Leach v. Woods ( 1833 )

Wilde J.

delivered the opinion of the Court. The exception taken to the plaintiff’s evidence of title came rather too late. It ought regularly to have been taken during the trial; for if it had been, the plaintiff might have had an opportunity to go a step further back in his title, and connect himself with the title of Green. We have, however, considered the exception, and are of opinion that it .would not have availed the defendant, if it had been seasonably made. The mixed possession, as it is called, of Green and Bennet, under the circumstances of the case, can have no legal effect in settling the question of possession between the present parties ; that must be determined by their respective titles, or rather by the dividing line between their lots, which are contiguous. Bennet, under whom the defendant claims, never set up any claim to the Green lot, nor did Green claim any title to the Bennet lot; their cutting over the dividing line respectively, if in fact they did so cut, is to be imputed to mistake, and ignorance of the true running of the dividing line, and is ■lot to affect the question of possession. And besides, the plaintiff is not to be regarded as a mere stranger, although he did not give Green’s title in evidence. He showed a good prima facie title to the Green lot, and it is not pretended there was any gore of land between that lot and the defendant’s. So that, after all, the possession must follow the title, and on this ground it was rightly submitted to the jury.

Motion for new trial overruled.