27 Tenn. 663 | Tenn. | 1848
delivered the opinion of the' court.
The tract of land in controversy in this action, was granted by the State of Tennessee to the heirs of Henry Haws Story, in consideration of military services rendered by Jiim to the State of North Carolina during the revolutionary war, by grant bearing date the 28th day of August, 1822, for 640 acres.— Henry Haws Story died without issue, many years before the issuance of said grant, leaving several brothers and sisters surviving. Sarah T. Saunders, one of the lessors of the plaintiff, is the daughter of William Story, who was the brother of said Henry H. Story; and the defendants to the.action, now plaintiffs in error, are the children and heirs at law of Edward' Story, son of James Story, who was also a brother of said Henry H. Story. About the year 1830, said Edward Story removed with his family to Madison county, in which said land is situate, and settled thereon; and remained in possession of the same until his death, which happened in the year 1839, and after his death the possession was continued by the plaintiffs in error up to the institution of this suit, which was on the 11th day of April, 1842. On the trial in the circuit court, verdict and judgment were rendered in favor of the lessors of the plaintiff, to reverse which the defendants prosecute an appeal in error to this court. The errors assigned and relied upon, are assumed to be in the charge. of his Honor, the circuit judge, to the jury; and in the admission and rejection of evidence in the progress of the trial in the court below.
1. The defendants offered Gabriel Davie as a witness on the trial of the case, and proposed to examine him; and his competency being objected to, he was sworn on the voir dire, and stated, that he had purchased 120 acres of the land in controversy in this action, and was in possession of part thereof; but whether the purchase was before or after the institution of this suit, he did not know; whereupon the court held that he was
2. The defendants offered to prove, by parol evidence, that the tract of land in question in this action, had been sold for taxes due theron, that the order of sale and sheriff’s return on the same were not to be found; and that Edward Story, the father of defendants; had redeemed said tract of land from the purchaser' at the tax sale in the year 1830. All which, being objected to, the court refused to admit. In this we think there was no error. We express no opinion at present upon the question, whether or not the loss of records, deeds, or other written instruments, constituting the evidence of title to real property, may be supplied by parol evidence on the tidal of an action of ejectment in a court of law. It is sufficient to sustain the decision of the circuit court upon this point of the case, that the facts proposed to be proved, could have been of no avail to the defendants. It does not appear, from anything in the record, that a sheriff’s deed, in pursuance of the alleged sale, was ever executed to the purchaser; neither does it appear that any transfer of the supposed interest of the purchaser at the tax sale was made to said Story. Admitting the facts, therefore, to be as proposed to be proved, no title whatever to the land in dispute was communicated either to the purchaser or to Edward Story, which could have furnished any ground of defence to the action, or interposed any legal obstacle to the recovery sought by the lessors of the plaintiff.—
3. The defendants offered to prove that Mary Hagan, a witness for the lessors of the plaintiff, had stated, before giving her deposition, that she had an uncle by the name of Henry Haws Story, but the court refused to admit the evidence.' It appears from the evidence in the record that said Mary Hagan is the daughter of James Story, above mentioned. Her deposition had been taken by both parties in this suit — first by the lessors of the plaintiff, and afterwards by the defendants. In her first deposition she stated that her father had but one brother whose name was George Story. In her last deposition she stated that she had understood from her family relations that she had an uncle named Henry Haws Story. The deposition of said witness having been taken by both parties, she was made equally the witness of both, and therefore it was not competent to either party to impeach her credibility. But again, had the witness stood in such relation to the defendants as would have entitled them to assail her credit, by proof of previous contradictory statements, such evidence would have been inadmissible, unless an opportunity of explanation had first been afforded her, which was not done in this case. And if, as suggested by one of the counsel of the defendants, the object of the evidence was to corroborate the statement of the witness contained in her ■ last deposition it was inadmissible for such purpose. In 1 Starkie’s Evidence 30, it is said: “It seems to be the better opinion that a witness cannot be confirmed by proof that he has given the same account before, even although it has been proved that he has given a different account, in order to impeach his veracity; for his mere declaration of the fact is not evidence.” And although, Under special circumstances, exceptions to this rule have been admitted, the case under consideration does not form one. There is no error, therefore, in any aspect of this point.
5. The court, in reference to the statute of limitation, instructed the jury as follows, viz: “If you shall be of opinion that Edward Story was one of the heirs of Henry Haws Story, he shall be held to have entered under an assurance of title within the meaning of the statute. But if after taking possession, or at the time, he set up an exclusive right to the land in question, or such a right or claim as excluded the right of the plaintiffs, or did other acts amounting to an ouster of the plaintiff, holding a continued possession for the period of seven years, then the plaintiffs right of action would be barred, and they would not be entitled to recover any portion of the land in this action. If the jury should be of opinion that Edward Story was not one of the heirs of Henry H. Story, then the statute of limitations will only pro
The judgment of the circuit court will be affirmed.