8 Ky. Op. 304 | Ky. Ct. App. | 1875
Opinion by
We do not regard the answer of the appellant as sufficient. She denies that appellee is the owner and entitled to the possession of twenty-four acres and one rood of land in her possession.
This answer may be true, and yet the appellee may be the owner of the land sued for. It would be strictly true if he was the owner, but was not entitled to possession, and it would be equally true although he was the owner and was also entitled to the possession, if, in fact, there was not as much land in the tract as it was alleged to contain. Two material allegations, ownership and right of possession, are grouped together with an allegation of the quantity of land in the tract, and these averments are denied as a whole. The allegation as to quantity was mere description, and whether there was that exact number of acres or not, the appellee had a right to recover whatever was in the tract if he was the owner, and entitled to the possession, and to hold the answer good, would be to hold that a mistake in an untrue allegation of mere matter of description, would defeat the plaintiff’s right of recovery.
In any view we have been able to take of the matter, the court properly disregarded the answer.
Judgment affirmed.