44 Ky. 159 | Ky. Ct. App. | 1844
delivered the opinion of the Court.
This action of ejectment having been brought on the demise of Rochford and others, who had conveyed to Baley, as well as on the demise of Baley himself, a recov
Unless then, the deed itself to Baley furnishes the evidence of his authority to prosecute the suit for his own
The Court therefore erred in instructing the jury to the effect, that if the land was held adversely by the defendants, at the date of the deed or deeds to Baley, they should, find for the defendants. To authorize a verdict for the defendants on the ground of champerty, the jury must have found the additional facts that the suit was preseeutedby Baley for his own benefit, with the knowledge and express sanction of his vendors. A verdict which would, in effect, deprive them of their title', by barring them from another suit, should have no less a foundation than this.
As the judgment must be reversed for the error which has been noticed, and the evidence with regard to the possession may not be the sameon another trial, it is only necessary to state, in general terms, the principles of law which seem to be applicable to the question of adverse possession, as now presented in the case.
If the defendants while in possession, acknowledged that they held the land by lease or permission from the lessors or any of them, either directly to themselves, or indirectly through their father, John Deakins, this is evidence of their holding under the lessors ; and if tbey.did so hold, their subsequently claiming to hold the land as their own, and obtaining patents therefor, while they remained in possession, did not release them from their obligation to restore the possession to the lessors. And the deed to Baley, if made by the lessors, under whom they thus held, within twenty years from the time their
If John Deakins, the father of the defendants, entered upon the land as a squatter, making no claim to it as his own, and entering under no title, his possession was not necessarily adverse to the legal title, (that is the oldest patent,) and afterwards, while he thus held, the lessors holding the title, or one of them or their agent, con- ° . . , , . sented to and sanctioned his possession ; and he in virtue of that consent and sanction, afterwards claimed to hold under their title as lessor or otherwise, and claimed protection under it as a means of securing the unmolested possession and enjoyment of the land, and of keeping off trespassers and intruders, and if he continued so to hold with the knowledge and by permission of the said lessors or their agent, he was thereby bound to them as tenant to hold the possession for them as long as he continued in possession, though there may have been no actual lease, written or verbal, and no formal agreement that he should hold as tenant. Such an agreement may be implied from circumstances, and if so implied, is as effectual as if made in words. A permission to hold on the one side, and a holding in virtue of that permission on the other, is sufficient to create the relation of landlord and tenant. And if this relation existed in any of these modes, between the lessors and John Deakins, Sr., when by his permission his sons respectively settled on the land which he had so held, they thereby became subject to the same relation and duty as tenants, which bad previously appertained to his holding, and could not afterwards, by claiming to hold adversely and obtaining patents to themselves, so change the nature of their possession, as to preclude the lessors from regarding the land as being held under and for them, or from their right of conveying the land, until by lapse of time their adverse claim had matured into a right.
The judgment is reversed, and the cause remanded, for a new trial in conformity with this opinion.