Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-29
Tbos. praper eft al. VS.. Juo. NJ STANLEY.


In ejectment, it is error to admit evidence OF
what deceased person stated, before pro-
cessioning jury, as to the locality of corner,
without proving that the provisioning was
regularly instituted, and between the same
parties, and that 1t was made under oath, or
that the jury were on the premises or at the
corner in question.
The court does not hold, that with all these
requisites, the evidence would be admissible.
The admission of testimony, that deceased
person stated, as to the locality of corner,
that he, as agent of the former owner, made a
deed for the land, and made it to particular
spot, as the corner, was held to be error for
want of proof of knowledge of the corner, and,
also. because it is cOntradicting the deed made
by the declarant and because the party in in
terest. is not shown to have been present.
Ejectment from the Circuit Court of
Knox county, J. P. Swami, j., presiding.
Geo. Andrews for plaintiff, cited Phil. on
Ev., Cow. and Hills notes, PIP. II, 529,
534. NJ. L. Hall with him.
Jas. r. Cooke for defendant, cited Nc
Cloud VS.. Mynatt, Col. 165; Beard vs..
Talbot, Cooke, 142; Holland VS.. Over
ton, 4 Yerg. 1876; Green on Ev. SS297,
300.
OPINION.
The ruling of the Circuit Court in ad-
uniting the testimony of Mynatt, that
Goss, who was dead, and who had been
examined, as a witness before process
siOning jury, said to that jury, that Mar
tins corner was on POtter's Knob, that
he was not present when the corner was
made, that Nelson's corner was at the
pines in the glade on the other side of
'Mitchell's Knob, and in admitting the
testimony of VIM. Smith, that "Goss
said he as agent made the deed to the top
of Potter's and Mitchell's Knobs and that
Martins corner was on Polter's Knob, " is
error.
An action of ejectment was commenced
by the plaintiff in error against defend
ant in error, in the Circuit Court of Knox
county, to the June Term, 1860, for land
embraced in the following boundaries:
Beginning on the south bank of Bull Run,
Moses Martins corner, thence with said
line to the top ofthc Brushy Valley Knob
10 a stake; thence down said Knob with
the extreme height 10 stake, Nelson's
corner thence with said line TO large
water oak on the south bank of Bull Run,
Nelson's corner; thence up said creek as
it meanders to the beginning station. Yer
dict and judgment in the Circuit Court for
defendant, and an appeal to this court
The question is one of boundary, the OBJ
jective points being the boundary and
corner on the top of 'sthe Brushy Valley
Knobs" There is much proof in the
record as to what are the Brushy Valley
Knobs. Some witnesses fixing by repu-
tation that title, as defendant insists, to
the range of hills called Potter's and
NLitchel's Knobs, and others, as plaintiff
insists, locating them as between the last
named hills and Copper Ridge, and be-
You'd said hills, from the beginning cor
ner of the tract embraced in the bOunda-
Ties set out in the deed from Avis by his
Attorney in fact, Goss, to Thos. Draper,
of June Is. 1929.
On the trial Of the cause the plaintiff
was permitted over the objection of the
defendant to introduce the testimony re-
cited above.
The testimony Of Mynatt was incom-
petent, because he, GOss, was not an act
or; be was not the surveyor who estab-
lished the corners, nor was he present
when they were established. He does not
show that he was even at the corners, or
had them pointed out to him by any per-
sons, whose declarations are competent
under the law. Nor do his declarations
show any knowledge, from any source, of
the establishment and existence of the
corners, nor does he, with any certainty,
loCate the corners from the statement as
detailed. We must infer he never saw
the corners. His declarations do not fall
within the rule for proving boundary by
reputation.
The provisioning spoken of, is not
such as the law c5ntemplates. The record
shows no regular and legal steps; there
fore, we are relieved from determining the
admissibility of the testimony of a dead
witness, the rule being, that. in order to
warrant the reception of evidence of what
a deceased witness swore on a former
trial, between the same parties, it is ne
cessary TO prove, not only the death of
that witness, but also that his testimony
was given in a cause legally depending
between the same parties. Such evideHce
must be given before parol evidence of
what the deceased witness swore, upon a
former trial, can be admitted. / Starkie,
los. In addition to the fac. that there is
no pretence that the processionlng was
legal, il does not appear that Goss made
the statement under oath.
If the provisioning had been legal, and
Goss examined upon his oath, we are not
prepared to hold that his testimony would
have been competent for either party to
this action. Provisioning, in our law, is
derived from the perambulations of the