Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-19

OFFICIAL.

&
OFFICIAL
OPLniOns OF the Supreme Court Of IN
state Of Tennessees a. Knoxville, Ser
temOer Terms 1859.
EeystOn ct 81 " Wear ct al
This IS an action of ejectment in which the plai
TINS below insist they have shown title in theI
serves TO the land IN dispute in two modes First,
regular chain Of eonysyantes from the State, an
fnext, By placing the defendants in such an attitud
SIN relation 70 this land towards themselves as tn,
sthey are eStopped to deny their title.
The facts upon the question of estoppel are these
+ Adam DunnOody, &C \ very early day resided Jipo
the land for several years, and died leaving fou
children to-wit, William, James, Margaret and Esthei
Previous 70 his death he made will dated the lit
of June 1874 IN which he devised this land to bis so
William William died iatsstots unmarried and withou
ISSUE and the land descended TO his sisters MsrgarG
and Esther, and 70 bis brother James, as his heirs
aW. Esther married John Benham, and Margzre
3on the 18th Of December, 1910, married Hugh Weai
0n the 18th day Of October, 1916, the said Benhau
Hugh Wear and James Dunnoody, for the considers
tiOn Of Sl.l40 co. conveyed this land BY deed in fe
slmpe, with covenants ofgeneral warranty, OJoshu
Royston, who, about that time entered into posses
sion of the land claiming it as his own, and cor
tinued so to hold and claim it till his death and tn
defendants below. the tenants in possession who
his heirs at law, have held and claimed ever since
This deed was duly proved at the July Session, 1871
in that County, On the 18th of October of the sam
year. In it, the said Benham, Hugh Wear and jane
SDunnOody are described as the heirs of William
DunnoOdy deceased, and legstees to Adam DunnOOd]
deceased. Margaret, the wife of Hugh Wear, anG
Esther the wife of Benham, did not units in saiC
bleed, and were not parties TO it. The said Marga
ret died the 18th Of March, 1925, and the said Hugh
4Wear in September, 1856. The plaintiffs are the
children Of Hugh and Margaret Wear, and com
menced this action Of eectment on the Sd Of March
of the said tract Of land the heirs at law of theiI
mother, the said Margaret
SO far as 1t may be material to this controversy
we are warranted in assuming. not only from the
Facts but because the jury have so found under pro
per Instructions from the court, that Hugh and Mar
garet Wear had issue of their marriage prior TO the
execution of the deed to Joshua ROystcn-
s II is true there may be no very direct evidence
that Joshua Royston held under this deed. But still
the proof that he did is very strong, and we are
sati fed he did Ii is not attempted to show, or pre-
tended that he held under any other title. In addi
ZION to the fact that he took possession of this land
= about the date Of the deed, he Is proved to have
stated that he had bought and lived the land that
Adam Duunoody died on. The jury under proper
Instructions from the court, have also found this
matter in favor of the plaintiffs, and we think we're
well warranted in so doing. Indeed, any other con
clusiOn would be unreasonable.
Upon these facts we think the defendants below
were estopped to deny seizure of William DunnOOdy,
7he being the common source of title 70 all the par
dies; and that the circIt Judge was correct in so
holding. How would the case be between John
Benham, Hugh Wear and James DunnOody, upon
the side, and Esther and Margaret the wives Of
the said John and Hugh upon the other? Could the
Former controVert the title of the latter? Certainly
not The said Margaret, Esther and James had en-
tered into this estate claiming under William Dun
3noody as his heirs and were tenants in common I;
and the said John and Hugh held interests as hus-
bands in right of their wives. Joshua Royston and
his heirs are in better situation than John Ben
ham, Hugh Wear and James DunnoOdy. The said
Joshua is purchaser of their title and priVy in
tate only and he and his heirs are oSropped also by
reason Of the estOppel OF the said John and Hugh
and James, under whom they claim; and the plain
tiffs az the heirs of said Margaret entitled TO
4 the benefit of this estoppsl Perry VS.. COlhoun,
Hump. 5Sl; ROchell VS. Benson, Hunt Co.'S lessee
tNeigs' Rep 81; 2 Greene Elk sec. 305. Smith vs..
gBurts & Woodward, 3 Johns. l75. jackson e1 dem.
Hill vs.. Streeter, CoWen, go. .-.
This being so, it is unnecessary to inquire whether
1.-THE plaintiffs have made out, also regular paper
ttle to go into the consideration of the various
COLLECTIONS made TO the reading of the grants and
deeds in dersigning title to Adam DunnOody, being
satisfied as we are that the copy of the deed from
sJohn Benham. Hugh Wear and James DunnoOdy TO
Joshua ROystOn, properly admitted and being
further satisfied, that the was submitted to the
Jury by the Circuit Judge, upon the force Of said
decd and of the estOppel, and was considered by
deeds could nos possibly have prejudiced the de-
PENDANTS.
j We may remark, however, that in our EXAMINE
tion of the case we see very little reason to call IN
question the admissibty of any Of said papers, I'M
Hess it be the copy of a single deed
1t is equally plain that the plaintiffs were not
fpFecuded from a recovery either by the statute Of
Limitations or lapse of time; and that the Circuit
tJudge did not in his instructions TO the jury
upon this subject
q As decisive of this question, we need only refer
to the cases of McCorry vs. MeigS' heirs, Hum,
267; and Miller vs. Miller, Megs R., 4s4 see also,
Guion vs.. Anderson, Hum, 29s, aud IL Howard U.
IS. Rep $50.
4 The declaration was demurred to, and the demur-
rer OVerrued by the Circuit Court 1t insisted that
lin this there was error, for which the Judgment
tshould be reversed. .-.
The ground of the demurrer was, that the plain
lifts claimed an undivided share, interest in this
band but in the declaration, failed state the ex-
tent of that interest whether third or fourth or
ANY other particular share. 1t is true, the act
sof 1852 CHI l52, sec. f. requires this to be done.
But by the same act the jury in their verdict, are
required specify such share interest and to de-
scribe the same with convenient certainty This Is
well done in the verdict in this case and the obec
Elton has now become one of mere form By the 4th
and 9Th sections of the same act, all writs of error
for matters of form abolished; and any defects
Tor mperfections in matters form found in the re-
fcord after judgment rendered, may be rectiied and
amended By the Court in which the judgment Is
rendered tn Court TO which it shall be removed
Sby writ Of error, or appeal if substantial justice
require it; and if the amendment be in afdrmanee
Sof the Judgment,
This cures the difficulty and the objection falls to
THE ground.
] Upon the whole, we see no error in this record
4 and affirm the judgment WEIGHT.
A true copy. Test c. W. NELSON, Clerk.