Phillippi v. Thompson

By the Court, Boise, J.: In this case it was incumbent on the plaintiff to show [433] that she had a legal estate in the property and a present right to the possession. (Civ. Code, sec. 313.) This she attempted to do: 1. By producing the patent of the heirs of Couch, the original proprietor; and a confirmatory deed from her to plaintiff, to which we see no objection; 2. By producing evidence tending to prove that she, and those under whom she claimed, had been in adverse possession for twenty years; and we think the evidence was sufficient to make a prima facie case in her favor; and, therefore, the motion for a warrant was properly refused. The next error is: That “the court erred in not admitting the deeds offered by defendant to prove that plaintiff held the land in dispute under a paper title, in which the land was described with certain specific boundaries.” The defendant having simply denied the bill and right to possession of the plaintiff, and not having pleaded in his answer either that he was the owner, or that the title was in a third person, the evidence which the defendant could produce was restricted to a very narrow issue, and was very much more limited than in an action of ejectment at common law, for our statute has provided (p. 179, sec. 316) that “ the defendant shall not be allowed to give in evidence any estate in himself or another in the property, * * * unless the same be pleaded in his answer.” At common law, under the general issue (which is the issue in this case), the defendant could prove title in himself or another, so that most of the rules of law concerning evidence for the defense in ejectment, which have been established, and which are found in works on evidence and ejectment, are not applicable under our statute. We think, however, that the defendant was entitled to offer any evidence which had a tendency to weaken the claim of title under which the plaintiff claimed, for as the plaintiff must make out a prima facie case, the defendant might show flaws in that title. The confirmatory deed recites that this deed was to confirm a legal or equitable title, which the plaintiff held in possession “by mere conveyances from B. B. Wilson, by deed or instrument in writing, dated March 1, 1854, and recorded [434] iu the book of records, transferred from Washington county, p. 30.” The defendant offered these mesne conveyances in evidence to show that plaintiff’s title and right of possession under them was confined to the north-west quarter of said block 30, and claimed that the boundaries of the north-west quarter differed from the boundaries of the land contained in lots 6 and 7, in block 30, which was the land described in the confirmatory deed. These deeds offered in evidence tended to show that Mrs. Couch, the patentee, had sold all of block 30 to It. B. Wilson, March 1, 1854, and that plaintiff, prior to the confirmatory deed, had acquired a paper title to tbe north-west quarter of block 30, and as Mrs. Couch had, in 1854, parted with all her title to block 30, her confirmatory deed gave nothing to plaintiff; that is, provided the deed of March 1, 1854, was in proper form, for Mrs. Couch and others could not grant to plaintiff land she did not own by reason of its having been before conveyed, and we must presume the deeds were in proper form, for no objection was made to their form, the objections being only to their materiality and relevancy as evidence. We think, also, that these deeds might be material to limit and determine the boundaries of the land the plaintiff took under her paper title which she had offered iu evidence, even if they only conveyed an equity, for these deeds constituted the paper title on which she entered the premises, and were the consideration of the confirmatory deed l’elied on to recover, for we must suppose that she relied on her paper title as well as on her evidence of possession, as both the evidence of the paper title and the possession were submitted to the jury to support her right to recover. These deeds had a tendency to show that her right under them was only to the north-west quarter of block 30, and did explain and'limit the land intended to be conveyed in the confirmatory deed, for where a confirmatory deed refers to the deed which it is intended to confirm, and there is a difference in description between the confirmatory deed and the deed to be confirmed, the description in the latter should prevail, for the reason that it describes the land [435] which was originally sold, and for which the consideration was paid, unless it appear that the confirmatory deed was to correct an error in description, which is not the case here, the confirmatory deed being to remedy errors of form, or “ informalities.” This evidence tended only to show to the jury t]ie boundaries of the plaintiff’s land, and should have been admitted for that purpose, and she having by the recital in her confirmatory deed made them a part of her muniments of title, could not properly refuse to be controlled by their contents. We think, therefore, that there was error in not allowing these deeds to be given in evidence. It is claimed that the respondent having shown possession for twenty years, raised a presumption of a written conveyance of the land in dispute. Whether the evidence on this point showed an adverse possession for twenty years, of the strip of land in dispute, which was less than one foot in width, and on the boundary of the plaintiff’s land, was a question for the jury. Any evidence by the defendant tending to show that the plaintiff had not occupied said land, or had not claimed it as hers, during the twenty years, was competent; and on this question of adverse possession, we think the defendant might show under what claim plaintiff entered it, and to what boundary the original possession extended; and if she entered under a deed, the deed would be evidence of the extent of the possession claimed under it, and in this case, the plaintiff in her testimony says that she was not in possession of the whole of lots numbers 6 and 7, of said fractional block 30. That she now resides on the north-west quarter of said block. That her husband John Phillippi, bought said place in the year 1858, and that she is his widow, and is the owner of the land at the present time. That ever since her husband bought said land, an old fence built by one Ebingsr, a former owner of said land, has stood between the land claimed by plaintiff and defendant in this action, and that she claimed all the land on the north side of said old fence, and had been in fact in possession of the same since the said purchase by her husband. This testimony refers to the purchase of this land [436] from Ebinger, and as this purchase was by deed, the possession taken under the deed would only extend to the boundaries named in the deed; and if Ebinger had fenced in land not included in the deed, such land would not pass by the deed, and such deed would be evidence of the original extent of the possession under it, and was proper evidence in this case to show what land John Phillippi took possession of. If he afterwards or immediately took possession of other land, that could be proved by acts of possession on the land itself, and not by acts of possession under the deed which excludes it. To be more explicit, she claims that her husband purchased this land of Ebinger, and that this fence was its boundary; this purchase being by deed, which describes the land as the north-west quarter of block 30. This fence is not a monument, and whether or not it was on the boundary must be determined by the deed and the parol evidence, and if the strip of land in controversy has become hers by adverse possession, she must have claimed and occupied it otherwise than under the deed, for when we settle her claim under the deed, its extent must be determined by the deed, and where a person enters under a deed, he will be presumed to hold under it and to the boundaries fixed in it, until the contrary is shown. As is said in Tappan v. Tappan, 11 Foster, 41, “A party entering on land under color of title, is presumed to enter and occupy according to his title.” (See also Meares v. Wells, 12 Met. 356; Wilson v. Williams, 52 Miss. 487.) For the reasons assigned, we think the judgment of the circuit court should be reversed, and a new trial ordered.