140 Ky. 102 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
The ownership of a lot of ground containing two,and one-half acres devolved by inheritance npon the six, heirs at law of Charles Roby, deceased.
Four of the heirs conveyed their, interest in the land to one Welch, who conveyed to appellant, Sam Pate. Pate took possession of the whole lot. .Pate conveyed a lot embracing about a quarter of an acre to Mann; Mann conveyed to Coke, Coke to Kellogg, and he to appellee. Later Pate conveyed to appellee another part of the original plat, which contains one and one-half acres. Thereby he had conveyed something more in the aggregate than two-thirds of the whole lot, all that he had. ever owned. Still later appellant became the owner of the remaining third of the-estate by purchase from the two-heirs (or their descendants), whose interest had not been conveyed to Pate. Pate held on to. his possession however,, which was a lot of about th.ree7f0ur.ths of an acre ■at the south end of-the first named parcel, the remainder' being what was left after cutting off the, lot sold by Pate to Mann and appellee. Pate refused to.yield possession to appellee, claiming that he had sold only his interest in the two lots mentioned, which was two-thirds of one and three-quarters acres. Appellee thereupon brought this suit in equity against Pate, claiming that plaintiff was in the actual possession and ownership of the whole tract, that Pate was. trespassing daily upon part of it, and was threatening to continue his trespasses, thereby putting the plaintiff to great annoyance, damage and expense in maintaining a number of suits at law; that Pate was insolvent and that plaintiff had no adequate legal redress. Upon that showing the circuit court issued an injunction restraining Pate from cultivating or trespassing on the lot.
The fact is that Pate did.not own any of.the lot. All the interest that he ever had, he had parted with in his two conveyances. True, he did not purport by his conveyances to sell his undivided interest in the lot, but the
Tt developed that Pate was in actual possession of the small lot which was in controversy when this suit was filed, although he had no semblance of right to it. This action should properly have been in ejectment, instead of in equity to stay trespass. Injunction will never lie as a preliminary writ to oust one in actual possession, in a suit in ejectment. The writ was erroneously employed in this case, the circuit judge having been mislead by the allegations of the petition. It was error, too, to have perpetuated the injunction in the final judgment. But it was error only in the form and practice. Forms of action are not so material under our Code, especially at the end of a case which has been tried out on its merits without objection to the form. It would be a' step backwards in practice, and a misstep in justice, to reverse the judgment in this case on the mere question of form of action. Not only is the trial court admonished that it must in' ‘ ‘ every stage of an action, disregard any error or defect in the proceedings; which does not affect the substantial rights of the adverse party,” but upon this court it is enjoined that “no judgment shall be reversed or affected by reason of such error or defect.” (Sec. 134, Civ. Code Pr.)
Appellant Pate was not when the suit was brought, ■ or when the judgment was rendered, the owner of the
Affirmed.
