8 Blackf. 366 | Ind. | 1847
Ejectment. Verdict and judgment for the plaintiff.
The appellant complains that objectionable evidence, to which he excepted, was given, with the permission of the Court, by his adversary to the jury, on the trial of the cause below. On looking through the record, we find the evidence of the appellee, the plaintiff below, — some of it oral, some of it documentary, — embodied in thirteen closely written pages, and at its close the general statement, that, to the whole and every part thereof, the defendant objected and excepted. According to the decision of this Court at its last term in Russell et al. v. Branham et al., following the decision of the Supreme Court of the United States in Camden v. Doremus et al., 3 Howard, U. S. 515, objections to evidence of so general a character will not be noticed.
Another objection taken by the appellant is, that the evidence was insufficient to authorize the verdict; but as no motion for a new trial was interposed, that question is not
On the trial below, the défendant offered in evidence the deposition of John Lail, senior, of the state of Kentucky. It was objected to on the ground of interest in the deponent and excluded by the Court. The ruling upon this deposition raises the only remaining question we shall find it necessary to examine.
This deponent, John Lail, senior, entered the lands in controversy at the land office in Brookville in 1822, in the name of “ John Lail," without the addition of either senior or junior. He never took actual possession of the premises. The patents were issued in 1823, corresponding with the entries, and were received by John Lail, junior, who, in the same year, took possession of the lands claiming title, and continued in their occupancy until 182S, when he sold and conveyed them to Samuel Zook, whose heirs were the lessors of the plaintiff. In 1834, and while Zook was in the actual possession of the lands under his deed from Lail-, junior, Lail, senior, made, in Kentucky, a deed without covenants of these same lands to Benjamin Galbreath, the defendant below. He did not put Galbreath into possession; but in the fall of 1839, Samuel Zook having previously died leaving infant heirs, Galbreath prosecuted, on his own demise, an action of ejectment against them, and obtained possession of the lands, which he retained till the institution against him of the present suit, in 1843, by the same heirs for the purpose of repossessing themselves of the premises in dispute.
To defeat this suit thus instituted against him, Galbreath offered in evidence the deposition of said Lail, senior, to prove that in his entry of the lands at Brookville in the name of “John Lail,” he intended himself, John Lail, senior, and not his son, John Lail, junior, thus proving title in him, Lail, senior, and consequently out of the lessors of the plaintiff
We think Lail, senior, was a competent witness, and that the Court erred in excluding his evidence.
The judgment is reversed with costs. Cause remanded, &c.
The defendant in ejectment may defeat the suit by proving the title to the premises to be in a stranger. See the authorities cited in note 3 to Doe d. Wood v. West, 1 Blackf. 136. — 2 Greenl. Ev. § 331.