50 Ky. 96 | Ky. Ct. App. | 1850
delivered the opinion of the Court.
This action of ejectment upon the demise of Robert McLawrin, was brought to recover land in the possession of Salmons and others, within the boundaries-of a patent for 640 acres, issued to Elizabeth McLawrin in 1798. On the trial, the plaintiff read the patent and a deed from the patentee to Joseph McLawrin, and to show a conveyance of this title to the lessor, offered to read the record and proceedings of a suit in -chancery in a Court in the State of Virginia, by or between the heirs of Joseph McLawrin for a sale of this land, and for other purposes, including a decree for the sale of this tract of land, a decree confirming the sale thereof and directing its conveyance to Robert McLawrin, the purchaser, by two commissioners named in the decree, and a deed from the commissioners dated in April 1837, purporting to convey the land to him in fee simple, and according to the boundaries described in the original survey and patent. The propriety of rejecting this record, and the deed which was separately offered presents the first question for our consideration.
We concur with the Circuit Court in the opinion that the Court in Virginia had no jurisdiction over in Kentucky, and could not by its order of sale, or by its decree or by the deed of its commissioners pass ... . . , . T . . . t , the title to the lands m controversy. It might maeed have required and used means to compel the title holder °f property before it, to convey the land, and his deed properly proved or authenticated would have been as .. ", , t> ¿ effectual here, as li made at his own mere will, but it had no power over the land except through the person
Upon the rejection of the record from Virginia, the defendant for the purpose of making out title by possession introduced evidence conducing to show that possession had been taken under the patent and to the extent of its boundaries some thirty nine or forty years before the trial, by means of placing tenants on the land under E. McLawrin the patentee or J. McLawrin her alienee, and that the possession had been so held under them and those deriving title from them, and under claim to be possessed to the extent of the patent boundary, until 1837, when the lessor Robert McLawrin claiming to be the owner of the land under said patent, and as may be assumed by virtue of the proceedings and commissioners deed before referred to, took the control and the possession by renting out the land or placing tenants on it, claiming to the extent of the patent boundary, and had such control and possession by his tenants up to the commencement of this action.
Upon this evidence, we think the following principles, apply to the case : 1st, although R. McLawrin was not invested with any title to the land, yet if under claim of title and ownership he leased the land or put tenants upon it intending thereby to take possession to the extent of the patent boundary, and if his lessees or tenants obtained ox held the actual possession under his claim and without restriction of boundary, he became théreby possessed of all the land within the patent boundary which was not in possession of others who did not hold under him or recognize him as their lessor or landlord, unless, which does not appear, there was some conflicting elder patent within the boundaries of which, neither he nor his tenants made actual entry. 2d. Being thus possessed he may maintain an action of ejectment on his own demise against such of the defendants if there be any such, as afterwards entered upon his possession without title or authority, but as mere intruders; 3d. But as he is not invested with the title or legal rights of those under whom as holders of the title under the McLawrin patent the previous possession, was taken and held, he cannot, though he may have acquired the possession with the consent of those persons, and from their tenants, avail himself of such previous possession, as the ground of recovering on his own demise against those defendants who entered upon that possession. He did not acquire the right of possession to the extent of the patent because there was no valid conveyance of the title to him. At most he only acquired the possession as actually held under the patent when h.e took the control and possession, or to the extent that the possession w as then vacant and was afterwards taken by his tenants, or by him through them. And having no other title but this possession,
The instructions asked for by the plaintiff (except the last, which was given,} were properly refused, because they either assume that the plaintiff was entitled to the benefit of the possession as first taken under the Mc-Lawrin patent, or that his own entry by his tenants gave him possession to the extent of his claim though he had no title, and notwithstanding any adverse possession.
The first instruction for the defendant which asserts in effect, that the plaintiff could not recover upon a possession taken and held by his tenants, but must have been in the actual possession himself, and at the commencement of the suit, is inconsistent with this opinion and is therefore deemed erroneous. The last condition requiring the plaintiff to have been in possession at the commeucement of the suit was probably inserted through inadvertence, as the action could only be maintained against those who were then in possession.
The third instruction authorizing an apportionment of the plaintiffs interest, has no basis in the evidence, as there is no proof that he holds title jointly or in common with others.
The report of Processioners dated in January 1837, with the accompanying survey and depositions offered as evidence of boundary, were erroneously rejected. They were filed with the Clerk of the County Court in due time. And the statute though it requires that they should have been recorded, does not make the rccord
Wherefore the judgment is reversed, and the cause remanded for a new trial.