Strubbe v. Green , 234 Ky. 384 ( 1930 )

Reversing.

This is a companion case to Green v. Strubbe, 25 S.W. ___, this day decided, and rests on the same facts, as to title to the land. The plaintiffs in that case filed their petition in the McCreary circuit court, on January 26, 1928, to quiet their title to the tract of land; but in that case no recovery was sought except for the land. On April 12, 1928, they filed this action in the Pulaski circuit court to recover against Green the rents of the land from the time he had taken possession of it. The answer of Green and the reply of the plaintiffs were the same as in the other case. The circuit court sustained the demurrer to the plaintiff's reply, and at the conclusion of the evidence instructed the jury peremptorily to find for the defendant. The plaintiffs appeal.

The ruling of the circuit court was rested upon Martin v. Hall, 152 Ky. 677, 153 S.W. 997, L.R.A. 1918A, 1041. This ruling was erroneous for the reasons given in the opinion in the other case this day delivered. The demurrer to the plaintiff's reply should have been overruled, and the peremptory instruction to find for the defendant should not have been given, for the reasons given in that opinion. On the return of the case to the circuit court, the plaintiffs will be allowed to amend their reply if they desire to do so and plead the judgment in the McCreary circuit court case, above referred to, in bar of the defense presented in this action. The title to the land may be only once litigated.

While under section 83 of th Code of Civil Practice, causes of action for the recovery of real property and the rents, profits, and damages for withholding it may be joined in one action, the plaintiff is not required to join them, but may at his election sue in one action for the land, and in another for the rents and profits or damages for the detention. Walker v. Mitchell, 18 B. Mon. 541; Burr v. Woodrow, 1 Bush, 602.

Other questions discussed by counsel are not now considered or passed upon, for these matters have not been decided in the circuit court and are not properly presented on this appeal, which only involves the demurrer to the reply, and the peremptory instruction given the jury. The proof on another trial may not be the same.

Judgment reversed, and cause remanded for further proceedings consistent herewith.