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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
Crawford & Hitchcock, for plaintiff; Lyon for defendant in error.
JUDGE TAYLORThis was an action of ejectment. On the trial, John Haynes was introduced as a witness to prove that he had surveyed the land; that it was the land described in the declaration; and that the defendant was in possession of it when the action was instituted. This testimony, on the objection of the defendant, was excluded.
Land, when the subject of controversy, is to be identified as other property. Either party may call on any disinterested person to survey it, and the testimony of such person may be given to the jury. The proof of the defendantís possession was material to the issue. The confession of lease, entry, and ouster is a mere fiction, adopted in order to bring out the question of title; and it would be strange if this fiction should be proof of facts material to the issue. Proof of possession in the defendant is believed to the uniformly required by the courts of all the States of the Union.
The judgment must be reversed, and the cause remanded.
The Chief Justice not sitting.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), p. 406.
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