Malone v. Arends

McCLELLAN, J. Neither the judgment xxor tlxe pleadixxgs in tlxe first action of ejectment between given parties can be conclusive of anything. The qxxestioxx being whether the defendant was in possessioxx of the land iix controversy in September, 1891, as she ixow claims to have been — axxd as the uncontroverted evidence both for plaintiff aixd the defendant shows that she was— it may have beeix competent to introduce the record axxd, especially, tlxe pleadings in the former sxxit as evidence oj an admission by the defendant that she was then xxot so in possession though we do xxot so decide ; but such evidence coxxld ixot have been competent for the sole and avowed purpose of estopping her to now say she was then in adverse possessioxx. But if this were otherwise, xxo possible injury coxxld have resulted to plaintiff from the exclusion, sixxce the issue of adverse possessioix xxpon which alone tlxe trial was had did not turn upoix the inquiry as to which party was in adverse possessioxi at that particular time. If defeixdaxxt’s evidexxce was true, she lxad title by adverse possessioxx prior to 1891; and. the fact of her beiixg out of possessioix theix coxxld xiot affect lxer x’ights in the suit. And, oix the other hand, if the facts appear truly by the evidence for plaintiff, his adverse possessioix had ripened into title prior to that time, axxd neither his title nor his right of recovery in this action depended at all -upon whether he or the defendant was then in adverse possessioix. Indeed he bases his right of recovery on the fact that the defendant wrongfully took possession in 1889 or 1890, and has since theix continued therein. The Brewton deed to plaintiff’s ixxtestateis xxot set out, either literally or substantially, in tlxe bill of exceptions, axxd we, of course, cannot say that the trial court erred in instructing the jury that it did xxot convey title but only color of title to tlxe graxxtee therein. Moreover, whatever the Brewton deed may have been, it could only evidence a conveyance by lxinx of any title he may have had in the land, and not in any degree that he had any [27] title. It does not appear that the defendant claimed under Brewton. For aught that is shown in the case the title may yet be in the United States. The case of plaintiff was rested solely upon the contention that the defendant, an adjoining proprietor, had moved her fences over on plaintiff’s lot, thereby inclosing and taking possession of the parts thereof which are sued for, in 1889 and 1890 ; and the defense was rested on the denial of this, and the contention that the fences at the time of suit brought stood precisely where they had stood for twenty years, during all which time the defendant had had adverse possession of all the land inclosed by them. Upon this issue of the removal vel non by defendant-of the fences in 1889 and 1890 all the evidence was adduced, and upon it the ease turned. If the fences were not then moved by defendant she had had adverse jDossession for more than ten years, and was entitled to recover. If they were then moved by her, plaintiff was entitled to recover. Removal vel non at that time was, therefore, the practical test of the rights of the parties ; and there was no error in the court’s so instructing the jury, at the request of the defendant, in charges 3 and 5. Charge 4 given for defendant is patently a correct statement of the law of adverse possession as applied to the evidence in the case. It will suffice to say of charges 1 and 2 refused to the plaintiff that there is no evidence in the case tending to support some of their postulates; as, for instance, that the defendant inadvertently and ignorantly put her fences beyond her own line intending to claim only to the true boundary. So of charge 3 requested by, the plaintiff: no evidence was offered tending to show that defendant originally took possession of the land sued for by virtue of any relation of privity with the plainiff. Defendant did not pretend to have any deed to the land. The reference in charge 4 to any deed she may have had when she took possession may go as well to a deed from the United States as to any other. If she then received a patent from the government, clearly the possession hypothesized in the charge would not entitle plaintiff to recover. The charge was properly refused. We find no error in the record, and the judgment below must be affirmed. Affimed,