Oct. 7,1858, the plaintiff in error, and Myron H. Fish and Charles C. Goodale, filed in the Henry Circuit Court, their declaration in ejectment against the defendant for east half of northwest quarter section 9, township 17 north, range 8 east, in Henry county, claiming the same as their estate in fee; alleging themselves to have been in possession Jan. 1st, 1858, and that defendant entered, etc., Jan. 2nd, 1858.

Subjoined to the declaration was a notice in due form. The affidavit of service showed that the defendant was at the time in possession of the premises named in the declaration.

On the same day the defendant was ruled to plead in twenty days.

Defendant filed his plea in due form, and trial was had, resulting in a verdict for defendant.

The plaintiffs paid the costs, and a new trial was granted them under the statute.

A second trial was had, before a jury. Verdict for the defendant ; a new trial prayed by the plaintiffs, and denied; judgment for the defendant for his costs.

The plaintiffs filed their bill of exceptions, showing that on the second trial aforesaid the plaintiffs offered

First. Letters Patent of the United States, granting the land in question to John Allen, of Madison county, Alabama, dated May 20th, 1841; which were objected to, but were read in evidence.

Second. An exemplification, by S. A. Smith, commissioner of the general land office, under the seal of said office, of a certain certificate of Samuel Hackelton, register of the land office at Galena, 111.,—that John Allen, of Madison county, Ala., on the 13th day of August, 1836, purchased at that land office, the land in question, and had made full payment therefor; to which the defendant’s counsel objected, because, 1st, it was an exemplification, and not the original certificate ; 2nd, that the patent had already issued upon this certificate, and the certificate was evidence only in the absence of the patent; which objection the court sustained, and the plaintiffs excepted.

Third. Plaintiffs’ counsel produced a book, proven to be one of the records of deeds, in the office of the clerk of said Circuit Court, and offered to read therefrom the record of a warranty deed and the acknowledgment thereof, from James M. Allen and wife, of Henry county, 111., to the defendant, for the land in question, dated March 24th, A. D. 1856, and properly acknowledged. It was admitted that the original of this deed was in the defendant’s possession, and that due notice had been given his attorneys to produce it. Counsel for the plaintiffs stated that it was proposed to show that the defendant claimed title to the lands in question, from James M. Allen, the grantor in the above deed, and then to show title thereto, from the said Allen to the plaintiffs, superior to the title of the defendant; and thereupon the record offered was read in evidence without objection.

…

Citation profile

How this case has been treated — in progress