Whitley v. Shirley

10 Ky. 131, 3 A.K. Marsh. 131, 1820 Ky. LEXIS 197

• Court: Court of Appeals of Kentucky
• Decided: December 7, 1820
• Status: Published

Opinion

The Chief Justice

delivered the opinion.

This is an appeal taken by the defendant from a judgment for the plaintiff in a caveat.

Both parties claim the land, which is the subject of controversy, in virtue of certificate for actual settlement, and granted by the county court of Warren. The validity of the plaintiff’s title is necessarily the first subject of enquiry; for the rule has been long settled, that the plaintiff in a caveat, as well as the plaintiff in every other case, must recover upon the strength of his own title, and not upon the weakness of that of his adversary. .

The plaintiff claims under a certificate granted, not to himself, but to William Smith, and he asserts his title as the assignee of Smith. To support his title, therefore, it was evidently necessary that he should have produced an assign-rrient Tons Smith; but there is in the record no such an assignment, nor any attempt to account for its absence. Without enquiring, therefore, whether the certificate is valid or not, the plaintiff’s title must be deemed radically defective.

The judgment must therefore be reversed with costs, and the cause remanded.that the caveat may be dismissed with cost.