Chapman v. Farris, 195 Ky. 362

195 Ky. 362 | Ky. Ct. App. | 1922

Opinion op the Court by

Judge Clarke

Reversing.

This is an appeal by tbe plaintiff from a judgment of tbe circuit court dismissing a forcible entry proceeding on a trial of a traverse by tbe defendant of tbe inquisition before tbe justice of-the peace who issued the writ.

The 'Court’s action in taking the case from the jury and dismissing the writ was based upon a finding by the court that plaintiff and the Prewitt-Miller and Goff Land, Oil aud Gas Company were j'oint owners of the sixteen acres of land involved, and that the defendant had entered thereon as a tenant of the company.

The question of title is not involved upon the trial of a writ of forcible entry, but as the possession of one joint tenant is the possession of all, he cannot employ the writ to oust his co-tenants. Avey v. Hogancamp, et al., 172 Ky. 675, 189 S. W. 917; Derrington v. Childers, 156 Ky. 452, 161 S. W. 216.

Hence, the defendant had the right to prove, if he could, that plaintiff and the Prewitt-Miller and Goff Land, Oil and Gas Company were joint owners ;of the land, in order to show the character of the former’s possession ; and that he entered same as a tenant of the latter, in order to show the character of his entry.

'But such a joint ownership, in our judgment, was not established by proof, and counsel for appellee in their brief frankly confess they do not concede it to be a fact. In the face of such a confession, it hardly seems worth our while to review the evidence to show the court’s error in this respect.

Besides, even if we might concede that plaintiff and the oil and gas company were joint owners of the land, as counsel for defendant will not although asking an affirmance because thereof, there is no proof whatever that defendant entered the premises as a tenant of such company. There was not even an attempt to prove this in any way, but after plaintiff had concluded the introduction of his evidence, it is certified in the transcript of evidence, that “Thereupon the defendant, by counsel, made the stipulation that James Faris entered as a tenant under Prewitt-Miller and Goff Land, Oil and Gas Company. ’ ’

This is the only suggestion in the entire record that the defendant entered as a tenant of the oil and gas company, and it is certainly clear that a litigant cannot by his counsel “stipulate” the essential fact upon which he relies for defense.

Wherefore the judgment is reversed and the cause remanded for a new trial.