Doe ex dem. McConnel v. Johnson

Smith, Justice, delivered the opinion of the Court : Four grounds have been assumed as causes of error, and relied on for a reversal of the judgment in this cause. They are as follows : First, The Court erred in striking out the amended counts in the declaration which contained demises in the names of Pratt and of Haynie. Secondly, There was error in the Court’s refusing a second continuance of the cause. Thirdly, There was error in rejecting the deed from Selby to Tucker offered as evidence. Fourthly, There was error in admitting the deed from Pratt to Johnson to be read in evidence. Upon the first ground, it is to be remarked, that the general rule is, that a" person ought not to be made a lessor in ejectment, who has no subsisting title.(1) Although the two new counts were added to the declaration by the leave of the Court, under an order to amend the declaration, yet it subsequently appearing by the disposition of Johnson, that Pratt and Haynie had no interest whatever in the lands in controversy, the order to strike out the counts added was consequently correctly made. If any person, who may have once had a title, is to be made lessor, the burden of deducing a title from him is taken from the plaintiff, and thrown on the tenant, which would be unreasonable. If there is a case that ought to be excepted from the general rule, it ought to be clearly and specially stated to the Court, and its necessity shown.(1) On the refusal to grant the second continuance of the cause, we discover no error; but on the other hand, a great want of diligence on the part of the applicant. The materiality of the testimony of Roberts, had been long previously shown by a deposition of McConnel, on file, and why early steps had not been taken to have his testimony taken by deposition, the witness residing out of the county of Morgan, does not appear ; nor is it perceived that even ordinary efforts had been made to obtain the attendance of the witness. His absence is not accounted for. The refusal to postpone the trial was entirely justified. On the third ground of the rejection of the deed from Selby to Tucker, the exclusion of the deed is justified on the plainest principles of evidence. The lessor of the plaintiff and the defendant claiming title from the same source, (Seth Pratt,) it was a matter wholly immaterial whether the deed should be admitted as evidence of title, neither disputing the title of Pratt. It was consequently a matter of no importance from whom Pratt derived his title, for the purpose of determining the main question before the Court. A ready answer may be given to the point presented by the last ground. The execution of the deed from Pratt to Johnson, which was admitted in evidence, was sufficiently proved by the acknowledgment made before the justice of the peace, and the certificate of the recorder of the county. The certificate by the magistrate is full, certain, and direct. The additional proof contained in the deposition of Harlin, of the handwriting of Pratt, and the subscribing witness, Roberts, is only cumulative, and fortifies the certificate of acknowledgment of the justice. We are of the opinion that the judgment should be affirmed. Judgment affirmed. Footnotes [(1)] 10 Johns. 369 ; 4 Johns. 483. [(1)] 4 Johns. 483.