Herd v. Dew ( 1847 )

Turley, J.

delivered the opinion of the court.

This is an action of ejectment brought to recover possession of two tracts of land, lying in the county of White, one of thirty-five, and the other, of sixty two and one half acres.

The jury returned a verdict in favor of the lessors of the plaintiffs, for both tracts, and there was judgment accordingly —to reverse which, this writ of error is prosecuted.

Upon the trial in the circuit court, it .appeared that the two tfacts of land together with several others were levied upon and sold by virtue of divers executions against Jose C. Dew one of the defendants, to one James Jones. That afterwards S. J. Walling as trustee redeemed the tracts of land thus sold, with exception of the thirty-five acres, which there is no proof to show was ever redeemed from Jones. That Walling did afterwards transfer to Joseph Herd, one of the lessors of the plaintiff an interest in the lands thus redeemed, to the amount of two hundred and ninety-three dollars and ten cents; that the sheriff of White county executed to them,' a deed for the s,ame, by virtue of the sale made under the execution as aforesaid; and thatS. J. Walling sold and conveyed the remainder of his interest to Creed A. Taylor, the other lessor of the plaintiff afterwards.

From this statement of facts it clearly appears, that the lessors of the plaintiff had no title whatever to the tract of thirty-five acres, or at least, that no evidence thereof was produced on the trial. In fact it is admitted, that there is no such legal evidence; but then it is asked of the court to give a judgment for the tract of sixty-two and- -one half acres, for which it is said, the plaintiff has shown title, and reverse as to the other.

This we cannot do, because the verdict and judgment are entire, and for both tracts of land jointly and not severally, and we cannot reverse in part and affirm in part; and because there is no proof that the defendants were in the possession of the tract of sixty-two and one half acres at the commencement pf the suit.

The judgment of the circuit court will therefore be reversed, and the cause remanded for a new trial.