33 Miss. 117 | Miss. | 1857
delivered the opinion of the court.
The plaintiff below, brought this action in the Circuit Court of Hinds county, to recover a tract of land in the possession of the defendant. The jury having found a verdict for the plaintiff, the defendant moved the court for a new trial; and upon the overruling of the motion by the court, he took his bill of exceptions, embodying the evidence, and thereupon prayed an appeal to this court.
The errors assigned will be noticed in the order in which they have been argued by the appellant’s counsel. It is first said that the court erred in permitting the plaintiff to amend his complaint. Aside from legislation on this subject, it has long been the settled practice of the courts, to allow under proper restrictions, such amendments of the pleadings of the respective parties, as were necessary to secure a trial upon the true merits of the controversy. The complainant, in describing the land in controversy, located it as part of the northwest quarter of a certain section, when it was part
We are therefore of opinion, that the court committed no error on this point.
It is next assigned as error that the court below erred in overruling the defendant’s motion for a new trial; and, under this general assignment, various questions come up for consideration. First, that the court erred in admitting the deposition in fart of Geo. W. Cooper to be read to the jury, on the ground, that he was from interest incompetent as a witness. It appears that the plaintifl purchased the land from this witness, and took from him a deed containing covenants of warranty as to the title, but it appears by the deposition itself that the witness was released from his covenants before testifying. It is, however, said that it does not appear that the release had ever been delivered to the witness. On this subject, it will be sufficient to remark, that the release itself appears in the deposition, and this, in the absence of a showing to the contrary, would be held sufficient proof of its due execution. The important question in such case is, whether the witness, at the time of testifying, was fully impressed with the belief, that he was in no manner liable upon his covenants. The main object sought by making him competent as a witness was to make him credible as such, so that his testimony might receive full weight from the jury. It appeared from the deposition that the defendant was at one time in possession of the land as the tenant of G. W. Cooper, and the object of this proof was to meet the defence set up under the Statute of Limitations.
The proof was certainly competent, as its tendency was to negative the allegation of an adverse possession, and to admit the title of the landlord.
It only remains to notice briefly the evidence introduced in regard to the redemption of the land, on the part of the plaintiff. One witness proves, that the defendant stated that he had redeemed the
It is again said that the return on the execution under which G. W. Cooper purchased the land, when it was sold as the property of the defendant, shows that one Walker bid off the land. The return does not transfer the title. It is at most only evidence that Walker was entitled to demand a deed from the sheriff, and he could, if disposed to, assert his right, force the sheriff (or Cooper, holding the deed from the sheriff), to convey to him, Walker. But in the absence of a showing that his bid was consummated by a deed, it will be presumed, after this lapse of time, that he transferred his bid, or did some act renouncing it.
We will notice another point, which was omitted at its proper place. The deposition of Cooper was taken before the amendment of the complaint was made; and it is therefore said, that it relates to a subject not then in litigation.
There is no mistake as to the case in which it was taken, and it embraced the land about which the trial was had. This is sufficient, as it is not pretended that the defendant was taken by surprise.
Judgment affirmed.