13 Ky. 265 | Ky. Ct. App. | 1823
Opinion of the Court.
TPIÍS was an action of ejectment. The declaration contains but one count, and that alleges that William Shropshire, William B. Scott and Polly his wile, jointly and' severally demised to the plaintiff the premises in question. The tenants in possession were admitted defendants, upon the usual terms of confessing the lease, entry and ouster alleged in the declaration, and pleaded not guilty, upon which issue was joined.
Tne defendant’s counsel, upon this evidence, moved the court to instruct the jury, that, if they should find that the patent ofHiuckson, under which they claimed, bore the same date of the patent of Trabue, the land in controversy was included in both patents, and that the defendants held t title derived from the heirs of Hinckson, or any of them, they must find, to the extent of the interference, for the defendants; but the court overruled the motion, upon the ground, that the land in controversy was settled under the claim of-Adams, by
The refusal of the circuit court to instruct the jury to find as in case ofa nonsuit, we think, was correct. The title of the lessors of the plaintiff, as they were shown to be tenanisin common, would not, indeed, support a joint demise, according to the decisions of-this court; but we must, we apprehend, understand th'e land to have been severally, as well as jointly demised by the lessors of the plaintiff. The defendants having confessed the lease, it was, of course, unnecessary to prove it; but it must be presumed to be as laid in thé declaration, unless it were impossible to be so. But surely there is nothing which renders it impracticable in fact, or absurd in law, that k plurality Of persons should demise the same land, for the same term, seVeral-Jy and jointly. We are not prepared to say that they could not do so by the same deed; but, be this as it may, they certainly might do so by several deeds; for each might, by his several deed, have demised his undivided moiety, and.by uniting in another deed, have jointly demised the whole; and thus literally they would have jointly and severally demised the premises, as alleged in the declaration.
But we are clearly of opinion that the circuit court erred in refusing to give the last instruction asked by ..the defendant. Had the lessors of the plaintiff produced no evidence of any other title in themselves, than that which they derived' under Adams, the case would have presented some difficulty; but by the production of the patent of Trabue, and' deriving title to themselves under it, they thereby demonstrated that they had no right of entry, derived under the patent to Adams; and could only, therefore, by their own evidence, maintain their action in virtue of the title derived from the patent to Trabue. With that, there is no pretence tbat the defendants had any privity or relation whatever; and, of course, they could, upon »»
The judgment must be reversed with costs, and the cause remanded, for new proceedings to be had, not inconsistent with this opinion.