McCarron v. O'Connell

Opinion — Heydenfeldt

Heydenfeldt, J., delivered the opinion of the Court, Murray, C. J. concurring.

Possession in the plaintiff is sufficient to enable him to recover against a trespasser, and although a higher title may be attempted to be set up, the failure to sustain it will not operate against the right to recover damages. So in this ease, the bills of sale, not under seal, although insufficient to convey the right intended, do not weaken the claim of the plaintiffs under their possession. Besides this, the only issue made by the appellants was as to the fact of the trespass, and thus all of the errors assigned, which affect the questions of law, are disposed of.

The remaining one relies upon the insufficiency of the evidence to sustain the verdict. It seems that although several defendants are declared against jointly, no joint trespass was proved, hut only a trespass by one. Now it is true, that if a joint trespass had been proved, the plaintiffs could not have been allowed to waive that, and give evidence of another trespass against one only. But such is not the case here; a trespass is found against one only, and the plaintiffs are entitled to recover.

Judgment affirmed.