Morgan's heirs v. Fox's heirs

7 Ky. 565, 4 Bibb 565, 1817 Ky. LEXIS 65

• Court: Court of Appeals of Kentucky
• Decided: June 7, 1817
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Boyie.

This is a contest for land. The appellants holding the elder grant, the appellees filed their bill in equity, rlaimingthe land as heirs to Arthur Fox, deceased, in virtue of an entry made in his name the 7th of July 1785 ; but which was not surveyed until some time after the period allowed by law for making surveys had expired. The court below decreed the land to the appellees, from which this appeal is prosecuted.

It is clear that the decree cannot be sustained :

1st. Because it was necessary for the appellees to have shown themselves to be the heirs of Arthur Fox, to entitle them to the land; and they have not taken any proof to establish the fact, although the defendants, by their answers, expressly controvert their right to recover in every respect.

ad. Because the period allowed by law for making surveys had expired before the survey of the entry in question had been executed ; and the appellees do not show that the circumstances under which the survey was made, would save the right of making the survey in this case, after that period had Expired. It is true that the appellees allege that they were infants, or femes covert, at the time of their ancestor’s death, and continued to be so until after the survey was made ; but it does not appear when their ancestor died, and consequently it cannot appear that the claim had not become forfeited for a failure to make the survey before his death.

Decree reversed with costs, and the cause remanded, that the bill may be dismissed with costs.