Duchane v. Goodtitle

1 Blackf. 117, 1821 Ind. LEXIS 3

• Court: Indiana Supreme Court
• Decided: May 10, 1821
• Status: Published

Opinion

Scott, J.

The appellant has assigned several reasons for reversing the judgment. The first is, that executors cannot maintain an action of ejectment for a fee simple estate. Although an executor, by virtue of his authority as executor alone, has no power over a fee simple estate; yet he may, by a Special provision in the will of the testator, be authorized to enter on such estate, and to lease or otherwise dispose of it. Therefore, the position that an executor cannot maintain ejectment for a fee simple estate, is not in all cases correct. But if we admit the correctness of the position in all its latitude, it can avail nothing in the present case; inasmuch as there is nothing in the record, which proves to this Court that the property in controversy was of that description. Wherever a man has a right to enter and make a lease, he has a right to maintain ejectment. As the will of Bazadone is not before us, we cannot say that the executors have acted without authority. The remaining objections all have reference to evidence offered on .the trial in the Court below, which, not being spread on the record, can have no weight in this decision. If any error has intervened in the progress of this cause in the Circuit Court, wh have no legal evidence of it.

Dewey, for the appellant. .JipDonald and Tabbs, for the appellee. Blackford, J., gave no opinion, having been of counsel jTof one 0f hie parties in a similar cause.

Per Curiam.

The judgment is affirmed, with costs,