Kennedy v. McElroy

• Decision Date: 03 October 1891
• Parties: Kennedy v. McElroy et al.
• Court: Kentucky Court of Appeals

17 S.W. 202

92 Ky. 72

Kennedy v. McElroy et al.

Court of Appeals of Kentucky.

October 3, 1891

Appeal from circuit court, Russell county.

"To be officially reported."

Action for an injunction by Josephine Kennedy against Frances McElroy, etc. Demurrer to petition sustained. Plaintiff appeals. Reversed.

Bennett J.

By an act of the legislature approved _____ day of _____, 1808 Aaron Stratton and others, and their successors, were constituted a body politic and corporate, to be known by the name of the "Trustees of the Lewis County Academy." The act then proceeds to give said trustees the usual powers as such. It also provided that said trustees were "entitled to locate, survey, and patent six thousand acres of land for the benefit of said academy, on the terms and conditions prescribed in the act entitled 'An act to establish and endow certain academies,' and the several acts amendatory thereto." It also appears that these trustees, pursuant to said act, procured a patent to about 2,500 acres of land, lying in Russell county, which is one of the counties in which vacant land might be appropriated under said act. In 1825 the legislature passed another act authorizing said trustees to sell said land for the benefit of said academy; but said trustees failed to sell or otherwise dispose of said land. And in 1851, there then being no trustees, and the ""academy being dissolved," the legislature passed another act repealing the act of 1825 authorizing said trustees to sell said land, and vesting the same in the county of Lewis for the benefit of the common schools of that county, and authorizing the Lewis county court to sell said land for that purpose, and authorizing said court to make said sale by agent; that the court, pursuant to such authority, did appoint Peter Reffe to sell said land; that he did sell the same; that the sale was approved by the court, and deeds were duly made to the purchasers; that the appellant is the remote vendee of these purchasers of said land, and the appellees are trespassers on parts thereof, cutting, removing, and destroying valuable timber, thereby committing irreparable injury, etc. The appellant's petition discloses substantially the foregoing facts, and the court sustained a demurrer to the petition. The decision of the court on that demurrer is the subject of review. It is alleged, in substance, that neither the trustees appointed, nor their successors, sold nor...