35 Ky. 394 | Ky. Ct. App. | 1837
delivered the Opinion of the Court.
In this case, the reversal of a judgment of eviction, in an ejectment on the several demises of Luke Tiernan, and of Ellicot and Meredith, severally claiming the right of entry under distinct purchases under executions against the estate of Thomas Deye Owings, and also on the demise of Mason and others, as trustees of said Owings — is urged on two grounds: — First. That the Circuit Court erred in refusing to admit, as evidence on the trial, a decree in favor of John Peck, under whom the plaintiffs hold as tenants, and a conveyance from Thomas Triplett, as agent for one Ferguson, to the said Owings and Peck, of the land in controversy; and, secondly, that the Judge erred, also, in overruling a motion for a non-suit, and in giving, and in overruling, instructions to the jury.
In addition to judgments and executions thereon, against the estate of Owings, and sales and conveyances in virtue thereof, to Tiernan and to Ellicot and Meredith, and a prior conveyance, by Owings, to Mason,
These facts and opinions present the points which we are now to consider, upon the errors assigned and already Stated.
First. The Circuit Judge did not err in overruling the motion for a non-suit: because, whatever might have been the more rational deduction from the proofs, the jury might possibly have inferred from them, (1.) that there had been no interval in the continuity of possession from 1801 to 1827; (2.) that Owings was entitled to the benefit of the occupancy by the Thompsons, and (3.) that he had held adversely to Underwood’s patent, prior to 1817, and independently of it afterwards—so that the lessors, as purchasers of Owings’ title, had a legal right of entry, arising from the antecedent possession, and that, therefore, though there may have been no proof that he had acquired any legal interest from Underwood’s grant, and though that was the only document of title exhibited on the trial, nevertheless, the persons in possession could not use it, availably, as an outstanding title, showing that the right of entry was out of the lessors.
Second. Nor can we decide that the Circuit Judge erred in rejecting the decree, and the commissioner’s deed to Peck, made in execution thereof; for, waiving other objections to them, being, as they were, exhibited a one there was no proof that the General Court—of special and limited jurisdiction—which rendered the decree had cognizance of the case, or that the persons, against whom it was rendered, were, in any way, before the Court as parties.
Third. But the instruction, already described as having been given to the jury, was erroneous; because it assumed facts which either did not exist, or which the jury alone had the right to find. The instruction can not be sustained, unless it were admitted that either Peck, or some one claiming under him, entered torcibly, as a trespasser, and, without color of title, actually evicted the lessors, or some one holding under them; or
Fourth. There was error, also, in the rejection of the deed to Owings and Peck by Triplett, as attorney in fact for Ferguson, who claimed an undivided interest under Underwood, for, though Triplett may have had no sufficient authority to convey Ferguson’s interest, nevertheless, the acceptance of his deed, by Owings, is a fact tending, in some degree at least, to shew, first— that, after the date of it, if not before, Owings held the land as a co-tenant with Peck; and, secondly, that he did not hold adversely to Underwood’s title, or independently of it. Had that deed been admitted as evidence, Peck,
Wherefore, for the errors which have been noticed, the judgment of the Circuit Court is reversed,and the cause remanded for a new trial.