Sellars v. Sutton , 1868 Ky. LEXIS 484 ( 1868 )

Opinion oe the Court by

Judge Bobertson:

No platt being exhibited there is much difficulty in applying the testimony as to the possessory claim of the appellant Sellars. Whether his possession was as joint tenant, and therefore not adverse in law, or was in severalty and therefore apparently adverse in both law and fact, the record does not clearly show. The jury ought to have been permitted to decide that question.

On the facts appearing in the record the circuit court should not assume that Sellar’s possession was not in law, as well as in fact, adverse for 15, or even 20 years. And therefore there is apparent error in the instruction excluding that question from the consideration of the jury.

Oonsequently for this only apparent error, the judgment is reversed and the cause remanded for a new trial.