Opinion
(January Term, 1806.)
A record of recovery in ejectment is not evidence, in an action by the purchaser against the vendor on a warranty, of the superior title of the lessor of the plaintiff.
DEBT upon a bond, with condition stating that defendant had sold several warrants to the plaintiff, and that if any of them were bad, the defendant, on request, would given credit on the note which Pearse had given for the consideration money, to the amount of the value, etc. The pleas were conditions performed and non est factum. The bond was proved, and the plaintiff further proved that he had caused a survey to be made, pursuant to one of the warrants, No. 190, and had obtained a patent for 640 acres; and he stated that of 200 acres, part of the 640, one Joseph Pearse was in possession; that the plaintiff had sued him for the 200 acres, in an action of ejectment, and that there was a verdict against him for the plaintiff. He offered the record of the ejectment to prove this.
Harris, for the defendant, objected that Templeton was no party to that ejectment, and that it ought not to be read against him.
E contra, it was argued that it ought to be read as prima facie evidence of title in the defendant in that action, leaving it to (380) Templeton to show, if he could, that the verdict was by Covin, or that the title was not in Joseph Pearse; and the counsel cited 1 Wn. 306 to 308.
The record ought to be read, but can prove no more than that the plaintiff did not recover. It will not be of itself proof that Joseph Pearse had title.
The record was read, and HALL, J., directed the jury that the plaintiff should have proved Joseph Pearse's title, and that he had not done so, for the record was not evidence of that; and the plaintiff, hearing the opinion of the Court, suffered
A nonsuit.
NOTE. — See Wright v. Walker, ante, 16, and the cases there referred to in the note.
Cited: Shober v. Robinson, 6 N.C. 37.