
    Doe on the demise of Wentworth and Another v. Goodwin.
    The finding of the Circuit Court, sitting as a jury, upon a matter of fact, will net be disturbed, where the evidence is conflicting.
    
      ERROR to the Henry Circuit Court.
    
      Monday, December 12.
    
      M. L. Bundy, W. Henderson and J. S. Newman, for the plaintiff.
    
      J. Rariden and C. H. Test, for the defendant.
   Stuart, J.

Ejectment for the undivided half of a half lot in Newcastle. The evidence is all made part of the record. Trial by the Court. Finding and judgment for Goodwin.

The lessors of the plaintiff claimed title under a judgment in their favor against Richard Goodwin, execution, sale and sheriff’s deed. The series of these events stand thus: Judgment, October 31, 1848. Execution, November 1, 1848. Levy, July 9, 1849. Richard Goodwin, execution-defendant, died December 3, 1848, after issue and before levy. The property was sold August 4, 1849.

The evidence shows that Wesley Goodwin conveyed the whole of the half lot to Richard Goodwin by deed dated November 4, 1845. In October, 1846, Richard mortgaged the same half lot to Wesley, to secure the payment of a note. In March, 1848,’Richard conveyed the undivided half of the half lot to Wesley in fee, and Wesley entered a release of the mortgage as to the undivided half of the half lot—acknowledging the receipt of half the amount due thereon. On the 31st day of October, the very day on which the judgment was rendered, Richard conveyed the remaining undivided half of the half lot to Wesley in fee.

The chief point of controversy is, which event transpired first, the rendition of the judgment or the delivery of the deed. There is considerable conflicting evidence as to the exact hour. " But this being a matter of fact, proper for a jury to determine, and the Court sitting as a jury having found in favor of the priority of the deed, we do not feel at liberty to disturb the finding. In this we but adhere to the course repeatedly announced and acted upon in this Court.

There is another point made by counsel in argument, but as the decision of it could not affect the result, we do not regard it as fairly arising in the record.

Per Curiam.

The judgment is affirmed with costs.  