Kellogg v. Vollentine

By the court, Grover, Justice. Neither party showed a paper title. The plaintiff proved a conveyance by quit claim deed of the premises in question to Jane Wood, made in 1859, from Warner and wife. No title whatever was shown in Warner, at the time of the conveyance, consequently none was shown in Jane Wood under that deed. The plaintiff also introduced in evidence a contract from Jane Wood to himself for the sale of the premises by her to him ■\vhich contained a clause giving him the right of possession of the premises. This contract is not available to show title in the plaintiff, because none was shown in Jane Wood. The most that this could avail the plaintiff is to show the extent of the claim made by him, and a constructive possession, perhaps, of that portion of the premises not actually occupied by any one, he having taken actual possession of a portion thereof. The plaintiff also gave evidence tending to show that he was in the actual possession of a portion of the premises embraced in the contract and where the alleged trespasses were committed; and also of the commission of the trespasses by the defendant. This was sufficient, prima facie, to maintain the action. Actual possession is sufficient evidence of title against a party not showing a better title. The defendant proved a quit-claim deed from James Sharp to him for twenty-five acres, parcel of the premises embraced in the contract from Jane Wood to the plaintiff made in 1856; and gave evidence tending to prove that he went into the actual possession of a portion thereof about ten years previous to the trial, and used the residue for obtaining fire-wood, &c., under a contract to purchase the same from James Sharp, and continued so in possession until he paid for the land and obtained the deed, after which he continued under the deed. He also gave evidence tending to show that Sharp had been in possession of a portion of the said premises for several years prior to the contract of sale to the defendant. This failed to establish [232] a paper title in the defendant, for the reason that none but a possessory title was shown in Sharp. The parties thus failing to show a paper title or a title by a continued possession of twenty years under claim of title adverse in its character must have recourse to the rights acquired by possession alone. Under such circumstances the first or oldest possession prevails. Proof of possession alone unexplained raises a presumption of ownership, and is sufficient to maintain an action to recover damages against a party entering upon land or to recover possession in case a better title is not shown by the defendant, but if the defendant shows the' oldest possession to have been in him or his grantor, then of course the title thus shown is the better, and must prevail in the absence of other proof. Apply the principle to this case as I understand the evidence, the defendant proved possession in himself and his grantor prior to that of the plaintiff or Jane Wood. The plaintiff in no manner connects himself -with the title of Noah W. Wood, and can derive no aid from that. The evidence is not entirely clear as to the extent of his possession, but I do not understand that it embraced any portion of the land claimed by the defendant. Nor is the evidence clear as to the precise portion of the premises upon which the trespass was committed for which the plaintiff recovered ; nor does the finding of the referee show it. A portion of the evidence shows that the plaintiff claimed to recover for trespasses upon lands in possession of the defendant, and a portion tends to show trespasses by the defendant upon lauds in the occupation of the plaintiff of which the defendant nor his grantor, Sharp, never had any possession. For the former the' plaintiff was not entitled to recover. He was for the latter. Under these facts I should not be inclined to disturb the judgment presuming that the recovery was wholly based upon the latter, but for the finding of the referee that the [233] plaintiff acquired title to the whole premises under his contract from Jane Wood, and the deed from Warner to her. This finding was erroneous, as no title, except as above stated was shown by these papers. This finding, if correct would warrant a recovery against the defendant for an entry upon any portion of the premises, although the plaintiff and those under whom he claimed were never in possession until after the possession of the defendant and his grantor. For aught I can see, this finding had a material if not controlling effect upon the judgment. For this reason the judgment must be reversed. The question as to the admissibility of the comptroller’s deed to Warner is not presented by the case. I shall not therefore, discuss it further than to remark that I think it was, under the facts of the case, correctly decided by the referee. It clearly had no effect upon the title of the defendant. Upon another trial, if no further evidence of title is given the parties will be able to show the extent of their respective possessions, and the character thereof fully, and if a recovery is had by the plaintiff it will appear that the same is wholly based upon trespasses committed by the defendant upon such portions of the premises as the plaintiff or those under whom he claims has had possession prior to that of the defendant or those under whom he claims. I say nothing as to the .exception ■ to the ruling of the referee refusing to strike out from the evidence the deed from Warner and wife to Jane Wood. That deed was. wholly immaterial, and it made no difference to the defendant whether it was in or out of the case. The reception of evidence wholly immaterial, and that can in no view prejudice the party objecting, is not ground of exception. Judgment reversed, new trial ordered, costs to abide the event.