Lyon v. Hanway

7 Ky. 512

• Court: Court of Appeals of Kentucky
• Decided: April 11, 1817
• Status: Published

Opinion

OPINIO.⅜ of the Court, by

Judge Owsmíy.

Before the passage of the act of'1812, amendatory to the occupying claimant law, a decree had been pronounced against the plaintiffs in error in favor of the defendants, for land of winch the plaintiffs Were possessed, and upon which they had made considerable improvements.

From that decree the plaintiffs appealed ; and at the passage oí the ac t the appeal was depending in this court ; and at a subsequent term, although the decree was reversed on account of the manner the court below directed the claim of the defendants to be surveyed, they succeeded in recovering ail the improved land in possession of the plaintiffs.

The cause haying been remanded to the court below, and a final decree entered against the plaintiffs, commissioners were appointed to assess the value of the improvements, &c. according to the provisions of the act of 18! 2, as well as that to which it is amendatory; and the commissioners having1 made report according to both acts, the court rendered judgment under the act of 1797; and to reverse that judgment this writ of error has been prosecuted.

We are of opinion the judgment should have been rendered under the act of 1«12. Although a decreé had been pronounced against the plaintiffs’ right prior to the passage of the act, yet as an appeal from that decree was then pending, in legal estimation the decree itself was thereby suspended, the right still litigated, and the original suit undetermined.

Until a decision of the appeal, therefore, the land in contest cannot with any propriety be said to have been proreii to belong to the deferidapts ; and as that decision took place after the passage of the act of 1812, according to its plain import the right of the plaintiffs to compensation for improvements, &c. must be determined by its provisions.

The judgment of the court below must, therefore, be reversed with costs, the cause remanded to that court, and judgment there entered according to the principles, of this opinion.

A petition for rehearing was presented ; which, upon consideration, was overruled by the court.