Whitmore v. Johnson's Heirs

• Decision Date: 30 April 1850
• Parties: WHITMORE v. JOHNSON'S HEIRS.
• Court: Tennessee Supreme Court

29 Tenn. 610

WHITMORE

v.JOHNSON'S HEIRS.

Supreme Court of Tennessee.

April Term, 1850.

Ejectment by Johnson's heirs against Whitmore, in the circuit court of Weakly county, for a lot in the town of Dresden. The case was submitted to a jury under the direction of Fitzgerald, judge, at the February term, 1849. Johnson died seized and possessed of the lot in controversy; and the defendant offered in evidence the following decree:

“State of Tennessee, Weakly county, circuit court, February term, 1842; Benjamin Davis v. The Heirs of William H. Johnson. Be it remembered, that on this, the 15th day of February, A. D. 1842, come on this cause to be heard, upon petition and answer, etc., etc., and it appearing to the satisfaction of the court that Zachariah H. Whitmore was the highest and best bidder for lots Nos. 82, 83, 84, in the town of Dresden, known and designated in the plan of said town, which lots were sold by virtue of an order made by the circuit court of Weakly county, at the October term, 1840, to satisfy the debts of William H. Johnson, deceased; and it also appearing that said Zachariah Whitmore has paid the purchase-money bid for said above mentioned lots. It is therefore ordered, adjudged and decreed by the court, that all the right, title, claim, interest and estate which the said William H. Johnson had in and to the said lots, be and is hereby divested out of said Johnson and said Johnson's heirs, and vested in the said Zachariah H. Whitmore and his heirs, forever.”

This was objected to by plaintiffs, because the decree alone was offered to be read, and not the whole record. The defendants also objected to the reading of said decree, because the heirs were not set out by name. The court sustained the first objection, and a verdict and judgment were rendered for the plaintiffs. Defendant appealed.

J. T. Dunlap and J. B. Williams, for plaintiff in error; Etheridge and Gibbs, for defendants.

MCKINNEY, J., delivered the opinion of the court.

The lessors of the plaintiff (four of whom are minors) are the heirs at law of Wm. H. Johnson, who died intestate in October, 1839, seized and possessed of three lots of ground in the town of Dresden, Weakly county, to recover which this action was brought.

On the trial, the lessors of the plaintiff introduced and read to the jury a grant from the State of Tennessee to the heirs of Joab Bell, dated 9th January, 1826, conveying said lots, also a deed of conveyance in fee simple from the commissioners of said town to the said W. H. Johnson, dated 11th July, 1832, and duly proved and registered, for said lots, being lots Nos. 82, 83, 84, in said town of Dresden, and proved that under said deed said W. H. Johnson had held the exclusive, uninterrupted and adverse possession of said lots for more than seven years immediately preceding his death.

The defendant's counsel then offered to read a paper purporting to be the copy of a decree rendered in the case of Benjamin Davis v. the heirs of W. H. Johnson, and stated that the defendant had no other proof to offer in the cause. The plaintiff's counsel objected to the reading of said decree, because not accompanied with the entire record of the cause in which it purported to have been made, and for other objections on its face; and the court therefore rejected the same.

The only question presented upon the record is, did the court err in rejecting said decree? We are of opinion that the decree was properly rejected, not, however,...