Year: 1859




Wm- J. Bird gs. 9. K. Fsnnon.


This is appeal in error from an action of ay.-
t"tsr@ deIduasr successfully prosecuted in the Cir
cut court Of Greene. The case is most imperfect
" made out ON both sides. The bill of exceptions
eahhot contain all the evidence. There facts
enough given to enable any one to form an opinion
as TO the proper disposition OF the case The charge
OF the Court assumes state of facts that is not TO
be found in the record, and laws down prineipIes
that have no connection with the case made out
We think If probable that the evidence authorized
the charge, and that it has been neglected to make
the bill of exceptions show it. The ASSUMPTIONS of
the charge msled the character of the proof
set out in the record. But we cannot know auv-
thing out of the record. although we NAV suppose
that it is imperfect In this case the law is correct
ly charged upon the case assumed, but upon care
ful inspection Of the evidence have it, we find
that it falls short, material points, of max
ing out the case, which. from the charge, it would
be supposed existed Ne thought at first that under
the strong rules in favor of the conclusive chaPac
ter of the action Of jury, without error on the
part of the Court that the. judgment in this case
should be affirmed. But the absence of dy proof al
da on material point, upon a closer inspection
of the record, has changed our opinion. There is
proof or circumstance to show how Bird came
into the possession or in any way to connect him
with Eidlemon II is impossible for us to see how
he became liable 20 this peculiar action, the bill
of exceptions is entirely silent to the character
Of his holding, or in what mode, or under what





mon was tenant Of FannOn when he died, in 1857
either by contract implication and Bird entered
under contract or purchase from him. other
wise under him or his claim, he would occupy his
shoes and be liable to this action to the landlord.
The case mpePfectly shadOWed forth in the bill of
exceptions is this That FannOn and EddlemOn We're
JOINT owners of the tract of land in question and
that they agreed upon and run a partition line be-
tween them and EddlemOn was TO live upon the
part which was assigned to Fannon being the same
trhi b,b boI,
at the discretion of FannOn, upon conditions per-
haps and that he died in possession in 1851 about
hye years after this agreement, whereupon Bird /
entered into possession, and still holds It. But |
whether he entered under contract with Eddie |
mOn under claim of right, a a trespasser /
does not in any wav appear. On that point the |
proof is entirely silent. If he entered in any way
under Eddlemon, the Court correctly held he would
stand in his shoes. and be subject to this action
upon the assumption that EddlemOn was the |
tenant of Fannon; or. if it appeared that |
the latter was entitled to the possession, and /
that Bird held entered unlawfully, this action |
would lie for the possession. But If the possession |
vacant and Bird entered peaeeably. and for HIM
self without any connection with Eddlemon. accord
ing to the case OF Greer vs.. Wroe and wife, Sneed
247 he would only hesubect to an action of eject
ment to try the title and not orcble or unlawful
entry and detainer The law Of the charge is cor
rect but the facts as they presented to in the
record, do not MAKE out the case that seems TO be
assumed There 5 no proof at ali 10 connect Bird /
with EddlemOn, nor that the place was il the pcs
session of any one when the former entered. We |
think it more than likely, from the apparent
sunptions of the court, that there such proof
would sustain the verdict; but it is forth.
and cannot act upon the presumption of its exiS
tence the bill OF exceptions states that all the eyi
delce is set out. There must be some evidence to |
make out the state of the which the verdict
must rest.


This summary action given for the recovery of |
possession is very proper and salutaFy in the cases
prescribed by the statutes; but must not go be-
yond what is written in the use of it. We decide |
nothing now but that the evidence, see it, does
not make out for this statutory remedy. Judg-
ment reversed and new trial granted.


CARUTHERs.