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The Green Bag
right to the land founded upon the adverse possession of his grantor. This seems to be the effect of [citing the last foregoing case]." These two were the only cases cited as authority for the last quoted extract from the opinion in the case of Ordinary v. Somebody, while in another case de cided several months before the Ordi nary decision, the court complacently held just the reverse by saying: — "While it is not necessary, in order to create such privity [between several occupants] as will enable a subsequent occupant to tack his possession to that of a prior occupant, that there should be a conveyance in writing, and although such prior possession may be transferred by parol, yet it must clearly appear that the particular premises as in this case the strip in dispute, were in fact embraced in the deed of transfer, in whatever form it may have been made." A year and a half after the Ordinary case, the last quoted identical language was again used in a decision, and with out quotation marks. Five years after the decision in which Simon Ordinary got his concrete justice, the court in a general discussion of the subject said: — "That this court did not intend (ever!) to hold that a paper transfer is essential to privity between possessions, is clear. It has not been so understood, and it was distinctly said that a paper trans fer is not essential to the tacking of adverse possessions together." And again in the same case it is set forth : — "Sufficient has been said to bring out clearly the true doctrine as understood by the court, that a paper transfer is not necessary to connect adverse pos sessions together," followed by the state ment: "We might almost call the roll of the courts on that doctrine."
Yet in dealing out concrete justice to Simon Ordinary, the appellate court, inadvertently perhaps but no less errone ously as shown from its own statements before and admissions thereafter, decided differently "the true doctrine as under stood by the court," in its painstaking and conscientious efforts to find techni cal error if possible in accordance with an apparently preconceived idea of its duty and purposes. And it is universally conceded, too, that this appellate court was one of the very best, ablest and most conscientious in the nation even a score of years ago. The re-trial in the lower court with a new jury again took days where hours should have sufficed for the simple issues. But the trial court dared not take chances on the appellate autocrats' dis cerning powers. The resourceful old technical Stikatem this time concluded to facilitate a mix-up on the part of the jury and furnish am munition for another reversal, by im posing a special verdict on the court. He knew that this scheme was usually a most fruitful reservoir for compli cations. It required extraordinary in genuity to formulate as many independ ent questions of fact in this simple case as there were jurors to decide them, but the feat was eventually accomplished and the list submitted to "the twelve men good and true." However, Simon Ordinary, despite the legalized judicial pitfalls and traps thrown in his path, again obtained a verdict and judgment. As a matter of course Captain James Somebody again appealed. Whether it was because the appellate autocrats by this time had unconsciously absorbed some of the humanizing influ ences of the case, or whether they care lessly neglected to scan the record with magnifying glasses, or indeed, whether
