Ozment v. Anglin

Bleckley, Judge.

1. The plaintiff in ejectment held his estate in severalty as the result of a voluntary partition made between himself and his co-tenant. The latter had, before the partition, and, therefore, while interested in the premises, pointed out the boundary line separating the land which was the subject of the co-ten an cy from the tract now claimed by the defendant in ejectment. That line, as then pointed out, would leave the disputed slip on the defendant’s tract, and thus the present action would fail if the line indicated was the true one. The co-tenant, by reason of the voluntary partition, has been succeeded in his ownership of an undivided share by the plaintiff. The two are thus in privity, and the admissions of. the former may affect the latter. The declaration as to the location of the boundary was an admission, and ought to have been received in evidence. The court erred in excluding it.

2. The chances are a thousand to one that Mrs. Tenable was misunderstood when the witness thought she disclaimed title in herself and admitted it in Angiin. We will not say that this ground in the motion for new trial would be good by itself, but in view of the whole case, a new trial should have been granted. If justice was done before, it can be done again; if it was not done before, it may be done now.

Judgment reversed.