Innis v. Crawford

7 Ky. 241, 4 Bibb 241, 1815 Ky. LEXIS 132

• Court: Court of Appeals of Kentucky
• Decided: November 9, 1815
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Boyle.

This was an action of ejectment. The declaration is upon a joint demise by three lessors, who bn the trial appeared to be tenants in common, and not joint tenants. The court below, on the motion of the defendant* instructed the jury that the evidence did not support the declaration ; and the question now is, whether this instruction is correct or not ?

The correctness of the instruction is unquestionably established by the uniform current of authorities — 2 Wilson’s Rep. 232 — Run. upon Eject. 22¾ — -2 Bac. Abr. 428, and the numerous cases there cited.

The reason assigned for the doctrine is, that tenants in common have several titles ; the freehold is therefore several; and if they are disseised, they are put to their several actions ; and as the lands of tenants in common are to be considered as different estates, depending upon different titles, the plaintiff cannot recover upon their joint lease. Besides, the plaintiff (as it is held) must, to make out his title, prove that each demised the whole, otherwise he does not sustain his declaration ; and the disclosure of the tenancy in common proves the contrary : for as they have different titles to a moiety only, they could not each of them demise the whole. This reasoning is no doubt in a great degree technical, but it is not entirely without foundation in the principles of law; and although it may not in some respects be perfectly satisfactory, yet we do not feel ourselves at liberty to depart from a doctrine so long settled and so firmly supported by an undeviating course of authority.

Judgment affirmed.