Fine's Lessee v. Pitner

• Citation: 1 Tenn. 299
• Parties: FINE'S LESSEE v. PITNER.
• Decision Date: 30 September 1808
• Court: Tennessee Circuit Court

1 Tenn. 299

FINE'S LESSEE

v.PITNER.

Superior Court of Law and Equity of Tennessee.

September, 1808.

Appeal.--The lessor of the plaintiff purchased, under a sheriff's sale, the right of the defendant.

For the plaintiff, were produced copies of a grant, dated November the 10th, 1784, No. 514, upon a county warrant, for 300 acres, to William Thornton, on Cherokee Creek. A deed from Thornton to Robert Rogers, and a deed from R. Rogers, by his attorney-in-fact, to the defendant.

Kennedy, for the defendant, objected to the reading of the last deed, unless the power of attorney were shown. 1 Esp. 89, 90. He also showed a record of the proceedings of the County Court, from which it appeared that Nathaniel Taylor was a co-defendant there, having been admitted to defend with Pitner, the present defendant; that he pleaded judgment below for the plaintiff. An appeal was granted to the defendant upon his application, but not as to Taylor, who, having applied by his attorney to the Court for an appeal, was refused on the ground of not being present.

Williams, for the plaintiff, insisted that Taylor was no party there, and that it did not lay in Pitner's mouth to object to the want of a power of attorney, which is recited in his own deed. Tillery's Lessee v. Wilson.^a1 A release which had been recorded from Taylor to the lessor of the plaintiff was produced. It relinquished claim to all the lands within the plaintiff's line.

Per Curiam (absent, Campbell, J.)

It is necessary to determine whether Taylor ought to be considered so far a party here as to be competent to take any exception. The County Court were wrong in not permitting his name in the appeal, on account of not being present. An absent man may appeal by his attorney, upon giving good security; no injury, however, can arise to Taylor by not considering him a party--having given a release to the lessor of the plaintiff, he is no longer interested in this dispute.

Agreeably to the case of Tillery's Lessee v. Wilson, the defendant can not object to the want of a power of attorney.^d1

Let the deed, without producing the power of attorney, go to the jury, and, if necessary, it may hereafter be moved, when the opinion of the judges can be had.^‡

Verdict for the plaintiff.

a1.Vide 2 Strange, 1064; Honeycomb v. Waldrow.

d1. 2 Caines' C. E., 326; 2 Bay, 141;3 Binn., 179.

‡. It seems to have been correct to read the deed on the evidence of the recital. See 2 Caines', C. E., 325.