
    Leathers v. Kerce.
    No. 402.
    December 13, 1917.
    Complaint for land. Before Judge Wrigbt. Floyd superior court. May 11, 1917.
    , Max Meyerhardt, for plaintiff in error. .
    
      E. P. Treadaway, Gi’dham Wright, and T. W. Lipscomb, contra.
   George, J.

1. Where in an action for land the evidence for the plaintiff required a verdict in her favor for the premises, and it was essential in . defense of the action to show seven years adverse possession of the land under color of title, and the defendant in her testimony admitted that she had not been in adverse possession of the land seven years before the institution of the suit, there was no error in directing a verdict in favor of the plaintiff.

2. Where after this direction the defendant asked for a new trial upon the ground that at the time of the trial, and at the time of the giving of her testimony in which she admitted that she had not been in the adverse possession of the land involved under color of title, for the period of seven years before the institution of the action, she was mentally and physically unable to maka true and intelligent answers to the questions propounded to her, and that she did not in fact make true answers to these questions solely on account of her physical and mental condition, and that she did not and could not, on account of her condition, inform her counsel or the court of her condition before or during the trial, and supported this ground of her motion by affidavits, as in case of newly discovered evidence, such ground was addressed to the sound discretion of the trial judge; and the Supreme Court can not, under the circumstances appearing of record, control his discretion in ■ refusing the grant of a new trial upon the ground stated, it not affirmh- . tively appearing that this discretion was abused.

The ground of the motion for new trial not specifically dealt with herein contains no sufficient assignment of error.

Judgment affirmed.

All the Justices concur.  