Gibbs v. . Lyon

MerrimON, J. (after stating the facts). The Court’s opinion, intimated adversely to the appellant, seems to have been founded entirely upon the insufficiency of the evidence of title produced by him, accepting it as true, and not upon any defects inherent in it, rendering it incompetent. This must be so, because, so far as apj)ears, no objection was made to any deed put in evidence, upon the ground that it had not been properly proved, or was obnoxious to any other objection. If there had been grounds of objection, and the appellees intended to avail themselves of them, they should have done so, and this ought to appear iu the record. Iu the absence of objection, the evidence was pertinent and competent, and for the purpose of deciding the question before us, it must be taken as true, and in the most favorable view of it for the appellants, because the Court held, that in no view of it, could they recover. So accepting it, we think the jury might have found a verdict in favor of the appellants, and they might have recovered. The testimony of the aged witness, though not very precise and definite, tended to show a continuing possession of the land by various persons for a long period — more than thirty years— thus showing title out of the State, and the jury might have so found. *150 Nothing to the contrary appealing, the fair inference is, that the several deeds of conveyance put in evidence, each contained apt words to convey the fee simple estate in the lauds in question to the alienee in each named. Joel Lyon, under whom the appellants claim to derive title, had two deeds made to him, one dated the 25th day of September, 1849, from Joseph Chaffin; the other, dated the 18th day of December, 1857, from Lemuel Bingham, Clerk and Master in Equity, that purported to convey the fee in the land to him, and he had continuous possession thereof, adverse to every other person — such is the fair inference from the evidence — for more than seven years. He liad more than seven years’ adverse possession of the land under color of title, and thus perfected in himself title in fee to the same. So far as appears in the record, no objection was made to the assignment made by R. H. Broadfield, Register in Bankruptcy, to W. A. Clement, assignee in bankruptcy of Joel Lyon, named above, on the 2d day of July, 1873, nor to putting it in evidence for the purpose of showing title in the appellants. It must, therefore, be taken that the assignment was in all respects a proper one, and passed the title of Lyon to the land to the assignee, and was prima facie evidence that he was duly adjudged a bankrupt in the proper Court of Bankruptcy. If the assignment was in any way or respect defective and inoperative, the appellees should have objected to its admission in evidence, and that they did, should appear in the record, so that the Court could see the objection, and properly pass upon its merits; and if the Court founded its opinion upon such objection, it should have so stated in the record. Otherwise, this Court cannot see or know that objection was made. It was suggested by the counsel of the appellees in the argument, that the assignment was not duly proven, uor did it appear that Lyon had been duly adjudged a bankrupt. This may be so, but in the total absence of objection to it, noted in the record, we cannot so decide. We must be governed by the record and what appears in it. As no objection was made, the presumption *151 is, that there was no ground for it, or that the appellees waived informalities and imperfections, and that the assignment was a proper and effectual one to pass the title of the bankrupt to the assignee. Omnia prcesumuntur soleniter esse acta. Nor was there any objection to the deed from the assignee to the appellanls, and in the orderly course of such things, it passed the title to the appellants, as it purported to do. So that, upon the evidence, the appellants might have recovered. It may be that the appellants failed to prove a good title to the land, and could not therefore recover. We do not decide that they did or did not. We only decide that the Court erred in intimating its opinion, that in no aspect of the evidence of the appellants, could they recover. As it appears to us in the record, in its most favorable aspect for the appellants, they might have done so. There is error. The judgment of non-suit must be set aside, and a new trial allowed. Let this opinion be certified to the Superior Court according to law. It is so ordered. Error. Reversed.