October 5, 2012

Yeizer v. Stone's Heirs, Rockcastle, 1828

YEIZER v. STONE'S HEIRS.--COVENANT.

COURT OF APPEALS OF KENTUCKY

23 Ky. 189; 1828 Ky. LEXIS 63; 7 T.B. Mon. 189

April 26, 1828, Decided

PRIOR HISTORY:  [**1]  Error to the Rockcastle Circuit; Joseph Eve, Judge. 

DISPOSITION: Reversed and remanded.

COUNSEL: Crittenden and Green, for plaintiff; Robertson, for defendants. 

JUDGES: CHIEF JUSTICE BIBB. 

OPINION BY: BIBB 

OPINION
 [*189]  OPINION OF THE COURT, BY CHIEF JUSTICE BIBB.

It seems to this court, that Yeizer was a mere trustee, without any beneficial interest, the friendly agent accepting the deed of trust from Rodham Kenner, for the slaves therein mentioned, for the purpose of executing the uses and trusts in favor of said plaintiffs, "to the best of his discretion." The plea of Yeizer, that said slaves were not the property of the grantor at the date of said deed, but had been previously sold by said Rodham to Lawrence Kenner; that said Rodham had procured the slaves to be run off beyond the limits of this Commonwealth, without the knowledge or consent of Yeizer, and that they had come to the possession of said Lawrence, who held them from Yeizer by a superior title, was a good defense to the action, and ought to have been received under the circumstances stated in the affidavit, although offered after issue joined upon other pleas. It is, therefore, considered by the court, that the judgment of the circuit court [**2]  be reversed, and that the cause be remanded for such further proceedings as may comport with the opinion of this court, herein expressed.

And it is further considered, that the plaintiff recover of the defendants his costs in this court, and in this behalf expended; and it is ordered that Samuel Stone, who prosecuted this suit, as next friend and guardian of said infant plaintiffs below, pay the cost adjudged against the said infants in this court.

The Chief Justice, however, does not admit the plaintiffs ought to be permitted to sustain an action at law upon the covenant of Yeizer, nor does he admit the sufficiency of the averments to show a breach of the trust as undertaken by Yeizer.

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