Green v. Scarlett

The opinion of the court was delivered by Thompson, J. In the court below, the learned judge, after hearing the evidence, reserved the point as to the right of the plaintiff to recover on the evidence, and directed a verdict for the plaintiff. Afterwards, on full consideration, the judgment was entered for the defendant, non obstante veredicto. We fully concur in the learned judge’s opinion in entering this judgment, and adopt it without further elaboration as the true and proper view of this case. This disposes of all but one of the points argued here. The plaintiff in error complains that the defendant below on the trial relied solely on the title derived through the sale on the levari facias, and as that proved defective he could not fall back upon a good title. A defendant in ejectment may-resist his adversary, not only by any title in his own hands that will defeat him, but if he have not such, he may do so by any outstanding title that will have that effect. This, it is presumed, is not controverted, but the objection rather is, that by appearing to rely upon a bad title, the better one is waived. We take it for granted that in the trial the plaintiff below was not prevented from fully meeting everything that stood in his way of a recovery. We certainly perceive nothing to the contrary in this record. The point reserved was the plaintiff’s right under all the evidence to recover. The defendant’s mortgage, as well as the fact of the possession under it, was part of the evidence. If the defendant did not fully declare what he intended to claim under this evidence, before closing the testimony, we cannot help the matter. Certain it is that he made his claim known at the argument of the reserved point, and this was his first opportunity to discuss the testimony. It has been often ruled that a mere technicality is waived by a trial on the merits, and such was the nature of the cases cited by the plaintiff in error. And even a point of substance not made in time is not necessarily a ground for a new trial. But the point was not overlooked on the trial, nor was it technical by any means. But it would be extremely technical were we to determine that the defendant below seemed, on the trial, mostly t© rely on the weaker of two titles, that he should not, before the close of the contest, avail himself of the stronger. If [232] a party overlook entirely a material matter in his case, it would be the duty of the court, in administering justice according to law, to give to it its proper effect in the case. We see no error in this case, and the judgment is affirmed.