McConnell v. Rhodes

By the Court. Nisbet J. delivering the opinion. [1.] The evidence relied upon by the plaintiff in execution was forced out of the claimant at his instance for his use. It was not before the Court by the claimant’s consent. It does not appear that her title is derived alone from the defendant in execution. Non constat but that she has and will rely upon other title and better title. The rule therefore that a party is estopped from denying the title under which both litigants claimed, does not apply. The plaintiff in execution had not shifted the onus. The question whether the plaintiff’s judgment lost its lien on the property by the administration of it, and he is not remitted to his remedy against the administratrix, this Court prefers not now to decide, because not necessary. The judgment below would be affirmed upon the ground above stated, if the presiding Judge erred on this question. It is a serious question and requires farther consideration. Let the judgment be affirmed.