Gardner v. . Heart

Wright, J. After the plaintiff had rested, the defendant’s counsel moved for a nonsuit on the ground that the former had shown no legal title to the lots in question. At this time the plaintiff had only introduced and read in evidence a deed from Charles M. Baker, dated July 24, 1829, purporting to convey to him the lots in fee. No evidence had been given, nor was it subsequently supplied, of title in his grantor; yet the judge refused to nonsuit the plaintiff, and affirmatively charged the jury that “ enough had been made out to show that the plaintiff was the owner of the lots.” They were unoccupied city lots. The plaintiff was bound to show either a regular paper title or actual possession. The barely giving in evidence of a deed to him of the premises, fell short of proving a title; yet the judge must have acted upon the assumption that it did prove such title, both in denying the nonsuit and in charging the jury. *530 After the nonsuit had been denied, considerable evidence was incidentally given tending to show an actual possession of the lots by the plaintiff, insomuch that had the question of possession, upon such evidence, been submitted co the jury, and they had found for the plaintiff, we would haidly have disturbed their verdict on that ground. Bik no question of actual possession was made or submitted; and the judge seems to have continued to the end the error into which he had fallen on the motion for the nonsuit. A new trial must be granted ua winch this error may be cor rected, costs to abide the event. New trial granted.