragraph it was
pleaded that at the time of the conveyance from W. R.
, Marshall to Washburn the defendants were in the actual, :
_ » open, adverse possession of the strip of land in contro— :
versy and had the same enclosed, and that therefore the v
' deed from Marshall to Washburn, in so far as it em—
; ‘ braced this strip of land, was champertous and void.
‘ F The plaintiffs by reply denied the adverse holding of i
I , i the Brownings, and alleged, in substance, that their hold-

 N. O. Browning & Katie Browning v. Marshall. 297
ing was under the agreement before mentioned, and was
therefore not adverse to but friendly to the title of W. R.
Marshall and was in law and in fact the possession of TV.
R. Marshall.

The circuit court adjudged TNashburn to he the owner
of the strip of land in controversy, and ordered that de-
fendants place the fence upon the true line, and from
that judgment they have appealed.

\Vithout going into details it may be safely said that
the survey made by the surveyors in accordance with the

,, agreement made after the death of XV. B. Marshall con—
vincingly shows that the true line is that claimed by the
f plaintiffs. The beginning point of that line is fixed at a
, point 011 Licking river twelve links above a sycamore tree'
3 and running thence N. 50‘30, E. 189 poles to a walnut
} tree or stump in or near a turnpike. The sycamore tree is
definitely located at twelve links down the