35 Tenn. 308 | Tenn. | 1855
delivered the opinion of the Court.
This was an action of ejectment brought in the Circuit Court of Jackson, by the defendants in error against the plaintiffs in error, on the 27th of June, 1853.
The plaintiffs below claim under a grant from the State of North Carolina to Stokely Donelson, for sixty thousand four- hundred and sixty acres of land, dated the 28th of August, 1795, and show a connected chain of conveyances from the grantee to John Love, their ancestor.
The defendants set up title to several parcels of land within the bounds of the plaintiffs’ grant, under grants of younger date from the State of Tennessee, coupled with an adverse possession of more than seven years, before the commencement of this action. As respects the lands thus claimed and held by the defendants, a verdict was found in their favor, and no question is made here as to the correctness of the finding of the jury.
But, the bill of exceptions shows, that the plaintiffs, on the trial, offered and read as evidence, the copy of
Upon this point the Circuit Court instructed the jury, that under the act of 1852, ch. 152, sec. 2, an action of ejectment might be maintained by one proving a legal title, against a defendant setting up claim to land under an entry, although he may never have been in possession of the land covered by such entry. And upon this instruction, the question for our determination arises.
The second clause of the second section of the act of 1852, is as follows:
The person actually occupying the premises shall be named defendant in the declaration. If they be not occupied, the action must be against some person exercising acts of ownership thereon, or claiming title thereto or some interest therein, at the commencement of the suit.”
This provision of the statute is very general and comprehensive in its terms. Upon the most restricted construction, it introduces an important change of the law governing the action of ejectment. But taken literally, it would convert the action into an equitable, as well as legal remedy.
In this view, the instruction of the Court was erroneous. Still, however, the error constitutes no sufficient ground for reversing the judgment, as it produced no practical injury to the defendants, the result of the case being precisely the same, as if no such instruction had been given: nor can the rights of either of the defendants, if any they have, under said entry, be in any respects affected by the verdict and judgment rendered in the case.
The judgment will be affirmed.