92 Ky. 249 | Ky. Ct. App. | 1891
DELIVERED THE OPINION OP THE COURT.
After making to his children and grandchildren specific and general devises in money, Isaac Reynolds, by his
This action was brought by the two executors, now appellants, against appellee to recover a tract of land, of which it is stated in the petition the testator, Reynolds, was, at the time of his death, owner, and that defendant now holds without right or title, and unlawfully and wrongfully keeps the plaintiffs from the possession of.
Generally to recover in an action like this, which is in nature an action of ejectment, the plaintiff must show title in himself, though it has been held by this court that when the complete equitable title to an estate and the right of possession conjoin in the same person he will not be denied relief at law merely because the naked legal title may be held by a person not a party to the action. (Bartlett v. Borden, 13 Bush, 46.) A plaintiff* may in some cases recover on a bare profession only without showing title, as when there has been an actual ouster of the tenants as against a trespasser without color of title. (Fowke v. Darnall, 2 Litt., 317.)
But no such condition exists in this case, for it is not alleged the plaintiffs were ousted or ever had possession of the land sued for; nor do we think they were invested by the will with any title to it either legal or equitable. There is a distinction heretofore plainly recognized by
As, therefore, in-our opinion, appellants have no right to maintain the action, the judgment sustaining a demurrer to the petition must be affirmed.