4 Ky. 510 | Ky. Ct. App. | 1809
OPINION of the Court, by
— The appellant, who was plaintiff in the court below, having
The first and main question presenting itself to the consideration of the court, is as to the extent of the plaintiff’s right to the land in controversy. The solution of this question depends essentially upon the interest which Johnson held in the 800 acres, sold to Joseph Davis, at the time of the conveyance. He then transferred to Davis whatever right he possessed ; nor could that right be divested err curtailed by any subsequent act
The only act which he had done previous to the sale to Davis hy which his right could he diminished, was the execution of the deed to Caldwell for 600 acres. Had this deed been executed by Johnson alone, and had purported to be a conveyance in severalty of the whole six hundred acres, yet it could in its effect have operated only as a transfer of an undivided moiety. If we suppose a conveyance irom Johnson of the whole 1400 acres, though he might have made himselt responsible by warranty, or by fraud in concealing the extent of his right, yet not a doubt can be entertained that an undivided moiety, and not the whole, would have passed by such a conveyance,
But to the recovery of the plaintiff in this action, two objections are taken : 1st. that there was no actual ouster of the plaintiff from the premises 5 2d. that there
Upon the first objection, we do not think it necessary to determine whether, if the case had been such that the defendants would not have been compelled, in entering into the common rule, to have confessed ouster, they might, at a subsequent term, have so modified the rule that the plaintiff would have been put upon the proof of an actual ouster ; because we are clearly of opinion that this is not a case in which they would have been, at the time of entering into the rule, entitled to such a modification. In an ejectment by one tenant in common against another, if the title be not disputed, or if the only ouster be by pernancy of the profits, without any actual obstruction to occupy, the defendants will not be compelled to confess, or will be permitted to do it specially — Bul. N. P. 109, Esp. 451. But where, as in this case, the title is disputed, the defendant will be compelled to confess lease, entry and ouster; and in such case it is not necessary for the plaintiff te prove an actual ouster or expulsion from the premises — 3 Burr* 1897, and the cases there cited.
The second objection at first view appeared to be entitled to some weight, but on examination the whole current of authorities were found to be against it. In Esp. 490, it is laid down, that in ejectment the plaintiff shall always re caver according to the title he makes out, although not exactly as stated in the declaration. Where the plaintiff had a title for but five years and declared for seven, he recovered, notwithstanding, according to his title — Bul. N. P. 106, Esp. 447: so if he declares for any thing and proves a title to but a moiety, he shall recover so much as he proves- — Esp. 447, and the authorities there cited. The case of Burges vs. Purvis, 1 Burr. 326, is in point. The plaintiff brought her action in ejectment for a moiety of gavel-kind lands as coheir, upon a supposition that there was but another coheir ; but on the trial it appeared that there was a third person, who, by the custom of gavelkind, was entitled as coheir. It was ruled by the court that the plaintiff, on her declaration for a moiety of the lands, could recover one third part. In giving the opinion in that case, the court relied upon the case of Ablett vs.
The general rule is, that the plaintiff cannot recover a greater quantity or interest than he declares for, but he may recover less.
Upon the whole, we are of opinion, that the plaintiff is entitled to recover from the defendants an undivided moiety of the land described in the deed of conveyance from Thomas Johnson to Joseph Davis, and that the judgment of the circuit court for an undivided hundred acres only is erroneous.--Judgment reversed.
Wrongful aSenations of IT void to'far as they are wrongful — See Setiion afts of Ving'a. 1785, chap. 67, p. 55-Acts of Kentucky 2 Litt. p.39.