South v. Deaton

Opinion of ti-ie court by JUDGE DURELLE Affirming. The appellants, as the heirs at' law of J. W. South, who died in 1880, brought suit in February, 1893, against the appellee, alleging that their ancestor, at his death', was the owner and in possession of a tract of land- on Wolf creek, on the south side of the North Fork of the Kentucky river, not defined by metes and bounds, but described by reference to the ridges which inclose the Wolf Creek basin, which appears to be about 3% miles long, and to contain about 3,000 acres of land. The petition avers that the land lies within a grant of 116,656 acres from the Commonwealth of Virginia to Thomas Franklin in 1784, but this averment is evidently made for the sole purpose of showing that the Commonwealth had parted with its title, in order to establish a title in appellants by adverse possession. It is alleged that J. W. South purchased the land from Joseph — 316 — Spencer in 1849, and since that date, and down to June, 1892, appellants and those under whom they claim have been in the peaceable, uninterrupted, continuous, adverse possession of all the land, holding, claiming, and controlling it “to the full extent of said boundary, which is a well-defined natural and artificial and marked boundary,” and that the title in fee simple is vested in appellants by lapse of time, but that in June, 1.892, appellee wrongfully entered upon,' and took possession of, a portion of the land, and built houses thereon, and has cut and is cutting timber thereon, and is cultivating and threatening to cultivate a part-of the land. The insolvency of appellee was averred, and an injunction prayed to prevent trespasses upon the land. The answer denied any ownership or possession by appellants or their ancestor of any of the land, and denied the adverse possession claimed by appellants to the full extent of the ■boundary described, or to any extent. The appellee set up title to three tracts described by metes and bounds,- — one of 200 acres, and two smaller tracts lying in the Wolf Creek ■valley,— and claimed title to such land in him by adverse possession for more than 15 years. So it appears that the appellants were endeavoring to establish a title to the lands held by appellee, Deaton, by adverse possession for 15 years, while appellee was claiming a similar title in himself to the land claimed by him, and relying also for his defense upon a denial of appellants’ title. An issue out of chancery to try the question of title was ordered. The jury found for ■appellee. There were filed with the surveyor’s report, and used in evidence, a number of title papers. Though the claim on behalf of appellants is that the whole of the Wolf Creek valley was bought from Joseph Spencer in 1849, no deed to any part of it was made until 1868, when a deed was exe — 317 — cuted from the heirs of Joseph Spencer for a tract of land lying at the mouth of Wolf creek, described in the deed as containing 300 acres, but which really contains 378 acres, and which does not touch, and is in fact from two to three miles distant from, the tracts claimed by appellee. This deed refers to a former deed from Duff to Joseph Spencer, and conveys, “also all of the entries or surveys made by Joseph Spencer on Wolf creek, together with, all and singular, the improvements and appurtenances,” etc. There was an amended petition, claiming title to the whole valley by adverse possession under title derived from the Commonwealth of Virginia, and-this was denied by an answer; but no connection is shown with the Thomas Franklin grant. The record shows that the whole valley was included in the Franklin patent, with which appellants do not connect. A number of leases, dated at various times from 3882 to 1891, from Cardwell, as representative of the South heirs, to various parties living on small tracts of land in the valley, sip,lied by those parties, were1 exhibited, by which they acknowledged themselves tenants for short periods of time, and agreed to pay a certain amount of corn, or a certain portion of the crop raised, for the use of the land. The only leases which cover the land in controversy, as stated by the witness Cardwell, arc1 one to Benjamin Spicer, dated March, 1850, which is very insufficiently proven, and a lease; io George Deaton, dated February, 1881. Some of the I *ssees were permitted to state, against objection by appellants, that they claimed the land embraced in the leases as their own. Four instructions were given, — the first and fourth upon motion of appellants, and the second and third on the motion of appellee. There is no objection to the first instruction, which properly states the law to be that if appellants — 318 — should show actual, continuous, notorious, and adverse possession for 15 years, the jury should find for them, and, unless they so believed, they, should find for appellee. By the fourth instruction, given on appellants’ motion, ihe jury were told, “where one enters as a tenant of another upon a tract of land, that he holds to the extent of the landlord’s-boundary lines, unless the lease or contract of renting' shows a different intention.” The second instruction is the one chiefly complained of by appellants: “The court instructs , the jury that possession by tenant within the boundary of land described in the deed from Spencer to South, read in evidence, did not give possession to any land outside of said deed; and unless the jury believe from the evidence that plaintiffs and those under whom they claim had the continuous, actual, uninterrupted, adverse possession outside1 of said Spencer deed foi1 more than fifteen years before the filing of this suit on the 16th day of February, 1893, claiming: the same as the land of J. W. South and his heirs, to a well-defined boundary, and that said possession covered the land claimed hv defendant, they will find for defendant.” The third instruction is: “If plaintiffs placed tenants upon any of the boundary of land claimed by them, and executed to-said tenants leases, the possession of said tenants extended only to the limits of the boundary described in said leases under which they entered and held, if any of them did so hold.” Now, it appeared that Spicer lived upon the tract described in the Spencer deed, as did, also, Mart South,, who is claimed to have taken charge of the property after Rpicer, and George Deaton, who held under the later lease. There can be no objection to the third instruction, ('specially when it is considered in connection with the fourth instruction, which was given on appellants’ motion. The objection urged to the second instruction is that it is — 319 — given on the theory that appellants claimed title under ■the deed from Spencer, and that, as they claimed under that instrument, their claim to possession, when holding by themselves or a tenant within the boundary described! therein, should not be extended to take in other land outside of that boundary. But appellants claim that they had adverse possession of the whole Wolf Creek valley for more than 15 years before the deed was executed; that they did not claim under the deed at all, but under their -possessory title thus obtained, and therefore it was prejudicial error to limit their possession, as they insist this instruction does, to the boundary described in the deed. The fact remains, however, that the deed was in evidence before the jury, and being in evidence, to be considered by the jury, it was proper they should be instructed that mere possession under the deed, ■and within its limits, did not of itself give possession of land outside the deed boundary, and that, in order to establish possessory title outside of the deed boundary, there must be possession or claim outside of that boundary. This, we think, is all that this instruction, fairly construed, can be considered to mean; and, though it might have been more (dearly expressed, we can not believe that it prejudiced the jury. As to the statements admitted of various lessees, that they and others in like position claimed to hold in their ■own right the lands occupied by them, it may be said that this is not a case between such lessees and their landlord, in which an estoppel would arise, subject to be avoided by an averment and proof of fraud or mistake, but a case which is, in effect, an action in ejectment, in which the plaintiff seeks to recover on the strength of a possessory title, and the defendant denies the possession upon which the plaintiff relies. Tim landlord, in order to show that — 320 — bo lias held possession of all the land in the valley, shows ■that he has leased various parts of the land which are not ■in controversy. This is admissible, because those facts show an exercise of ownership over parts of the boundary claimed, and, so far, tend to support his claim of possession of all the land. If those tenants should undertake to show an adverse title as against the landlord, they would be estopped, unless they could show facts to avoid the estoppel, selves from telling the truth, as between their landlord and lord. They are merely witnesses. Can they estop themselves from telling the truth, as between their landlord and a stranger, by the mere signing of a paper which some* .of them could not read, and which they say they did not un-, derstand? The principle of estoppel here invoked is classed by G-reenleaf under the head of “Presumptive Evidence” (Green!. Ev., c. 4): “A man is said to be estopped when he has done some act which the policy of the law will not permit him to gainsay or deny. ... If it be a recital of facts in a deed, there is implied a solemn engagement that the facts are so as they are recited. The doctrine of estoppels has, however, been guarded with great strictness, not because the party enforcing it necessarily wishes to exclude the truth, — for it is rather to be supposed that that is true which the opposite party has already solemnly recited, — but because the estoppel may exclude the truth. Hence estoppels must be certain to every intent; for no one shall be denied setting up the truth, unless it is in plain and clear contradiction of his former allegations and acts.” Id. sec. 22. “The principle that the tenant is estopped to deny his landlord’s title applies in all actions between the parties arising out of the tenancy, including suits in equity as well a.s actions at law.” 18 Am. & Eng. Eney. Law, p. 419. The same principle underlies this estoppel which supports the — 321 — estoppel bv deed. In Penrose v. Griffith, 4 Bin., 231, the ■court said that the rule of law is that a deed containing a ■recital of another deed is evidence of the recited deed against the grantor and all persons claiming by title derived from him subsequently: “The reasonable rule is that the recital amounts to the confession of the. party, and that ■confession is evidence against himself and those who stand in his place. But such confession can be no evidence ■against strangers.” Greenl. Ev., sec. 23, note. The rule is •based on expediency. Says Greenleaf (section 32): “In these cases of conclusive presumption, the rule of law merely attaches itself to the circumstances, when proved.- It is not deduced from them. It is not a rule of inference from testimony, but a rule of protection, as expedient, and for the general good. It does not, for example, assume that all landlords have good titles, but that it will be a public and general inconvenience to suffer tenants to dispute them. Neither does it assume that all. averments and recitals in deeds and records are true, but that it will be mischievous if parties are permitted to deny them.” The rule is that a ■tenant máy not dispute his landlord’s title; that is, he may not assert rights against it. The rhle which prevents him disputing his landlord’s title in a suit between them being •a rule of expediency, and based solely on the doctrine of estoppel, obviously, when the dispute is not between them, can not apply to prevent the truth appearing. Estoppel applies to the assertion of rights, not to the introduction of testimony. Certain kinds of testimony are excluded, on account of the policy of the law. A man may not testify as to his transactions with a dead man. That is not estoppel. It •is legislative policy. On the other hand, a man may estop ■himself to make a claim of right. In such case his evidence — 322 — of facts showing- his right may be excluded, bceause such ■facts are irrelevant. There is nothing to which they apply, •for' he is estopped to make the claim. He is estopped to -make the claim, not to give the testimony. But if the testimony be relevant to the claim of another, it may be given. The stranger is not estopped to' make his claim, and ■therefore may produce all testimony relevant thereto. Even a solemn judgment estops the parties and their privies only ■as to matters between themselves. As to strangers, they may plead the truth' and prove it. And if a judgment will not estop a man to testify in a contest with one not a party thereto, can such estoppel be worked by the mere signing of a paper? Assuredly not. Though a man have g-iven sworn testimony to a falsehood, that shall not estop him to declare the truth, where the rights of another are involved. We see no reason why, in such a case as this, as between the two claimants of the land, the facts as they exist may not be made to appear; and we are cited to no authority which so ■holds. We are of opinion that no substantial error has been ■shown to the prejudice of appellants’ rights, and the judgment is affirmed. Chief Justice Griiffy and Judge Paynter dissent. Whole court sitting.