Samuels v. Simmons

• Decision Date: 26 February 1901
• Citation: 60 S.W. 937
• Parties: SAMUELS et al. v. SIMMONS. [1]
• Court: Kentucky Court of Appeals

60 S.W. 937

SAMUELS et al. v. SIMMONS. ^[1]

Court of Appeals of Kentucky.

February 26, 1901

Appeal from circuit court, Bullitt county.

"Not to be officially reported."

Action by Lizzie Samuels and another against G. W. Simmons to recover rent and damages for waste. Judgment for plaintiffs for only a part of the amount claimed, and they appeal. Reversed.

J. W Croan, for appellants.

Chapeze & Halstead, for appellee.

WHITE J.

Appellants brought this action for rents and waste on a certain tract of land in Bullitt county; it being alleged that by an erroneous judgment, afterwards reversed, appellee was given possession of appellants' land, and had use of same some 13 months and while thus in possession committed waste,--stating the amount, and in what the waste consisted. The answer admitted possession under the judgment that was afterwards reversed denied the value of the rent as alleged, and denied the waste; and then, as counterclaim and set-off, defendant pleads certain improvements which he avers he made while in the possession of the land. To this paragraph pleading his set-off and counterclaim a demurrer was overruled, and of that appellants complain. By reply an issue was formed as to the improvements, and the case tried before a jury, which resulted in a verdict for appellants for $50. The court then on motion of appellee, adjudged the costs of the trial against appellant, because of a tender or offer to confess judgment which the court determined had been made. After appellant's motion for a new trial had been overruled, she prosecuted this appeal.

The first action of the court assigned as error is the order overruling the demurrer to the set-off and counterclaim. In this action, it seems to us, there was no error. Appellee was, so long as the judgment remained in force and was not suspended by supersedeas, rightfully in the possession of the land, and with a claim of title. He must have in good faith believed it to be his land. His title, as opposed to appellants, had been tried, and he recovered judgment. He, as occupying claimant, was entitled to be paid for any improvement put on the land, to the extent the same increased the vendible value of the land, but not to make appellant a debtor in any event. We are of opinion that the verdict of the jury is against the decided weight of the evidence. The proof of appellee tends to show that he cleared some land built some fencing, and made some changes in the place, but his witnesses do not fix any value...