Fine's Lessee v. Pitner , 1 Tenn. 299 ( 1808 )

Appeal. — The lessor of the plaintiff purchased, under a sheriff's sale, the right of the defendant.

For the plaintiff, were produced copies of a grant, dated November the 10th, 1784, No. 514, upon a county warrant, for 300 acres, to William Thornton, on Cherokee Creek. A deed from Thornton to Robert Rogers, and a deed from R. Rogers, by his attorney-in-fact, to the defendant. It is necessary to determine whether Taylor ought to be considered so far a party here as to be competent to take any exception. The County Court were wrong in not permitting his name in the appeal, on account of not being present. An absent man may appeal by his attorney, upon giving good security; no injury however can arise to Taylor by not considering him a party, — having given a release to the lessor of the plaintiff, he is no longer interested in this dispute.

Agreeably to the case of Tillery's Lessee v. Wilson, the defendant cannot object the want of a power of attorney.²

Let the deed, without producing the power of attorney, go to the jury, and, if necessary, it may hereafter be moved, when the opinion of the judges can be had.³ Verdict for the plaintiff.

² 2 Caines' C. E. 326; 2 Bay, 141; 3 Binn. 179.

³ It seems to have been correct to read the deed on the evidence of the recital. See 2 Caines', C. E. 325.