Congdon v. Morgan

The opinion of the court was delivered by McIver, A. J. This was an action to recover possession of a tract of land to which neither party could show a paper title— both claiming by possession. The land was originally granted to Eobert Screven on August 11th, 1711. The plaintiffs relied, as color of title, upon a deed from Allston to Shackelford & Magee, alleged to have been executed in 1853, but which was lost. After introducing some evidence of the existence and loss of the deed, the plaintiffs proposed to introduce evidence of its contents, which was objected to, but the objection was overruled and an exception was duly taken by the defendants. Under this deed Shackelford & Magee had a survey of the land in dispute made; placed stakes at each corner of their claim; built a wharf upon it • permitted tenants to erect a shed on the wharf, and made such use of it as is described in the testimony set out in — 592 — the “case.” In 1856 the land in question was sold by the master in equity under an order of the court passed upon the hearing of a petition, which is likewise set out in the “case” filed by the administrator of Magee, who had died in the meantime, with the concurrence and assent of Shackelford. At this sale, which was made on September 11th, 1856, Shackelford bid off the land and paid the purchase money, but took no titles from the master, and continued to use the land as before. Things remained in this condition until March 26th, 1866, when Arthur Morgan, under whom the defendants claim as heirs-at-law and devisees, took possession of the land, claiming to have bought and paid for it at that time, though the deed made by the attorney in fact of his vendor was not executed until November 2d, 1874, and he remained in possession up to the time of his death in August, 1878. On February 28th, 1874, Shackelford, having been adjudicated a bankrupt, made an assignment of his estate; including the laud in dispute, which was afterwards sold by the assignee, without an order from the Bankrupt Court, and bought by the plaintiffs. It appears that Arthur Morgan was aware of this sale, and not only interposed no objection to it but authorized an agent to bid for him nearly the amount at which it was knocked down to the plaintiffs. Arthur Morgan continuing in possession, the plaintiffs commenced an action against him on October 6th,, 1875, to recover the possession of the land, which was pending at the time of his death, when it abated. After his death the plaintiffs took possession of the land and erected a building on it, when they were ousted by the. act of the agent of the defendants, and this action was commenced against them on January 16th, 1879. The jury found a verdict for . the plaintiffs, and judgment being entered thereon, the defendants have appealed and we propose now to consider the several questions raised by the appeal. • The first question is whether the Circuit judge erred in admitting secondary evidence of the contents of the alleged lost deed from Allston to Shackelford & Magee. Appellants contend 1st. That there was not sufficient evidence of the loss of the deed. 2d. That there was no competent evidence of the existence of the-deed as a genuine instrument. — 593 — In Floyd v, Mintsey, 5 Rich. 372, 373, it is said : “ No uniform rule can define the requisite evidence to establish the loss. This must depend on the circumstances of each case.” And in Berry v. Jourdan, 11 Rich. 75, Whitner, J., in delivering the opinion of the court, upon a question similar to the one now under consideration, uses this language: “ There are certain general propositions bearing on the question sufficiently familiar to the profession, and to be found collected by most of the text writers on evidence. Their proper application will so much depend on the peculiar circumstances of each case, that but little instruction would be derived from any attempt to embody them in an opinion.” Neither shall we undertake, on this occasion, to lay down any absolute rule upon the subject, for, as is said in 1 Greenl. on Ev., § 558, “ it should be recollected that the object of the proof is merely to establish a reasonable presumption as to the loss of the instrument, and that this is a preliminary inquiry addressed to the discretion of the judge.” Hence, where the case, as presented to us, does not show that the judge has violated any of the established rules of evidence in the conduct and determination of this preliminary inquiry, we cannot say that there was any error on his part in admitting the secondary evidence. In this case we are unable to perceive any such violation of the rules of evidence. The deed was traced to the possession of the master in equity, which is the last heard of it, by whom it is mentioned as being before him at the timé he made his report on the petition filed for the sale of the land said to be conveyed by it, the record of that petition and the proceedings under it having been received in evidence without objection from appellants; and then there was evidence of an unsuccessful search in the office of the master, who was dead at the time of the trial below. We do not see that there was any error on the part of the Circuit judge in holding that the proof of loss was sufficient to let in the secondary evidence, especially when it is remembered that this deed was relied upon not as a link in a chain of title, but merely to give color of title to support the plaintiff’s claim by possession, for there was no effort to connect Allston, the grantor, in the alleged lost deed, with the original grant. The preliminary evidence offered here was certainly — 594 — much stronger than that which was held to be sufficient in Edwards v. Edwards, 11 Rich. 537. The second objection is that there was no legal evidence of the genuineness of the alleged lost deed. This objection rests, as we understand it, upon the proposition that in order to prove a deed it is necessary to introduce one of the subscribing witnesses, or, if they be dead, to prove their handwriting, and that this applies as well to a lost deed as to one produced in court. As a general proposition this is undoubtedly true, but in 1 Greenl. on Ev., § 572, among the exceptions to this rule is the following: “If the instrument is lost and the name of the subscribing witne^ is unknown,” citing Keeling v. Ball, Peake on Ev., Appendix, p. 78, which, on examination, will be found fully to sustain the text. To same effect see Jackson v. Vail, 7 Wend. 125, and our own ease of Barton v. Keith, 2 Hill 537. When, therefore, it is made to appear, as in this case, that the subscribing witnesses to a lost, deed are unknown, other evidence may be resorted to for the purpose of establishing the existence of the lost instrument as a deed. The next question raised by the appeal is as to the correctness of the charge of the Circuit judge as to the character of Shackelford's possession. There can be no doubt but that the cases of White ads. Reid, 2 N. & McC. 534; McBeth v. Donnelly, Dud. 177, and Slice v. Derrick, 2 Rich. 627, cited by the counsel for appellant, do establish the doctrine that mere fugitive, disconnected trespasses, such as cutting trees, stripping bark, &c., however long continued, will not constitute such a possession as will ripen into a title uuder the statute of limitations; but that was not the character of the possession which the jury, in this case, were instructed would be sufficient. The charge was: “ That the entry by Shackelford & Magee, under the deed from Allston, in 1853, the marking out of their claim under said deed by a survey then made, the putting of a stake at each corner of their claim, the building of the wharf on one corner of the same, and that corner being on the part of the land in dispute in this action, the erection of a shed on said wharf in 1856, and the use of said wharf and shed or house [as described by the witness,]' by Shackelford & Magee and their tenants were such acts of possession, — 595 — under color of title, as would ripen into a title by possession.” In this instruction there was clearly no error. Turpin v. Brannon, 3 McC. 261; Allen v. Johnson, 2 McM. 495. It is argued, however, that after the sale by the master, Shackelford’s possession was in a different right and cannot be connected with that of Shackelford & Magee prior to the sale. But Shackelford took no deed from the master, and so far as his legal title was concerned it was the same after as before the sale, and, therefore, there was no change in the character of his possession, which would have enured to the benefit of his co-tenant as well as of himself, though such co-tenant would be estopped from claiming any such benefit by the equitable right of Shackelford arising from his having bid off the land, and paid the purchase money, and the whole benefit would, in fact, enure to Shackelford. Appellants next contend that the sale by the assignee in bankruptcy was a nullity, inasmuch as Morgan was then in possession, claiming adversely to the bankrupt, and that when such is the case the bankrupt act confers upon the assignee no power to sell without an order of the Bankrupt Court. According to the view which we take of this case, it will not be necessary to consider what is the proper construction of the bankrupt apt in this respect. But we may remark,.in passing, that while we can very well understand why a sale by an assignee in bankruptcy of property in the possession of, and claimed by, another should not have any effect in concluding the rights of such claimant unless he is brought before the court and afforded an opportunity to litigate his rights, we do not see any reason why the assignee may not sell the interest of the bankrupt, whatever it may be, leaving the purchaser to litigate with the adverse claimant. As we have said, however, we do not propose to discuss this question, not regarding it as necessary to the decision of this case, because there is no evidence that there was any adverse claimant of the land in question, known to the assignee, at the time the sale was made. On the contrary the evidence is that Morgan, who was then in possession, not only gave no notice to the assignee of any adverse claim, but stood by making no objection to the sale, and actually authorized the assignee to bid for him very nearly the amount for which it was sold to the plaintiffs. We do not think, there — 596 — fore, that either Morgan or those who claim under him are in a position to make the question as to the validity of the sale raised in the grounds of appeal. The next question is whether the defendants have made out their claim by possession. The possession of Arthur Morgan, under whom the defendants claim, had not ripened into right at the time of his death, inasmuch as an action had been brought against him by the plaintiffs within the ten years, which was pending at the time of his death, when it abated. After his death the plaintiffs, having previously acquired title by possession, as we must assume after the verdict of the jury, took possession, as they had a right to do; for the possession of Arthur Morgan could not, as it would at common law, by descent, be cast on his heirs, so as to bar the plaintiff's right of entry and put them to the necessity of bringing an action. Code, § 110. When, therefore, the defendants, by their agent, McQuaid, subsequently took possession and ousted the plaintiffs, that was a new trespass, for which they became liable to suit, and their possession must be regarded as originating in such trespass, and not as a continuation of the possession of Arthur Morgan cast upon them by descent, because such possession had not only been interrupted but put an end to by the possession rightfully taken by the plaintiffs, after the death of Arthur Morgan, by an entry on the land, from which they were subsequently ousted by the illegal act of the agent of the defendants. It is clear, therefore, that the defendants have failed to make out their title by possession. The judgment of the Circuit Court is affirmed. Simpson, C. J., and McGowan, A. J., concurred.