[W. H. Wood, C. M. Wood, Ella E. Wood, and Ella E. Wood, as guardian of Emmett B. Wood, brought complaint for land, against Haines in 1881. Plaintiffs’ abstract of title set out that they were the only heirs of W. M. Wood, deceased. On the trial, they showed that the decedent was in possession at the time of his death in 1863; that plaintiffs were his only heirs; that they had remained in possession from the date of his death until ousted by defendant; and that there had been no division of the estate. Defendant introduced no evidence. The jury found for the plaintiffs. Defendant moved for a new trial, on the grounds, among others, that the verdict was contrary to law and evidence; that tho court refused to grant a non-suit, and charged to the effect that possession in the ancestor, at the time of his death, and possession since by his family, would warrant a recovery, in the absence of any proof of title by the defendant; because Mrs. Ella E. Wood recovered as guardian of Emmett Wood, though no evidence of the guardianship was produced to the jury ; and because the court rejected from evidence the justice court fi.fa. under which the land was sold, and the sheriff’s deed based thereon. (These are not set out in the record.)
The motion was overruled, and defendant excepted.]