31 Ky. 517 | Ky. Ct. App. | 1833
delivered the Opinion of the Court.
This is an action of ejectment for a lot in the town of Port William, claimed by the lessor (plaintiff in error,) under a deed from one Gatewood, in 1830.
rant was in possession of the lot, in 1811, “ claiming by 7 7 A 7 ,. _ _ __ . purchase, under Gatewood ; ana that Tarrant transferred After a regular deduction of title from the trustees to Gatewood had been shewn, the record states, that evidence was introduced conducing to prove, that one Tar-the possession to Lance; and Lance to Chipp, and Chipp to one Searcy.
Upon that proof the circuit court instructed the jury that, if they believed that the defendants were in the adverse possession of the lot at the date of Gatewood’s deed to Craig, they should find for them ; and thereupon verdict and judgment were rendered lor the deieud-ants
Whether the facts which were proved authorized the verdict, is the only question to be considered by this court. '
If it be admitted that, according to the case of Phillips vs. Rothwell, 4 Bibb, 34, the defendants, though they had a deed, could not have been permitted to hold otherwise than as Searcy (whose title they bought) held, or should be presumed to have held, at the time of the sale under execution, still we are of the opinion' that, however the probabilities might preponderate, the jury had a right to infer, that Searcy held adversely to the title of Gate-wood. Had it been proved, that Searcy entered as the quasi tenant of Gatewood, by: executory contract of purchase, then, although a jury may be allowed to infer the, execution of a conveyance from facts which would not create a “ legdl presumption” of a deed, nevertheless the lapse of nineteen years, without any other circumstance, would not have authorized sucha deduction by the jury.
But the facts do not necessarily prove that Tarrant .entered under an executory contract. It was incumbent on the plaintiff to shew, that Tarrant entered as a tenant, or in virtue of an executory agreement, before he could shew that he had been estopped to hold or, claim adyersely to Gatewood. Evidence conducing to prove that Tarrant claimed to hold by purchase,” does not prove conclusively' that he entered imde'r an executory agreement. And it is not material to enquire whether
Wherefore, the judgment must be affirmed.