Mills v. May

McCay, J. We see no error in the charge of the Judge, upon the evidence. It was nothing but his duty to point out to the jury the necessity, resting upon the plaintiff, to show that the papers introduced and the admissions referred to the particular land described in the declaration, and this is all the charge amounts to. Whether the evidence did this or not, was distinctly left to the jury. We think, too, the jury was right in their finding. There was, in fact, no evidence to justify a verdict for the plaintiff. Everything in the papers produced, and in the admissions of the deceased, might have been true, and the plaintiff’s deed be a forgery, nevertheless; since there was nothing to show that the reference was to the land in dispute. The evidence would apply just as well to any other tract of land in the county as to this. Besides, every word might have been true, and have applied to the land sued for, and yet the deed remain untrue. So far as [626] the execution of the deed is concerned, there was absolutely no evidence. We do think, however, the newly discovered evidence was important. Not that it proves the deed, but that it shows the defendant to have been the tenant or agent of the plaintiff. Had this evidenoe been before the jury, they must have found for the plaintiff. Nor is it, in any fair sense, purely cumulative. The issue before the jury was as to the execution of the deed. This evidence bears upon the question of whose possession the defendant’s possession was. If the new evidence is true, the defendant was holding the land for the plaintiff, either as his tenant or his agent. In either event, it was the plaintiff’s possession, and he was entitled, prima facie, to recover on it, whether he proved title .or not. We think, therefore, the Court ought to have granted the new trial for this reason. Judgment reversed.