Rowland v. Craig

2 Ky. 330 | Ky. Ct. App. | 1804

The first error assigned ought not now to be regarded, as the principle therein complained of was settled by the opinion given in this cause by this court, at the August term, 1801, wherein it was determined that the report of the commissioners ought to be sustained, and to examine into this error would be indirectly opening the former decree given by this court. But should this oven be now permitted, the principle then settled has been since fully examined and approved in the case of Whitledge against Wait's Heir.

The second error assigned is well founded, and so much of the decree of the general court as directs that the complainants shall execute a bond to the defendants, conditioned to refund the amount decreed to the complainants for rents, profits, and waste, in case the land should be decreed from them by any other prior or better • claim, is erroneous, and must be reversed. This not being dictated by any principle of law. or equity, 'nor provided for by the act concerning occupying claimants of land, this provision is made in that act only where the proprietor of the better title transfers and conveys such better title to the occupying claimant. But the provisions, of that act can not apply to this cause, as it was commenced previous to its passage.

Therefore, it is considered by the court, that so much of the decree aforesaid as directs the complainants to execute a bond to the defendants aforesaid be reversed, annulled, and set aside, and that the appellants recover of the appellees their costs in .this behalf expended, which is ordered to be certified to the general court.