41. Trespass to try title by purchaser at sheriff's sale, against tenants upon the premises, one of whom is defendant in execution, under which the purchase is made-a vendee, to whom defendant in execution has conveyed the premises, is a competent witness on the part of defendant, to prove that they are tenants under him.

McGehee v. Andrew & Eastis, 5 S. & P. 426. 42. In trespass, to try title, verdict that the plaintiff recover the land and "one moiety of the mills," sufficiently certain.

Sawyer v. Fells, 2 P. 9.

43. The duplicate receipt of a receiver of public monies on an entry of public lands, is, before the issuance of the patent thereon, sufficient evidence of title to authorize the bona fide holder of the same to maintain this action.

Bullock v. Wilson, 2 P. 436.
Goodlet v. Smithson, 5 P. 245.
Bullock v. Wilson, 5 P. 338,

44. The general rule, that a defendant in ejectment may be permitted to set up an outstanding title in another, and that the landlord may defend the action by being made a co-defendant, does not apply in an action by a purchaser at a sheriff's sale to recover possession.

Avent v. Read, 2 P. 480. 45. In an action by purchaser of land at sheriff's sale against defendant in execution, to recover possession, the latter cannot show title in another.

Ibid. 46. In this action, damages for the detention of the premises as well as possession, are recoverable. 1bid.

47. A certificate of the first payment for lands, sold by the United States under the credit system, no other proof being offered, that the terms of sale had been complied with and final payment made, and the presumption of forfeiture thus rebutted, will not authorize a party to maintain the action of trespass, to try title. Gill v. Taylor, 3 S. 182.

48. In trespass, to try title, the fictitious proceedings in ejectment are abolished, and when in such action the ejectment was laid in the declaration as before the date of the patent on which the plaintiff relied, it was held that this was immaterial, and the damages were recoverable for the detention down to the time of the trial. Masters v. Eastis, 3 P. 368.

49. The proper criterion of damages in trespass, to try title is not the profits acquired during the occupancy of the premises-but it would seem that it is the damages by being kept out of possession.

Bullock v. Wilson, 3 P. 382.

50. In trespass, to try title, the record of a previous suit between the ancestor of the plaintiff and the defendant for the same premises, might be good evidence to show notice to the latter of a paramount title, in order to fix a period from which the plaintiff is entitled to recover damages for the occupancy of the premises semble.

Kennedy & Moreland v. heirs of McCartney, 2 P. 142. 51. Duplicate receipts of receiver of public monies are evidence, before the patent issues—but whether afterwards, quere.

Budwell v. Bowlinger, 5 P. 86. 52. In this action it would be incompetent to ask a witness, "what is the value of the land and premises, sued for," because it is irrelevant; as in this country it is not ascertained what proportion the yearly occupancy of land bears to the fee simple estate. Bullock v. Wilson, 5 P. 338.

53. Under the statute authorizing the action of trespass to try title, as a substitute for ejectment, and the practice which has grown up under it—a declaration for trespass, quare clausum fregit, which contains no averment of

title or assertion that the action is instituted to recover possession of and to try titles to the land described-will nevertheless support a verdict and judgment for damages and the possession of the premises, the writ being indorsed as the statute required. Thrash v. Johnson, 6 P. 458.

54. In this action, an assignment not under seal of a certificate of final payment of lands purchased of the United States, is not sufficient evidence. Ansley et al. v. Nolan, 6 P. 379.

of

55. Parol evidence admissible, to prove the lines as well as the part the land occupied by a defendant, and a plot of the land may be used by the witness, either to refresh his memory or as a memorandum if made by himself; and a surveyor may not only prove his survey but give parol evidence explanatory of it. Cundiff v. Orme, 7 P. 58.

56. The land system of the United States, was designed to provide in advance with mathematical precision, the ascertainment of boundaries; and the second section of the act of Congress, 1805, furnishes the rule of construction, by which all disputes that may arise about boundaries, or the contents of any section or subdivision of a section shall be ascertained.

Lewin v. Smith, 7 P. 428. 57. When a survey has been made and returned by the surveyors-it shall be held to be mathematically true, as to the lines run and marked and the courses established, and the contents returned.

Ibid.

58. Each section or seperate subdivision of a section is independent of any other section in the township, and must be governed by its marked and established boundaries: and should they be obliterated or lost, recourse must be had to the best evidence that can be obtained, shewing their former situation and place. Ibid. 59. The purchaser of lands from the United States, takes by metes and bounds, whether the actual quantity exceeds or falls short of the amount estimated by the surveyor.

Ibid.

60. When a navigable stream, intervenes in running the lines, the surveyor stops at that point and does not continue across the stream; the fraction thus made is complete and its contents can be ascertained: therefore, when there is a discrepancy between the corners of a section, as established by the United States surveyor, and the lines as run and marked-the latter does not yield to the former.

See Patent-Public Lands-Sheriff..

Ibid.

TRIAL OF RIGHT OF PROPERTY.

1. On trial of right of property, verdict that part of the property levied on is liable to execution, is equivalent to finding residue not liable. Lewis, adm. v. Lewis, A. R. 95. 2. If property taken in execution be claimed by M: & S, the bond of S. only, with security, is sufficient to authorize the trial under the statute. Mars & Co. v. Gant, A. R. 406.

3. To authorize summary judgment against security on bond for delivery of property taken in execution, and claimed by a third person, the sheriff must have returned such bond forfeited. Allen v. Hays, 1 S. 10.

4. An execution issued by justice, levied on real estate, which is claimed by a third person, justice cannot issue a venire facias to try the right of property, the jurisdiction is exclusively in the circuit court.

McDaniel v. Moody, 3 S. 314.

5. In a trial of the right of property between a claimant and a plaintiff in execution, it does not devolve upon the latter to produce the judgment on which the execution issued, and the production of the execution is sufficient between the parties contesting. Carleton, et al v. King, 1 S. & P. 472.

6. Under an issue to try the right of property, jury cannot find against the claimant on the ground of infancy. The proper course in such case is to move for an issue to try the question of infancy, or for the appointment of a guardian. Murdine v. Perry, 2 S. & P. 130. 7. When an affidavit filed under the statute by a claimant of property levied on under an execution, used the words "just claim," held sufficient. McGregor & Darling v. Hall, 3 S. & P. 397.

8. Where trial of right of property levied on under an execution is pending, and plaintiff files a bill in chancery, to subject such property as trust estate to the payment of the same debt, he cannot be forced to elect which remedy he will pursue, until he has had the benefit of the defendant's anHouston & Gillespie v. Sadler, et al. 4 S. & P. 130. 9. Sureties on a bond given to try the right of property levied on under execution, cannot on error from a judgment rendered against them, object to any defect in the judgment against their principal, while that judgment remains in force-semble. Elliott et al. v. Gray, 4 S. & P. 168.

swer.

10. That the jury in determining an issue between plaintiff in execution and claimant, has omitted to notice a portion of the property levied on, cannot be objected by the sureties of the bond of such claimant in a proceeding against them on such bond.

Ibid.

11. After issue and verdict for two slaves, the court has no right to sever and grant a new trial as to one slave, and refuse it as to the other-but it seems a writ of error will not lie on such a judgment while the judgment as to the other slave is pending. Dale v. Mosely, 4 S. & P. 471.

12. A claimant of property levied on under execution, cannot in a proceeding to try the right, interpose a mortgage of the property levied on, executed by the defendant in the execution to himself.

}

Purnell et al. v. Hogan, 5 S. & P. 192. McGregor & Darling v. Hall, 3 S. & P. 397.)

13. As a general principle the claimant of property levied on under execution, cannot be permitted to interpose the title of a third person to defeat the execution when his own title has failed.

McGrew v. Hart, 1 P. 175.

14. But when a claimant possesses an immediate interest in the property levied upon, as where such property belongs jointly to the infant and the claimant, or to some third person, not a party to the suit, this would form an exception to the general rule, and authorize the interposition of the circumstances of the title to show that the defendant in execution had none.

Ibid.

15. Where execution had issued against personal property, which has been claimed by a third person under the statute, and before the trial of the right is determined, other executions are issued upon the same judgment, and levied upon the same property, an injunction will lie to restrain the proceedings on the latter. Huntington v. Bell, 2 P. 51. 16. A bond executed before the statute, 1828, by the claimant of property levied on under execution, and embracing a trial of the right of property both to real and personal estate, is void as a statutory bond.

King, adm'r. v. Walton, 3 P. 289. 17. The claimant of property levied on under execution cannot impeach the fairness of the judgment on which the execution issues, by evidence that it was fraudulently obtained. Hooper v. Pair, 3 P. 401.

18. A judgment and proceedings under it, obtained by confession or default against one whose property is subsequently levied on under execution in favor of a stranger, form no evidence against the latter in proceedings to try the right of property, to show the fairness of the debt, upon which the claimant obtained the first judgment. Ibid. 19. In such proceedings judgments for costs cannot be rendered against the sureties to the bond given by the claimant,

Ibid. 20. Property levied on under execution, and claimed by third persons under the statute, the right to which is found against them, cannot be subsequently levied on by virtue of a judgment obtained against the claimants and their sureties on their bond to re-deliver.

Lindsay v. King, 3 P. 407. 21. A claimant of property levied on under execution cannot, it seems, under decisions of this court, now avail himself of a defect in the judgment, or decree upon which it has issued.

Perkins & Elliott v. Mayfield, 5 P. 182. Į
Collingsworth v. Horn, 4 S. & P. 237. J

22. It seems that an issue between plaintiff in execution and a claimant, should conform to the amount of interest sought to be contested, as if an equity of redemption be in controversy, the issue should seek to condemn that alone, and not the entire estate.

Ibid.

23. In trial of right of property between plaintiff in execution and a third person, it does not devolve on the former to produce the judgment on which the execution issued. Hardy et al. v. Gascoigne & Holly, 6 P. 447. 24. A sheriff's return upon an execution, when made in pursuance of law, is matter of record, and in all cases where the execution is admissible, the return is also evidence.

Ibid.

25. The statute 1828, requires the jury when they find property subject to an execution, to find the value of each article separately; but the claimants of property levied on, have no right to complain that a jury is unable to do so as it places them in a more favorable condition than they would otherwise be in. Ibid.

26. A verdict of condemnation followed by a judgment is conclusive against the right of claimants, and all persons claiming under them; and the question of liability to the satisfaction of the execution, cannot be again litigated in any subsequent controversy.

Ibid.

27. There is no statute authorizing a judgment for costs against a surety on a forthcoming bond for trial of right of property, and therefore such a judgment would be void.

Ibid.

TROVER.

1. In trover after verdict the allegation that the goods came to defendant's possession by finding or otherwise, is not error.

Peters v. Johnson & Conally, A. R. 100. 2. Trover lies against an officer who seizes property by virtue of process, but sells it without giving due notice,

Wright v. Spencer, 1 S. 576.

3. The measure of damages in such action is not the value of the articles, but the deficit in the price the articles should have produced. Ibid.

4. The finder of Tost treasure before the loser is known, has a sufficient special property in it to maintain this action against any one who converts it except the true owner.

T. & W. Brandon v. P. & M. Bank, Huntsville, 1 S. 320. 5. In trover for slaves by trustee for the benefit of an infant, the uncle of an infant is a competent witness. Ibid.

6. Semble-trover lies to recover back property paid under parol contract for the sale of land, such contract being void.

Keath v. Patton, 2 S. 38.

7. Trover may be maintained for the conversion of property, though party enjoined from removing it out of the State.

McGowan & Wife v. Young, 2 S. 276. 8. If plaintiff has not the entire interest in the property, defendant may show it to reduce the damages, and the plaintiff may recover to the amount of his interest.

Ibid.

9. Trover may be maintained against one who undertook to carry flour to a certain place, having deposited it by the way by mistake, another carried it away, and afterwards paid him for it.

Bullard v. Young, 3 S. 46. 10. The action of trover, like the action of assumpsit, is competent to administer justice according to the rules of equity.

McGowan v. Young, 2 S. & P. 160. 11. In trover, the reasonableness and truth of a qualification of, or excuse for, the non-delivery of property demanded, are for the determination of the jury. Dent & Cade v. Chiles, 5 S. & P. 383. 12. In trover plaintiff has a right to recover the value of the property and interest on the amount from the time of conversion to the date of the judgment. White v. Martin, 1 P. 215. 13. Recovery in trover vests the title of the property in defendant, and the damages recovered are the price of the chattle so transferred by application of law. Ibid. 14. Whether the change of title relates to the conversion, the judgment, or the satisfaction, it is evident that, admitting the last to be necessary to the consummation of the transfer, it relates back to the time of conversion. Ibid.

15. So that children of a slave, born during the pendency of trover for the mother, cannot be recovered in a subsequent action.

Ibid.