Doty v. Beasley

5 Ky. 14

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1810
• Status: Published

Opinion

OPINION of the Court, by

Judge Clark.

John. Doty, declared against Jame.s Beasley, in trespass, for entering his close, and cutting down and carrying away' bis timber. Beasley plead not guilty, and by consent the cause was submitted to the court, with power to determine the law, and the fact, without the intervention of a jury, and either party to have every benefit of appeal or writ of error, as if the cause had been determined by a jury, and the decision of the court given on ⅜ motion for a new trial. The court on the trial of the cause, gave judgment for the defendant, from which Doty appealed to this court.

Among others, the following errors are assigned

1st. The court erred in rendering a judgment for the defendant, when it should have been for the plaintiff,

2d. The defence set up by the defendant in the circuit court, ought to have been pleaded, and not given ia evidence on the plea of not guilty.

3d. Admitting the said defence had been pleaded, or that it was properly given in evidence on the general issue, it was insufficient to justify the cutting of the trees complained of.

It appears from the record, the plaintiff was in pos session of the land upon which the trespass is alleged, and had a legal title to it, derived from the patentee. This would have enabled him to have supported an action of trespass against any one who had not a superior title to himself. We are of opinion, the title as shewn by the defendant, to the land upon which the trespass was eonnmtted, is not such a one as would authorise an entrv upon the land, or the cutting of timber. He claims title by virtue of a purchase, made from the register at his sales lor taxes, the 28th day of November, 1800, and obtained a certificate of the purchase. On the 23d of October, 1805, he procured ffoni the register, what (we presume) was intended by them as a deed of conveyance, it is signed by. the register, but he has failed to annex a seal to it. The act regulating conveyances, approved December 19th, 1796, declares “ that no estate of inheritance or freehold, or fora term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing, sealed and delivered.” This general regulation must have operation upon all conveyances, whether made by private individuals, or public officers, unless there be some subsequent act changing its provisions. We have not found any provision to that effect — -Judgment reversed.