
    McDowell et. al. vs. King.
    [Mr. Owsley for plaintiff: Messrs. Morehead and Brown for defendants ]
    Ejectment,
    From the Circuit Court for Boone County.
    
      April 13.
    Ejectment lies only against a tenant in actual possession. Pl’tf cannot, by electing to be disseized, make a party who merely claims the land, without entry up on it, a trespasser or disseizor, so as to maintain, the action against him.
   Chief Justice Robertson

delivered the Opinion of the Court,

The plaintiffs complain, that the Circuit Court erred in rendering a judgment in favor of the defendant King, on a verdict of not guilty, in an action of ejectment. And they argue that, although there is no evidence that King was in the actual possession of the land sued for, or of any portion of it, yet, as he claimed it and lived near it, they might elect to be disseized, and thus maintain their action to try the titles.

But it seems to us, that the doctrine of disseizen by election has never yet been carried so far; and that no one can, by any legal fiction,, be deemed a disseizor who was never, in fact, seized; or be converted into a trespasser by merely holding a claim to land, which does not, in any ’ manner, obstruct the right of entry or of occupancy, by any other claimant. We had supposed that, to maintain an ejectment against a party, some proof of his possession in fact of some part of the land, is indispensable.; and such is the law.

Wherefore the judgment is affirmed.  