125 Ky. 239 | Ky. Ct. App. | 1907
Opinión of the Court by
Reversing.
This action was instituted in the Perry circuit court for the purpose of quieting the title of the plaintiff, Albert Engle, to a tract of land situated in Perry county, set out by metes and bounds in the petition. The petition alleges the legal title and possession of the land to be in the plaintiff, and that the defendant (appellee) is wrongfully setting up claim to the whole boundary described, and giving out in words and
Section 11, Ky. Stats., 1903, is as follows: “It shall and may be lawful for any person, having both the legal title and possession of lands, to institute and prosecute suit, by petition in equity in the circuit court of the county where the lands, or some part of .them, may lie, against any other person setting up claims thereto; and, if the plaintiff shall be able to establish, and does' establish, his title to said land, the defendant shall be, by the court, ordered and decreed to release his claim thereto.” We are told in the briefs of appellee that the appellant was the tenant of appellee, and’ obtained his possession under a lease, and that this fact is shown by the forcible detainer proceeding mentioned in the special demurrer or plea in abatement; that the trial court had the record of that proceeding before him when he entered the judgment dismissing the petition., and that, as the appellant has failed to bring up this part of the record in the transcript, we must presume that the judgment below is correct. It is a sufficient answer to this to say that it nowhere appears in the transcript before us that the forcible detainer proceeding shows appellant to be the tenant of appellee, or that he obtained the possession he alleges in his petition on' the demise of appellee, and that the clerk’s certificate shows that the transcript is complete. Every intendment is to be taken against the pleader, and we must therefore conclude that the
It is not disputed by the learned counsel that only the naked right of possession is involved in the forcible detainer proceeding, and that neither the right of entry nor the right of property is therein involved; whereas, in the action instituted by the appellant, the title to the property is the issue presented. The statute gives to the owner in possession of land a right to maintain an equitable action to quiet his title. The fact that the defendant has an action pending against him involving the naked right of possession will not either bar or abate his right to settle adverse claims as to the title. The right of possession of land in one person is not inconsistent with the right of property in another. Now, the statute only requires the owner of land to have the actual possession- of his property in order to maintain an action of quiat limet; whether he has the right of possession is immaterial. If the owner is out of possession, he has an ample remedy at law by ejectment; but, if he is in actual possession, he has no remedy against the injury arising from the assertion of worthless and
The pendency of an action of forcible detainer, which involves only the naked right of possession does not conclude a claim of ownership, and therefore. the plea as made was insufficient to bar or abate appellant’s action of quia timet.
The judgment is reversed for proceedings consistent with this opinion.