Carter, administrator, v. Darnell

W. J. Carter, as administrator of his father Thomas Carter, made affidavit to eject A. A. Darnell, as an intruder, from a house and parcel of land. Defendant made a counter-affidavit; the jury found in his favor, and plaintiff’s motion for a new trial was overruled. The material ground of the motion is, that the court erred in charging the jury as follows: “If you believe from the evidence that the plaintiff petitioned the ordinary for a division of the lands of his father’s estate in kind, and that commissioners were appointed for that purpose, and their report had been filed with the ordinary and recorded by him previously to the bringing of this suit, and that the commissioners so appointed allotted this land in dispute to the plaintiff’s brother John •or some one óf the heirs, then I charge you that the title had passed out of the plaintiff and he could not recover in this action.”