McDowell v. King
Court of Appeals of Kentucky
Ejectment, From the Circuit Court for Boone County. Ejectment lies only against a tenant in actual possession. Pl’tf cannot, by electing to be disseized, make a party who merely claims the land, without entry up on it, a trespasser or disseizor, so as to maintain, the action against him.
1Opinion of the CourtChief Justice Robertson
The plaintiffs complain, that the Circuit Court erred in rendering a judgment in favor of the defendant King, on a verdict of not guilty, in an action of ejectment. And they argue that, although there is no evidence that King was in the actual possession of the land sued for, or of any portion of it, yet, as he claimed it and lived near it, they might elect to be disseized, and thus maintain their action to try the titles.
But it seems to us, that the doctrine of disseizen by election has never yet been carried so far; and that no one can, by any legal fiction,, be deemed a disseizor who was…
2Cited by1 opinion
- Charter Oak Life Insurance v. CummingsSupreme Court of Missouri · 1886