Page:The Green Bag (1889–1914), Volume 24.pdf/217

 188

The Green Bag

decided the case, gave such glorious opportunity for hair-splitting, that a mere appellate court — beyond human izing influences — could not be expected to do otherwise than take advantage of it. And of course they did. On the strength of technical court-made law, they swept aside without ceremony that reason for upholding the judgment. To offset this adverse conclusion the court graciously decided for Simon Ordi nary on his second legal reason for recov ery (which the trial court would not see), as to possession, by saying in the opinion : — "But he (plaintiff) did show actual possession of the strip. This is suffi cient evidence of title to sustain his action, until the defendant has shown a better title. If the defendant's tax deed was valid it shows a better title. But its validity depends upon the question whether the premises were occupied as provided by law during the time preced ing the taking of the deed." Then seemingly to overlook no pos sible technicality for reversing, and ignor ing the fact that the statute provides for "occupancy or possession" they say that, "This," the question of occupancy, "is in dispute and doubt upon the evi dence." Yet the evidence by numerous witnesses was all one way, and only the foxy captain himself in one part of his testimony disputed it, while in another part in answer to questions of the court he admitted the "occupancy or possession" and that he knew it. Witness some of this testimony : — Court — You knew Mr. Ordinary had rented that house to different persons? Captain Somebody — Yes, sir. Court — You knew that he had charge of it? Answer — Charge of the house? Yes, sir. Court — And the premises with the

house? A.— Not these premises. Court — Well, the premises with the house. A. — Some of the premises, yes, sir. Court — You have seen that house there? A. — Yes, sir. Court — For how long? A. — Well, for forty years. Court — You knew this platform was there on the east end of it? A. — Yes, sir. Court — That is removed now, is it not? A. — I believe it is. Court — Don't you know? A. — I have seen it away one side. Court — And that part of the ground that platform stood on is now included in that alley you use now? A. — I think all of it is. Court — It was removed when you put the fence up? A. — Yes, sir. Court — And before you put the fence up that was used in connection with the house? A.— Yes, sir. Of course the misguided trial judge was "clear off his trolley" when he said in his decision : — "It is shown that some one was in possession or occupancy . . . without dispute — I say without dispute on the ground that when the tax-title claimant himself admits that he knew the house was there, that that platform was being used on the east side as a part of it, that he had to remove that platform to build his fence where the line ran, he cannot come into court and say that that land was not occupied, knowing at the same time that the plaintiff did own that house, had used it, and was the owner of it at the time and in possession." Further, in attempted support of this technical reason for reversal, the appel late autocrats say, "It is also in dispute and doubt whether the defendant in truded into the premises." It requires discerning appellate wisdom to realize