23 Tenn. 46 | Tenn. | 1843
delivered the opinion of the court.
This is an action of ejectment, in which the lessor of the,
At the March term, 1837, of the circuit court of Gibson county, JohnHopkins, the defendant in ejectment, filed his petition, alledging that he was the owner of the one undivided fourth part of said tract of land, and the heirs of Peter Toel of the balance, and asking to have the same laid off to him in severalty, which was done by metes and bounds, under a commission issued by order of said court upon said petition on the 22d day of June, 1837. On the 6th day of July, 1840, Hopkins purchased the tract of land at a tax sale, and took a sheriff’s deed for the same. This sale was made upon a report which is not made according to law. Upon the trial, the court charged the jury, “that inasmuch as the defendant had produced no conveyance from Toel’s heirs for the locator’s interest, that though he had an equitable title, yet he could not avail himself of it on this trial; and the circumstance of the circuit court having-recited in the decree of partition, that it appeared to the satisfaction of the court that the defendant was entitled to a portion of the land in fee simple, could not avail him,” and that he acquired no title by virtue of the sheriff’s deed upon the tax sale.
A verdict and judgment were rendered for the lessor of plaintiff, upon which defendant prosecutes his writ of error. That
Upon the whole, we are of opinion, that the defendant is without defence in the action, and has no remedy but in a court of chancery. Judgment affirmed.