Todd v. M'Gee

5 Ky. 350

Opinion

OPINION of the Court, by

Ch. J. Boyle.

-The; ♦nly question in this case is, whether where the phiintiü; in ejectment declares for a several interest irr the wboleig land In controversy, he will, on.shewing himself entitle^ to an undivided part have a right to recover pro tanto f

Tbii question occurred in the case of Davis vs. Whiteside, (vol. 1, 513) and was decided in the affirmative. That decision seems to he fully warranted by inties there cited and relied on- — See Burges vs. Perries 1 Burrows 326 — Ablett vs. Skinner, 1 Siderf. 229. The instructions therefore given by this court to the jury in this case, that the plaintiff on evidence of title to an undivided third was not entitled to a verdict fat so much, is erroneous.

Wherefore it is considered by the court, that the judgment of the circuit court be reversed, that the ver-diet of the jury be set aside, and that the cause be remanded to said court for new proceedings to be had therein, not inconsistent with the foregoing opinion, &c«