37 Ark. 542 | Ark. | 1881
opinion.
As shown by the bill of exceptions, which purports to contain all the evidence in the case, the only evidence adduced to prove title in the plaintiff, was the ■testimony of Long.
The deed to her from him, which she relied upon as a ’ part of her chain of title, and a copy of which was exhibited with the complaint was not, it seems, read to the jury, and no mention is made of it in the bill of exceptions.
The copies of deeds, which, either party in an action for the recovery of lands relies upon as evidence of his title, and which the act of March 5th, 1875, requires to be filed as exhibits with his complaint or answer, are no part of the pleadings. Jacks v. Chaffin et al., 34 Ark., 554.
The deeds themselves must, upon the trial when it can Be done, be produced and read to the jury, if not, the next best evidence must be produced.
The evidence being manifestly insufficient to show title in plaintiff to the parcels of land the defendant claimed i® his answer, or to entitle her to a verdict, we have no occasion to notice the instructions. The motion for a new trial was. properly overruled.
But it is a general rule of pleading, and it is so expressly provided by section 4608 Gantt's Digest, that every material allegation of the complaint not specifically controverted by the answer . must be taken as true. The plaintiff should, therefore, have had judgment for the quarter section as to which the answer was silent and the action undefended. She is as clearly entitled to judgment for that parcel as if she had recovered it by verdict, and according to the proper and established practice should have taken judgment by default for it, Thompson v. Kirkpatrick, 18 Ark., 580; Desha's executors v. Robinson, adm’r., 17 Ark., 228; Wheat v. Dotson, 12 Ark., 699.
Except as to the quarter section!, as to which no defense was made by the defendant — the judgment is affirmed; and as to that it is reversed, and the cause is remanded to the court below, with instructions to render judgment in favor of the plaintiff therefor.
