Hall v. Marshall

delivered the opinion of the court.

This is a petitory action. The plaintiff claims section 27, in township No. 1, south of the 31st degree of latitude, in range No. 2, east of the basis meridian, under a settlement made by one Thomas Broderick, deceased, which he avers entitles him to a pre-emption.

The evidence show that the land occupied and claimed ^ defendant jg gection 28, and they objected to the , , . . plaintiff s right, under the pleadings, to show any title to that r ® 1 r ® J section,

We think the objection was well taken and that the evidence should not have been received. The plaintiff contends that he had a right to offer the proof, because the defendant in his answer set up a right to both sections 27 and 28, but the assertion of title to land, not claimed in the petition, , _ . . , , , .1 formed no issue on which evidence could bé received.

The judgment of the court below is final, we think it J o 7 should be one of non-suit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, that there be judgment for defendant, as in case of non-suit, with costs in the court below, those of appeal to be borne by the appellee.