The defendant claims under two patents, one of which was issued to William Mattingly, for 100 acres, in 1846, and overlaps and includes the northwesterly part of the tract said to be described by the Roberts-Mosley deed, and the other of which was issued to William Sizemore, for 50 acres, in 1885, and overlaps the southwesterly part of the deeded tract. The questions involved can be better understood by reference to the sketch map here reproduced, showing approximately the relative location of the chief natural objects and N lines involved. Muncey's creek, flowing north and then east, enters the Middle fork of the Kentucky river. About half a mile up the creek, we find a high ridge at right angles to the creek, and which, with a break where the creek comes through, continues east until it joins the ridge between the creek and the river. Going up the creek from the mouth, and before reaching this ridge, there are two branches on the right and one small one on the left. The ridges which mark the watershed of all these branches, taken in connection with the cross-over ridge just mentioned and the ridge between the river and the creek, make a fairly continuous line of ridges in the approximate form of a horseshoe, closed at the mouth by the river and including about 400 acres; and this is the boundary now claimed by Mosley to be that described in the Roberts deed. The heavy black line indicates the summit of the ridges just recited. True, these natural objects do not form so obvious an inclosure as might be thought if the description went no further, because it includes other ridges among the two branches, because the cross-over ridge is not continuous, but is broken into fan-shaped spurs on both sides of the creek, and because the line F G departs from the main ridge. For 50 years before Mosley took his conveyance, Lucy Roberts' father, Bowlin, and she and her first husband, Godsey, and she and her second husband, Roberts, had lived upon the bottom lands along the creek or the mouth of these branches, with houses in three different locations, and with a considerable acreage of lands under fence and under cultivation. Henry Mosley and his children continued and extended this occupation, and, for more than 15 years before the suit commenced, had actually occupied, with buildings or cultivation, probably 50 acres. For the whole 80 years before suit commenced, no one other than the Bowlin, Roberts, and Mosley families had ever lived within this external boundary or had any actual possession of any part thereof, excepting that Thomas North, a predecessor of defendant, under the Mattingly grant, had lived thereon for a few years prior to 1864, at which date he permanently moved away, and excepting-if they be exceptions-running of lines and cutting of timber. The greater part of the actual occupation by the Mosleys and their predecessors was within the lines of a patent to Robert Pace, about simultaneous with that to Mattingly. There is no direct proof that this Pace patent belonged to Lucy Roberts or her predecessors in occupancy; and, if it were a controlling question, we should have to decide whether certain facts indicating such occupancy by her under the Pace patent were sufficient to support a conclusion to that effect. However, for the purposes of this opinion and without intending any decision thereon, we assume that it must be considered that when Mosley entered under the Roberts deed, he took a good title to so much of the boundary as was covered by the Pace patent, and no paper title to the part outside of that patent. The sole question involved in this suit is whether Mosley's actual possession within his deeded boundary operated to give him that constructive possession to the limits of the boundary which is, under the law of Kentucky as well as other states generally, finally sufficient to overcome a better paper title. It is the settled rule in Kentucky that when the alleged disseisor, with color, has good title to part of his described tract and none to the remainder, such actual possession as he takes within the limits of his good title, will be referred to that title only, and that outside of such limits he can prevail against an adverse title only by depending upon actual possession within the interference or overlap between such adverse title and that part of his own entire claim which is only color and not title. We, therefore, assume that Mosley can prevail against defendant only by virtue of his actual possession outside of the Pace patent.1 Cleon K. Calvert, of Hyden, Ky., for appellants. Before KNAPPEN and DENISON, Circuit Judges, and McCALL, District Judge.. 1 As the defendant's boundaries are stated in the deed to it and as they were shown on the map on which defendant relied during the first hearing, they paid no attention to the Pace patent, but included about half of it, including also a considerable part of the Mosley permanent improvements within the Pace lines. Later, defendant seems to have adopted the theory that Pace was valid and senior to Mattingly and Sizemore, and, accordingly, made a new map and reconstructed its tract so as to exclude Pace. Perhaps defendant ought not to be heard to deny that these improvements are within the interference between plaintiff and defendant; but we give the defendant the benefit of the doubt. DENISON, Circuit Judge (after stating the facts as above). [1, 2] The Roberts-Mosley deed was not recorded until 1908, and the first question is whether the doctrine that constructive possession extends to the limits fixed in the deed, applies as well when that instrument is not recorded as when it is. This has not been expressly decided in Kentucky. In Poage's Heirs v. Chinn's Heirs, 4 Dana (Ky.) 50, the court was dealing with a statute, but it is apparent that the possession involved was largely of the constructive character now involved. It was held that record of the immediate instrument under which the disseisors claimed was not essential (see page 55). True, the conveyance from the state, which was the original source of the disseisor's color, was on record; but this does not seem to be controlling. In Ring v. Gray, 6 B. Mon. 368, the court had before it the fact that possession had been held under a deed which was void as against creditors because not recorded. In considering the character of such possession as against other claimants under the common grantor, the court said (page 374): "No principle is better settled than that the possession of a grantee in a deed, is adverse to a grantor, and it is equally so as between them, whether the deed is recorded or not. Does the statute, by declaring that an unrecorded deed shall not be good as against a creditor, change the character of the possession as between the parties to such a deed? Does it convert an adverse into a friendly possession? We are not aware that it has ever been so decided and we are not prepared to give it that construction." Possession, under a deed with warranty, is (normally) as hostile and adverse to those claiming under conflicting sources of title as it is to the grantor. This holding that an unrecorded deed characterizes the possession taken under it seems applicable to the general question we have before us. In Krauth v. Hahn, 139 Ky. 607, 612, 65 S. W. 18, 19, the question of constructive possession was distinctly involved and it was held that an instruction that to establish adverse possession it must have been "under a title of record to a well-defined and clearly-marked boundary," was erroneous. The court said: "A party may, by 15 years' adverse possession, ripen his holding into a title whether he has any title of record or not." It seems to be a necessary inference from the decision that it applied to that possession which was constructive only as well as to that which was actual. If so, it decided the point now involved. In the Burt & Brabb Lumber Co.-Sackett Cases, 147 Ky. 232, 144 S. W. 34, and 150 Ky. 748, 150 S. W. 997, there was the mere recital so often found that when possession is taken under a deed of record, it constructively extends to the boundaries named. This is, of course, true, because the greater includes the less, but whether the rule would be different if the deed were not recorded was not mentioned and perhaps did not occur to the court in these cases. In Lipps v. Turner, 164 Ky. 626, 176 S. W. 42, it is expressly said: "The deed must not only be of record, but must describe the land conveyed with reasonable certainty." The facts of the case show that the deed there involved was of record and that the only question for consideration for the court was as to the 170 C.C.A.-12 sufficiency of the description. The statement in the opinion that the deed must be of record was clearly at the most the understanding of the writer of the opinion and was not the decision of the court. In Hatfield v. Hatfield (Ky.) 113 S. W. 59, the fact that the deed was unrecorded seemed not to be thought inconsistent with constructive possession thereunder. This review of the Kentucky cases makes it clear that we must decide the question according to the controlling reasons and the generally established rule. In order to be effective to perfect his right, the possession of the disseisor must be considered to extend as far as the stated boundaries, and must be so notorious as to support the conclusion that the true owner is to be charged with knowledge. If the record of the deed under which the disseisor claims is of any importance, it must be because it bears upon one or the other of these elements of adverse possession-extent or notoriety. When the entry is under a deed and actual possession of a part is taken, the established rule extends the possession to the boundary. Clearly, the matter of record of the deed has nothing to do with this element, extent of possession. One who had actual knowledge of the deed and of the entry under it would not be heard to deny that constructive possession extended to the boundary, even though the deed was not recorded; and this demonstrates that if the lack of record has any bearing it must be upon the other element, notoriety. It can be seen that under some systems of recording, where conveyances are indexed or abstracted according as they touch definite tracts like a subdivision of a government survey, the owner of such a tract could keep himself informed by occasional references to the record as to whether somebody's constructive possession might be extending over his tract, and here there would be room for the thought that recording might aid to give that degree of notoriety necessary to raise the presumption that notice reached the true owner. However that might be, there is scant room for that thought under the Kentucky system. The true owner could get no information as to what conveyances might be recorded from time to time touching his tract-short of reading all of the recorded conveyances-unles he knew the name of some possible grantee, conveyances to whom should be examined; and he could not know the name of such grantee unless he had been upon the property and observed that some person was actually occupying a part. In that event, he could. get information as to the extent of the claim by asking the occupant, more easily and more effectually than going to the county records to see if any conveyance to this occupant had been recorded. The recording statutes of Kentucky, as well as of other states generally, are for the purpose of protecting one who deals with the holder of the record title. They cannot operate as notice, excepting as they themselves declare that operation, and we find nothing in any Kentucky recording statute which makes the record of a deed notice thereof to a claimant under another chain of title. We see no reason why it should be required that there must be notoriety as to the precise territorial extent of the occupant's claim to lands. beyond his house and fields, under such a situation as prevailed in Ken tucky at this time. There was no government survey or other practice by which tracts were claimed in quarter sections or in parallelograms; patents and grants were bounded by irregular lines, and an occupied house and field along a creek bottom fairly indicated to all a patent or deed including additional lands extending in some direction and not customarily marked by fences or boundaries obvious to the casual passer-by. These conditions furnish an appropriate situation for applying the familiar rule that possession is notice of whatever claim the party. has, and that all others are put upon duty to inquire of the occupant as to the character and extent of his claim. If this is the rule to be applied, there is no reason to doubt that inquiry of Mosley at any time. within 20 years before suit, would have revealed that he was claiming under the Roberts deed to the full extent thereof; but even if the notoriety of the claim to the external limits of the description must be separately established and found otherwise than as an inference from the notoriety of the actual possession, still the record of the deed cannot be controlling. It will be evidence of notoriety as applied to this doubtful zone; but there may be other sufficient evidence. True, a mere claim that a certain line is the boundary line named in a grant will not establish it at that place when it really is somewhere else, no matter how long-continued the assertion; but, upon this matter of constructive possession, the claim-the mere claim-tells the whole story. Not only does there seem to be lack of reason for holding that the deed which gives color of title must be recorded, but the decisions generally are clearly to the same negative effect. In Lea v. Polk Co., 62 U. S. (21 How.) 493, 16 L. Ed. 203, the case was evidently in the main one of constructive possession through improvement of a small part, and the Supreme Court held that the record of the deed, under which the entry had been made, was unnecessary. This was by way of construction of a Tennessee statute, but the statute did not make any specific reference to constructive possession, and the holding seems to be applicable to the general question. In Minot v. Brooks, 16 N. H. 374, the court says: "But we are of opinion that, to the extent of the lot, there was notice enough to put any other person who made claim to that lot upon inquiry as to the extent of Brooks' claim and possession, and to charge him with notice of all that he would naturally have learned upon such inquiry; that is, with notice of an adverse possession of the whole lot. It is not necessary to make any record of such an adverse possession. The registry is not provided for that purpose, and no case has been found holding a record of such color of title necessary. Some of the language in Prescott v. Nevers, 4 Mason, 326 [Fed. Cas. No. 11,390], might perhaps be regarded as implying that a record was of some importance, but, if so, the position is not sustained elsewhere nor by the reason of the thing. The evidence of title furnished by adverse possession for 20 years, is said to be founded on a presumption of some grant or agreement, which the law raises for the quieting of possessions and titles. But this presumption of grant does not arise from the fact that the party in possession has any title on record. It exists in full force where nothing exists on the record as to the extent of the actual occupation. The color of title only extends the limits of that occupation constructively. But it is the occupation itself that furnishes the notice, and as we said before the registry is not provided to give limits to it. The actual occupation being of a character to put anyone claiming upon inquiry, he must inquire. If he does so he will be |