Gray v. Nesbet

9 Ky. 35

• Court: Court of Appeals of Kentucky
• Decided: October 15, 1819
• Status: Published

Opinion

Judge Owsley

delivered the opinion of the court.

*

This is an appeal from a judgment of restitution, rendered in favor of Nesbet, on the trial of a traverse taken to an inquisition, finding Gray guilty of a forcible detainer.

Although the indenture of lease, under which Gray is proven to have obtained the possession, purports to have been signed and sealed by both him and Nesbet, we are of opinion, that, in a proceeding against Gray for a forcible detainer, no proof of an execution by Nesbet was necessary, and that the court below correctly refused to allow an examination of the witness in relation to such an execution.

And although owing to the absence of Nesbet from the county, Gray could not, at the termination of the lease, have surrendered to him the possession of the premises, that circumstance was correctly decided by the court, not to furnish sufficient cause for an instruction to the jury to find for Gray.

To constitute a forcible detainer, Gray must, it is true, have been either guilty of actual force, or have refused to restore the premises, but as that might have been done as well after as at the termination of the lease; and as such a refusal may, for any thing apparent on the record, have been proven, the court did right in refusing to give the instructions to the jury.

The judgment must be affirmed with cost.

Absent, Judge Rowan.