66 Ky. 353 | Ky. Ct. App. | 1867
delivered the opinion of the court:
For the consideration of twelve hundred dollars paid in advance, J. C. Johnson, owning a life estate in a house and appttrtenant grounds, in the city of Louis
It does not appear that Schad’s entry was either tortious or continued without the knowledge and implied consent of Mrs. Johnson; and he may not, therefore, be responsible to her for rent; nor, without evidence, can we presume that Plackett’s entry, as sub-lessee, was
The Code requires all defenses, equitable as well as legal, to be pleaded to an action at law; and an equitable right, thus available, may be lost unless thus, litigated. Consequently, whenever the court saw that there was a partial, and only partial, failure of. consideration, it ought to have transferred the case to the equity side of the docket, and, by a commissioner or otherwise, have ascertained the extent of the failure, and given credit for it in the judgment.
Moreover, to end in one suit this controversy, as to all persons who are immediately, or may be consequently, interested in it, Schad and the lessor’s widow, and also his representatives, ought to be made parties; and then, without any other litigation, Schad’s claim for damages against his lessor’s estate; the widow’s right to rents; the appellant’s right on his counter-claim, and to other relief,
Wherefore, the judgment is reversed, and the cause remanded for further proceedings as herein indicated, and for a more comprehensive and quieting decree.