Nash v. Fletcher

Taebell, J.: In 1870, Stephen Lynch Nash brought ejectment in the circuit court of Attala county, against Fletcher and wife, to recover a quantity of land particularly described in the declaration. The defendants pleaded the general issue, and also, valuable improvements; a special plea in bar under section eight of an act entitled, “ an act further to remedy the evils occasioned by the burning of the court-house of Attala county,” approved February 6, 1860, and the statute of limitations. The plaintiff demurred to the special pleas. The court overruled the demurrer to the plea setting up the law of 1860 in bar, and leave was given to reply to the said plea. The demurrer to the plea of the statute of limitations was sustained, with leave to defendant to plead over. The plaintiff replied to the plea setting up the law of 1860 taking-issue. Exceptions were duly taken and noted. The cause was — 614 — tried at the July term of the Attala circuit court, 1870. The testimony is contained in an agreed state of facts. It appears that Wilson Nash died in 1853, siesed of one-half the lands sued for; under his will his two sons, M. G. and E. F. Nash, took said land jointly; E. F. Nash died in 1854, before attaining the age of twenty-one years, leaving as heirs at law, Mrs. A. E. Eoss, M. G. Nash, and Stephen Lynch Nash, the plaintiff; M. G. Nash, died in 1854, and by will devised unto Elijah Young in trust, until the said Stephen Lynch Nash should arrive at the age of twenty-one years, one-half of his interest in said lands, which he acquired under the will of Wilson Nash, and as heir of E. F. Nash, deceased, to be delivered to said Stephen upon his arriving at the age of twenty-one years; said lands were sold under a void decree of the Madison county probate court by said Young, as executor of E. F. Nash, deceased, to Thos. J. Fletcher, January 19, 1858; Stephen Lynch Nash, was twenty-one years of age, February 28, 1860; he never conveyed his interest in the lands in question to any one, and never received any part of the purchase money paid by Fletcher to Young ; on the 19th day of February, 1858, these lands were in a state of nature, unoccupied, and wholly uncultivated; on the last day named these lands'were sold at public outcry at the court-house door of Attala county, by said Young, executor and administrator as aforesaid, by virtue of an order of the probate court of Madison county, and were bought by said Thos. J. Fletcher, who paid the purchase money to said Young; the order of sale was void, but Fletcher had no knowledge of any irregularities, and paid the purchase money to Young, supposing he was getting a good title ; he immediately took possession of said land, and cleared and fenced and cultivated the same? and was, on the 28th day of July, 1858, in the actual occupation and cultivation thereof, under his deed from Young; the deed from Young was for one-half the interest in said land ; the other half interst was bought by Fletcher from W. F. Walker, the patentee, and the purchase money paid, and a deed made by Walker to Fletcher, July 6,1858, though the — 615 — purchase from Walker was entered into verbally in 1857; the original cleed from Young to Flecther was not destroyed m the burning of the court-house of Attala county, but is now in the possession of Fletcher and was recorded in the proper office, March 10,1858. ■Upon the foregoing state of facts, the court, on the trial, at the request of defendants, instructed the jury as follows wTha¡£ the deeds from Elijah Young as executor, and as administrator, and William F. Walker to Thos. J. Fletcher, were color «of title, and if, on the 28th July, 1858, Thos. J. Fletcher or any one holding- under him, was in possession of he land sued for, or any part of it in good faith, using it as a farm, they will find ior defendants if five years had elapsed after 6th day of February, I860, and the time @f commencement of this suit, deducting- from that period, time between the Slst December, 1862, and the 2d-day of April, 1867.” To this instruction the plaintiff «excepted. The issue being thus submitted to the jury, they returned a verdict in. £ avor of defendants. Thereupon the plaintiff made a motion, for a mew trial upon the following grounds : 1st. Because the (court erred in overruling the demurrer of plaintiff to defendant’s second plea; 2d. Because the court erred in granting defendants first and only instruction; M. Because the jury found contrary to the evidence; 4th. Because the jury found contrary to the law and evidence. This motion being ■overruled, the plaintiff excepted', and now brings his case here for review, submitting as causes of error the following: 1st.-That the court erred in overruling plaintiff’s demurrer to second plea of defendants; 2d. The court erred in granting defendant’s instruction; 3d. The court erred in overruling plaintiff’s motion for a new trial. , The questions raised by the demurrers are wholly ignored ia the arguments of counsel, and wisely too, as they present no points material to 'a just determination of the cause. The only question.is, was the plaintiff’s right of action barred by the eighth section of the act referred to ? The said eighth section is as follows; “ That as to all lands — 616 — in said county of Attala, which were in possession of persons, Iona fide, used as a farm on the 28th July, 1858, under color of title (and where a person was in possession of part of a a tract, with a deed to the whole Iona fide, using the same as a farm, the possession .in such case shall be adjudged to have been co-extensive with the boundaries in the deed), all suits at law or in equity, for the recovery of any such lands, shall be brought within five years from the passage of this act, and not afterwards, and there shall be no saving in such case in favor of minoi’s, femes covert, or any other person, but all suits shall be brought within five years from the passage of this act, and after the expiration of- five years from the passage of this act, if no suit for the recovery of such lands be brought, the title to all such lands shall be considered in all the courts of this state as having been absolutely in such person as had the same in possession as indicated in the foregoing part of this section, on the 28th day of July, 1858, and the provisions of this section shall extend to cases where possession may have been had by a tenant. ” The court-house of Attala county was destroyed by fire July 28, 1858. To remedy the evils occasioned thereby, a law. was enacted by the legislature, which was approved December '3, 1858: “ An act further to remedy the evils occasioned by the burning” of said court-house, of which the said eighth section is a part, was approved February 6, 1860. ■ The general object of the statute is stated in its title to be to remedy the evils occasioned by the burning of the courthouse. The particular object of the eighth section is to quiet titles. The provisions of this section apply “ as to all lands in said county of Attala, which were in possession of persons, Toona fide, used as a farm on the 28th day of July, 1858, under color of title, ” and it is enacted that “ all suits at law, or in equity, for the recovery of any such lands, shall be brought within five years from the passage of this act, and not afterwards, and there shall be no saving in such in favor of minors, femes covert, or any other person. ” — 617 — The language of this enactment, in terms, appears to embrace the case at bar. It applies as well to suits in equity as at law, and declares that there shall be no saving in favor of minors and others. So far, the application of this statute to the case under consideration seems to be complete; but the result depends, further, upon the use of the term bona fide as employed in this law, and upon what is “ color of title.’7 In giving eifect to this statute, according to its evident intent, and in accordance with the plain and obvious meaning of its language, we are of the opinion that the term bona fide applies to the occupation of the land as a farm, and not to the title of the purchaser. The object, and the construction of this enactment are inconsistent with the theory, that bona fide Avas intended to refer to title. If this had been the intention of the legislature, the phraseology of the law would have been quite different. What is color of title ? This is fully answered in Angel on Limitations, 435, and cases cited therein. If the title, under which the party relying on possession claims, and originally entered, be ever so defective, the possession is, notwithstanding, adverse. An adverse possession for the time limited under a claim or color of title, merely void, is a bar to a recovery under an elder title, by deed, although the adverse holder may have had notice of the deed. Ib. If the entry be made under color of title, the possession will be adverse, however groundless the supposed title may be. 8 Cow., 589. In Welborne v. Anderson, 37 Miss., 172, the court says: “■ It is settled that an adverse possession for the time limited under a claim or color of title, merely void, is a bar to recovery under an older title by deed.” Vide, also, 16 Johns., 293; 18 ib., 40; 8 Peters, 41; 7 Wheat., 355. Counsel for plaintiff in error submit an elaborate and carefully prepared brief, and we have critically examined the authorities referred to. The first point made by counsel is, that defendants hold the lands in controversy as trustees for plaintiff. Were this local statute entirely out of view, or had — 618 — the defendants have had such notice of plaintiff’s title as to amount to fraud; or, if the term “ good faith,” used in this law applied to the acquisition of title, in such case we think the arguments of the counsel would have been conclusive. With this local' statute in force, and applying the term “ good faith ” to the occupation of the land as a farm, and not to the title, the several cases cited by counsel are clearly distinguishable from the one at bar. The references of counsel are too numerous to be specifically reviewed with reference to the case under consideration; but an examination shows them to be based upon totally different circumstances. The proof in this case is, that the defendants purchased these lands in ignorance of the defects of title, and, therefore, in good faith in the common signification of that term. They are not chargeable with fraud in fact, nor, with our construction of the statute in question, are they affected by the doctrine of constructive notice. The question of good faith in its application to the acquisition of title is very fully considered in Learned v. Corley, 43 Miss., 687. Counsel also insist that the law of February 6, 1860, pleaded in bar of this suit by defendants, is in violation of art. 1, § 10 of the constitution of Mississippi. Upon thisimint we shall not elaborate an opinion, but content ourselves with referring to the fact that general and special laws of limitation are recognized, not only as constitutional, but as founded on correct principles. Angel on Limitation, ch. 2. Special acts of limitation are of frequent occurrence in this and other states, and are sustained, except for some feature specially obnoxious to constitutional objections. The interests of minors, femes covert, etc., are the subjects of legislation and limitation. At common law there was no saving in their favor, and hence the object of affirmative legislation to protect them. In the case at bar, the statute declares there shall be-no saving in their favor. The judgment of the court below is affirmed.