Walden v. The Heirs of Gratz

Marshall, Ch. J., delivered the opinion of the court, and, after stating the facts, proceeded as follows :

The act of assembly, on which the opinion of the court below, on the' first question, was given, is entitled, “ An act concerning champerty and maintesaneé.” It enacts. “ that no person purchasing, or *296 procuring an interest in any legal or equitable claim to land held, &c., shall be precluded from prosecuting or defending said claim, under such purchase or contract; neither shall any suit, or suits, brought to establish such purchase, or make good the title to such claim, be considered as Coming within the provisions, either at common law or by statute, against champerty or maintenance,” «fee. This court is of opinion, that this statute enabled the lessors of the plaintiff to maintain a suit in their own name for the lands conveyed to them, and that there is no error in«this instruction of the circuit court;

On the third question the circuit court instructed the jury that an adverse possession under a survey, previous to its being carried into grant, could not be Connected with a subsequent possession, blit that the computation must commence from the date of the patent. In giving.this opinion, the court unquestionably erred. No principle can be better settled than that the whole possession must be taken together.

The counsel for the defendants in error have endeavoured to -sustain this opinion by a construction of the statute of limitations of Kentucky. They contend, that after the statute has begun to run, it stops, if the title passes to a person under any legal disability, and recommences after such disability shall be removed. This construction, in the opinion of this court, is not justified by the words of the statute. Its language does not vary essentially from the language of the statute of James,.the construction of which has been well settled; and it is to be construed as that statute, and all other acts of lbni *297 tation founded on it, have .been construed. This court is, therefore, of opinion, that there is error in the instruction given by the circuit court to the jury o n the third prayer of the plaintiff in error.

a It has been contended by the counsel for the plaintiff, that there is also error'in the judgment rendered against Joseph Day by default; but of his case the court can take no notice, as he is not one of the plaintiffs in error, and the judgment rendered against him is not before us. The judgment must be reversed for error in the directions of the court to the jury on the third point, on which instructions vere given.

Júdgment. This cause came on to be heard on the transcript of the record, from the circuit court for the district of Kentucky, and was argued by counsel. On consideration whereof this court is of opinion, that there is error in the proceedings and judgment,, of the circuit court in this, that the judge thereof directed the jury that the tenants in possession could not connect their adverse possession previous to the date of the patent, under which they claimed with their ad- ' verse possession subsequent thereto, but in thé length of time, which would bar the action could compute that only which had passed subsequent to the emanation of their grant. Wherefore, it is considered by the court, that the judgment of the .cir *298 euit court be reversed and annulled, and that the cause be remanded to the circuit court, with direct tióris to award a new trial therein.

Judgment reyersed.

a Vide 4 T. R.

300. Doe, ex dem. Durouse, v. Jones.