48 Ky. 620 | Ky. Ct. App. | 1849
delivered the opinion of the Court.
Tiie discovery of assets,ithe necessity of subjecting the real estate of the¿deceased warrantor, and the non residence oi most 01 the heirs, form* a sumcient tonuda-,
Then the question is, what should bo the criterion of recovery 1 Kyle’s deed and warranty were made in-1807, and whether he had title or not, there was no obstruction to the use of the land by Fauntleroy, for more than 30 years, and he did in fact make such use of it under the deed as he deemed proper. If this use did not amount to a possession, and a taking of the annual profit, there was nothing to prevent such enjoyment.
Nor does it certainly appear in this record what was the extent of the use or profit actually made.
It may be assumed, however, that even without cultivating the land, which was in the vicinity of his residence, he might have derived a profit from it at least equal to the interest on $100, which was the price.
The bill states that he purchased it for the timber and wood. He of course deemed its annual use or value for this purpose equivalent to the use of the money paid for the land. And so long as he had this use without disturbance, or the right of disturbance by any one, we think there is no equitable claim for interest on the purchase money, as part .of the damages' recoverable on the warranty. Cogswell’s Heirs vs Lyon (3. J. J. Mar. 38.) And it is not material to enquire whether the ac
There was no error therefore, as to these matters ; but for the error of decreeing interest from the date of Kyle’s deed, the decree is erroneous.
It.is therefore ordered and decreed that said decree be reversed,-and’eause remanded with directions to render a decree in conformity with this opinion: Which is ordered to be certified to said Court.