
    THOMAS HOLT, survivor, &c. vs. ROBERT TRABUE & al.
    
      On a writ of error to re. verse a judgment of the Bourbon circuit court.
    
    
      17 April, 1818.
    
   Judge Owsley

delivered the opinion of the court.

Holt having brought suit against Trabue’s heirs, and obtained a decree of the court below for the land ⅜⅛ contesti by the process of that court was put in possession of the land. But the cause being brought before this court by the heirs of Trabue, the decree of that court was reversed, and the cause remanded for further proceedings, with directions for restitution qf the possession to be made to the heirs; and the possession being accordingly restored to the heirs, the cause was again, after being fully prepared, brought on to a final hearing, and a decree ultimately pronounced in favor qf Holt for the land.

Hardin and Bibb for plaintiff, Talbot for defendant iq error.

A successful claimant not^be* subjected ¡o the payment of rems or unmake, while ple land was him Pied

Commissioners were then appointed under the occupying claimant law, and having reported rents against Holt, for the time he was in the possession of the land under the process of the court, judgment was accordingly rendered a-gainsthim; and the main question now presented for determination, involves the propriety of charging Holt with those rents.

Giving the law in relation to occupying claimants the most liberal construction ih favor of occupants, we are un-a^e to perceive any principle upon which the successful claimant can be made chargable for rents whilst he may have been possessed of the land.

¶⅛ compel the owner to pay rents for using land properly his own, would be obviously opposed to the plainest princi-pies of common justice; and as the act contains no provi-s*on exPressly making such a liability, the successful claimant cannot, upon any rule of construction, be subjected to the payment of rent.

Because, therefore, judgment was rendered against Holt for the rents, it must be reversed with cost, the cause remanded, and the report of the commissioners corrected by striking from it so much as relates either to improvements made by Holt, or rents charged against him, and such other proceedings had as may be consistent with this opinion.  