Larue's heirs v. Slack, 7 Ky. 358

Larue's heirs v. Slack

7 Ky. 358 | Ky. Ct. App. | 1816

*358- OPINION of the Court, by

Ch. J. Botle.

This is an appeal from a judgment for the defendants in an action of ejectment, on the trial of which it appeared that the lessors of the plaintiffs claimed the land in controversy as coheirs with others who had not joined in the demise laid in the declaration; and the only question material tobe decided, is, whether the other coheirs not having joined is a fatal objection to the right of ⅛⅝ plaintiffs to recover in this case 2

*359This objection was taken in the case of Ward's heirs vs. Harrison, (3 vol. 304) and was then held to be unte«able. That decision, however, having been given without much argument, and the point being a novel one, We thought it proper to direct a reargument of it in this case. But after all the light which the discussion in this case has thrown upon the subject, we are still of Opinion the former decision of this court is correct. It is true that no case has been found directly in point in support of that decision; but it is equally true that no case of that sort has been found which is opposed to it; and in the absence of any direct authority upon the point, the arguments as deduced in the former opinion of this court from the general doctrine of the law in relation to the action of ejectment, is, we still apprehend, sufficient to justify that opinion.

In such a case the plaintiff cannot recover the whole in severalty, but his recovery should be according to the extent of the title shown to be in the lessors.

The judgment must be reversed with costs, and the cause remanded for new proceedings not inconsistent with the foregoing opinion. -