Greenlee v. M'Coy

Smith, G. J., delivered tbe opinion of tbe court. This was an ejectment, tried in tbe Circuit Court of Kemper. On tbe trial, tbe plaintiff offered in evidence a deed executed by 'the tax collector, by which tbe land in controversy was conveyed to tbe plaintiff. This deed, upon objection being made by tbe [589] defendant, was ruled out; whereupon the plaintiff took a nonsuit. The entry is as follows: “And now at this day, to wit, &e., came the parties by their attorneys, and the cause being submitted to a jury of good and lawful men, being freeholders of the county of Kemper, to wit, &c., well and truly to try the issue joined between the parties, thereupon the plaintiff by attorney enters a nonsuit herein.” If the deed was the foundation or sole evidence of plaintiff’s title to the land, it is certain that he could not have recovered after its exclusion from the jury. But if he desired to have the question of the validity of his title decided by the Appellate Court, he should, after excepting to the ruling of the Circuit Court, have left the jury to return their verdict for the defendant. As he did not, but entered a nonsuit in the cause, he is certainly not entitled to have the preceding action of the court reviewed. Let the writ of error be dismissed.