Hubbard v. Trustees of Bardstown

Court of Appeals of Kentucky

Hubbard v. Trustees of Bardstown

25 Ky. 81, 2 J.J. Marsh. 81, 1829 Ky. LEXIS 32

DecidedJune 27, 1829

StatusPublished

This text of 25 Ky. 81 (Hubbard v. Trustees of Bardstown) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hubbard v. Trustees of Bardstown, 25 Ky. 81, 2 J.J. Marsh. 81, 1829 Ky. LEXIS 32 (Ky. Ct. App. 1829).

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Opinion

Judge Robertson

delivered the opinion of the Court.,

The legal title in ejectment is in the lessor, and the lease is fictitious; but for all the purposes of trying the title, it is considered as real, Hence the death or marriage, or conveyance of the lessor, “pendente lite,” will not abate the suit. Runnington, 414; I. H. and Mun. 531; Robertson vs. Morgan,II. Bibb; Helm vs. Lindsay, Ib. 535; Jackson vs. Jeffries, I. Mar. 90; May vs. Dupee, Ib. 166.

In this case the trustees conveyed a part of the lot in contest, to the tenant in possession, (who is the defendant,) after the date of the demise. And it is supposed by the counsel for the defendant, that a conveyance to defendant, will abate an ejectment; although, if it be to a stranger, it will not. We can perceive no reason which will justify this distinction. The same principle applies to each and must equally govern both.

It is only because the fictitious demise is considered a real lease, for the purposes of á trial, that a conveyance by the lessor, cannot abate the suit. If the owner of the legal estate lease it to A for a terai of years, a conveyance of the fee to B, before the expiration of the term, cannot affect A’s right. If he be evicted, he may maintain a suit for restitution of the possession. And surely he would have as cleat [82]*82a right to do so, if the conveyance were to B, who' evicted him, and retained the possession, as if it had been to any other person. The court says, in Robertson vs. Morgan, supra, “the action cannot be defeated by any conveyance, subsequently made to the lessor.

Rudd, for plaintiff; Cha. A. Wickliffb, for defendant.

The circuit court having decided conformably to these authorities, the judgment is affirmed.

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Judge Robertson

delivered the opinion of the Court.,

The legal title in ejectment is in the lessor, and the lease is fictitious; but for all the purposes of trying the title, it is considered as real, Hence the death or marriage, or conveyance of the lessor, “pendente lite,” will not abate the suit. Runnington, 414; I. H. and Mun. 531; Robertson vs. Morgan,II. Bibb; Helm vs. Lindsay, Ib. 535; Jackson vs. Jeffries, I. Mar. 90; May vs. Dupee, Ib. 166.

In this case the trustees conveyed a part of the lot in contest, to the tenant in possession, (who is the defendant,) after the date of the demise. And it is supposed by the counsel for the defendant, that a conveyance to defendant, will abate an ejectment; although, if it be to a stranger, it will not. We can perceive no reason which will justify this distinction. The same principle applies to each and must equally govern both.

It is only because the fictitious demise is considered a real lease, for the purposes of á trial, that a conveyance by the lessor, cannot abate the suit. If the owner of the legal estate lease it to A for a terai of years, a conveyance of the fee to B, before the expiration of the term, cannot affect A’s right. If he be evicted, he may maintain a suit for restitution of the possession. And surely he would have as cleat [82]*82a right to do so, if the conveyance were to B, who' evicted him, and retained the possession, as if it had been to any other person. The court says, in Robertson vs. Morgan, supra, “the action cannot be defeated by any conveyance, subsequently made to the lessor.

Rudd, for plaintiff; Cha. A. Wickliffb, for defendant.

The circuit court having decided conformably to these authorities, the judgment is affirmed.

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Bluebook (online)

25 Ky. 81, 2 J.J. Marsh. 81, 1829 Ky. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-trustees-of-bardstown-kyctapp-1829.