39 Ky. 427 | Ky. Ct. App. | 1840
delivered the Opinion of the Court.
In this case, (ejectment,) we cannot decide that the Circuit Judge erred in permitting an extension of the demise before the trial. The demise being a fiction, the Court may, in the exercise of a sound discretion, permit an extension of it before trial, for the purpose of preventing injustice and insuring a fair trial on the titles. Owings vs Marshall, 3 Bibb. 27; Hunter vs Fairfax's devisee, 1 Munf. 218; Lyon ex dem. Eden et al. vs Burtis et al. 18 Johnson, 510; Rogers vs Barnet, 4 Bibb, 480; Adams on Ejectment, (Alb. 7 Ed. of 1830) 203-4-5; and it does not appear that there was any abuse of discretion, in allowing the amendment in this case.
But whether there may be any such extension after judgment, is obviously an essentially different question.
As, however, McBride could not be entitled to recover more than the undivided interest which may have been conveyed to him by three of Ann Cunningham’s devisees and by Mary Price — the verdict and judgment for the entire tract, as claimed in the declaration, were unauthorized and erroneous. Daniel vs Bratton, 1 Dana, 210; Dougherty vs Linthicum, 8 Dana, 196-7.
This opinion is-not to be understood as concluding, hereafter, any question as to whether the Circuit Judge erred, in any respect, to McBride’s prejudice.
Wherefore, the judgment is reversed, and the cause remanded for a new trial.