Counts v. Kitchen

• Decision Date: 01 March 1888
• Citation: 87 Ky. 47,7 S.W. 538
• Parties: COUNTS v. KITCHEN.
• Court: Kentucky Court of Appeals

7 S.W. 538

87 Ky. 47

COUNTS v. KITCHEN.

Court of Appeals of Kentucky.

March 1, 1888

Appeal from circuit court, Carter county.

This was a petition in equity by George W. Counts, plaintiff and appellant, against William Kitchen, defendant and appellee for the value of improvements, and to restrain the execution of the writ of possession.

E. B Wilhoit, R. D. Davis, and Thos. D. Theobald, for appellant.

J. R Botts, for appellee.

PRYOR C.J.

Article 1 of the statute in relation to occupancy claimants provides that "if any person, believing himself to be the owner by reason of a claim in law or equity, the foundation of which being of public record, hath, or shall hereafter, peaceably seat and improved any land, but which land shall, upon judicial investigation, be decided to belong to another, the value of the improvements shall be paid by the successful party to the occupant, or the person under whom and for whom he entered and holds, before the court rendering the judgment or decree of eviction shall cause the possession to be delivered to the successful party." Section 2 of the same act provides: "The court in which the judgment or decree of eviction shall be rendered, at the request of either party, shall direct the clerk of said court to issue venire facias to the sheriff of the county in which the land is situated, commanding him to summon a justice of the peace of his county, and also to impanel a jury of twelve discreet and impartial freeholders, not of kin to either party, to meet upon the premises recovered, on a day to be named in the writ," etc. The statute further provides that this jury shall assess the damages, if any, which may have been done the land by cultivation, and unnecessary waste of timber, after suit brought; the rents and profits which may have accrued after final judgment; and the value of the improvements upon the land from which the occupant is to be evicted, to be estimated as of the time the jury is impaneled. The ancestor of the appellee recovered by his action in the Carter circuit court a tract of land from the appellant, who had entered under a junior patent issued to his vendor, and obtained a judgment of eviction. A writ of possession issued upon the judgment, and was placed in the hands of the sheriff, when the appellant, who was still in the actual occupancy of the land, filed his petition in equity against the appellee, in which he claimed compensation for his improvements, and obtained an injunction prohibiting them from executing the writ of habere facias. A general demurrer was sustained to the petition, and the appellant prosecutes this appeal.

All the facts necessary to entitle the occupant to pay for his improvements are plainly alleged in the petition, and the demurrer should have been overruled, unless the failure to ask for a jury, to determine the value of his improvements at and when the judgment was entered, is a bar to the recovery. The first section of the act referred to provides that the successful party shall pay the occupant the value of his improvements,...