#### DEN. EX DEM. WILLIAM P. WAUGH AND RICHARD CHOATE *vs*WILLIAM ANDREWS.

Where, in an action of Ejectment, the defendant has entered a disclaim-eras to a part of the land described in the plaintiffs’ declaration, that part is not within the issue submitted to the jury, and evidence of title to it is therefore irrelevant.

Where deeds, records, &c. are referred to and make a necessary part of the case transmitted to the Supreme Court, it is the duty of the appellant to see that they accompany the case. Otherwise the Court cannot determine that there is any error in the opinion of the Court below, and the judgment will of course be affirmed.

The case of *Stewart*v *Garland,*1 Ired. 470, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Ashe County, at the Spring Term, 1841, his Honor Judge Manly presiding. The following is the case transmitted to the Supreme Court. This was an action of ejectment, wherein both parties claimed title under William Edwards and admitted the title to be out of the State. As evidence of title, the lessors of the plaintiff introduced certain records, copies of which are hereunto annexed, and then attempted to prove that the land was set up by the Sheriff of Ashe and sold to them as the last and highest bidder. In respect to this fact, there was a conflicting testimony: two witnesses statiug that they thought it was sold, and the Sheriff and several others stating that it was not sold. A deed from John Gamble, Sheriff, was also exhibited, a copy of which is made a part of the case; but it did not appear that it included any part of the land contained in the declaration. It was admitted that the defendant was in possession at the time of bringing the action.

The presiding judge instructed the Jury that the plaintiff’s right to recover depended upon whether he had shewn title to the premises — that the levies, which described the land as “ One hundred acres on both sides of Little River ” and *76nothing more, were insufficient of themselves and needed aid from parol testimony to identify the land. If the Jury had heard testimony to satisfy them that the land described in the declaration was the land levied upon, then the levies were sufficient. With respect to the other levies, the Court instructed the Jury, that in law they were sufficient, provided they were satisfied that the land in question was included by the description. The Court further instructed, the Jury, that if the levies or any of them were sufficient under the rules laid down, they would proceed to enquire whether the land was sold, and sold to the lessors of the plaintiff — that if the Sheriff, having process for that purpose, set up the land and sold it to them, the title passed and they should find for *the*plaintiff. But if the land had not been levied on, or, being levied on, had not been sold to the plaintiff ?s lessors, they would find for the defendant.

When the defendant offered John Gamble as a witness, he was objected to on the-part of the lessors of the plaintiff, on the ground that he had joined in a deed, a copy of which is herewith sent, to a man by the name of Woodruff, and Wood-ruff had conveyed to the defendant. But the objection was overruled by the Court.

In the progress of the trial the lessors of the plaintiff were proceeding to shew title to a parcel of land of 25 acres contained in their declaration, and as to which the defendant had heretofore with leave of the Court entered of record a disclaimer. But the evidence was stopped by the Court.

The Jury found for the defendant, *and from the*judgment pronounced thereon, the plaintiff appealed.

The deeds and records referred to in the case were not sent up.

No counsel appeared fop the plaintiff in this Court.

*Boyden*and *Mendenhall*for the defendant.

Ruffin, C. J.

There can be no doubt of the correctness of the ruling of his Honor respecting the tract of land which the defendant disclaimed. Being disclaimed, it was not within the issue which the Jury was trying, and therefore evidence of the title to it was irrelevant.

*77The Court is also obliged to affirm the judgment, not with standing the exceptions of the plaintiff to the other matters, which occurred at the trial. In the first place, it is stated in the record as a fact, that it did not appear that the deed from the Sheriff to the lessor of the plaintiff included any part of the land contained in the declaration. Of course it is indispensable that the plaintiff should show that his deed covers the premises claimed by him ; and if he does not, the verdict was properly rendered against him for that reason, and all errors committed by the Court on other points become immaterial.

In the next place, howevjer erroneous the decisions of the Superior Court may have been upon the other points stated in the record, this Court finds itself unable to correct or even examine therp. The case states, that transcripts of certain records were read in evidence, and also the deed of the Sheriff to the lessor of the plaintiff, and a deed from Gamble to Woodruff; and that on the effect of those documents the presiding Judge delivered}. his opinions as set forth, and that the appellants excepted thereto. The case has not set out the substance or contents of those documents, but states that copies of them are annexed to the exception as part thereof, when in fact no such copies are annexed orotherwise appear in the record. Those papers are absolutely necessary to enable us to perceive, whether the construction placed on them, and the effect given to them on the trial were, in our opinion, proper or improper. Indeed, without them the case is not intelligible, and it cannot be seen what were really the points that were decided. It is the duty of the appellant to make out a case of error in the record ; and, unless he does, the judgment is of course affirmed. *Stewart*v *Garland,*1 Ired. 470. This is the second term since the trial, and, as the appellant has taken no steps in the matter, the Court must, on the motion of the appellee, decide on the record, as it is, that the judgment be affirmed.

Per Curiam. Judgment affirmed.