Dixon v. Cook

SlMKALL, J.: Evan Cook brought the action of ejectment against Dixon, to recover possession of the tract of land discribed in the pleadings. A jury was dispensed with, and the cause submitted to the court, under the statute on the law and facts. The land was entered at the land office in 1838, by L.S. Marshall and J. J. McCaughn, to whom a patent was subsequently issued (in September, 1835). Judgment was recovered in 1844, in the Madison circuit court against J. J. McCaughn for $474. Execution emanating upon it, was levied upon his undivided interest in the land, and a sale and deed was made by the sheriff to Daniel Mayes, 12th October, 1846. Mayes, in September, 1860, conveyed, by quit-claim deed, to W. H. Tegarden. In 1849, Marshall and Tegarden, conveyed to Evan Cook. Such was the title of the plaintiff. The defendant read in evidence a deed from Charles McLaurin to his father, Z. Dixon, dated January, 1853, and recorded the 14th of that month and year, and claimed that his father and himself, as his heir, had — 224 — continuously held possession of the premises, from that date to the institution of the suit. Objection was made to the admission of the deed from Marshall and Tegarden, in evidence, because of the vagueness and indefiniteness of the description of the premises. The land sued for, as described in the declaration, is the E. of S. E. | of section 26, Town. 5, R. 1, west. The deed omits the township and range. In order to supply the infirmity in the deed, the plaintiff offered in evidence, (which was admitted), the title bond of Marshall and Tegerden to Dixon, which contains a full identification of the land, by subdivision of section, township and range. To the introduction of this testimony the defendant objected, and assigns its admission for error. There is no doubt of the general rule upon this subject, that parol evidence is not admissable to contradict the “ language ” of the parties used in written contracts, so as thereby to add to, contradict or vary that which is contained in the written instrument. It is competent to resort to such extrinsic testimony, in order to ascertain the nature and qualities of the subject of contract. 1 Greenl. Ev. § 280. Where premises were leased by metes and bounds, including a yard, and the question was whether a cellar, under the yard was included, such evidence was proper, to show possession of the cellar in another, and, therefore, that it could not have been intended to pass. 1 Greenl. Ev. § 280. So where a house or mill is conveyed, on the inquiry of what was part of it and so passed by the deed, parol evidence on the point is admissible. Ropps v. Baker, 289. Such is also the rule where the words of the instrumentare applicable to several persons, or to several parcels of land, etc. Identity may be ascertained by other testimony. In these and the like cases, extrinsic circumstances may be consulted to point out what — 225 — “persons,” what “parcels” of land the parties referred to or meant in the writing. Nor can it be properly said that such testimony trenches upon the rule, which forbids other words or language, than that used in the instrument, to be proved, aliunde, which would give another meaning and intention to the written paper. Miller v. Travis, 8 Bing. 244 ; Waterman v. Johnson, 13 Pick. 261, and many other cases, supply illustrations of the rule. Parol evidence is always admissible, to show which of two things of the same name or description is meant. ■1 Greenl. Ev. § 288, So too are all contemporaneous writings relating to the same subject admissible in evidence for this purpose. 1 Greenl. Ev. § 283, note 4. In Hagan v. Ins. Co., 1 Wash. C. C. Rep. 426, Judge Washington declared that if a deed be ambiguous, an antecedent agreement out of which it originated, may be resorted to for explanation. It may be remarked in this connection that the bond for title was executed or bears date the same day of the deed, and there can be no reasonable doubt that the lands minutely described in the bond, are the same lands as those embraced in the deed. The bond does not contradict or vary the deed. The deed left it in doubt, in what township and range the quarter section in dispute was. There were or might have been several quarter sections, which would have answered the description of the deed. This contemporaneous bond, relating to the same subject matter, identifies and distinguishes the particular parcel intended to be passed by the deed. The doctrine under consideration has received numerous applications in this state. In Hanna v. Renfro, 32 Miss. 125, when the county and state of the situs of the land was omitted in the deed, it was ascertained by proof aliunde. Two parcels of land on a certain creek, would each conform to the description which was intended to be — 226 — conveyed was shown “ aliunde.” Hazlip v. Noland, 6 S. & M. 294. We think, therefore, that the bond for the purpose indicated was incompetent evidence. Objection was made by the defendant to the deed from Daniel Mayes to Tegarden being read in evidence, because the deed purports to have been made in 1858, was not acknowledged by the grantor, and was not recorded until -, and then on testimony of the subscribing witnesses. It was conceded that the original offered in evidence, was signed and recorded by the grantor. The registry statutes were passed in the interest and for the protection of creditors and bona fide purchasers, for value, without notice of a prior unrecorded deed. As between grantor and grantee the conveyance is perfect and complete to pass the title though never recorded. The creditor or purchaser, unaffected with notice, are the only parties that can complain, and defeat a prior grantee, under an unrecorded deed. The creditor, too, or purchaser, must be a creditor of, or purchaser from, the grantor in the unregistered deed. It was not error to admit this paper in evidence. The plaintiff having derived his title by regular mesne conveyance from the original purchasers and grantees of the United States, was entitled to recover, unless the defense, by prescription, was established. To constitute adverse possession two facts must concur. First, there must be an entry, under color of right, claiming title, hostile to the true owner , and the world. Second, that entry must be followed by possession, and appropriation of the premises, to use, publicly and notoriously, so that the other claimants may take notice, and others may be cognizant of the fact. Huntington et. al. v. Allen et. al., 44 Miss. 668, and cases there cited. Such possession continued for a period of ten years, is, under the statute pleaded, not only a bar of the right of entry, but confers a title to the land so held. Ellis v. Murray, 28 Miss. 129. The law presumes — 227 — that possession is subordinate to the title and real owner. Where, therefore, it is set up against the legal title, in order to overcome the presumption of its being rightful, it must be shown that a claim of ownership was made, manifested by public, notorious, and continuous acts, by putting the property to some use of which it was susceptible. Judson v. Sharp, 9 Johns. 163 ; Alexander v. Peck, 39 Miss. 754 ; Angell on Limitations, 477, and notes and cases cited supra. The judge to whom the case was submitted did not make a separate finding as to the facts. We have held at this term, that we would treat the judgment of the court on the law and the facts, when brought before us, by bill of exceptions refusing a new trial, as of the same import as the verdict of a jury. If, therefore, in any fair and reasonable view of the testimony, his conclusion on the statute of limitations can be sustained, we ought not to set it aside. But it is clear, setting out of view the testimony tending to prove that the defendant, with the administrators of his father, surrendered possession of the lands in 1866 to the plaintiffs, on the idea that he had the better right, and the possession by the plaintiff, for a time, thereby interrupting the continuity of the adverse occupancy; it is plain, by reference to dates, that the plaintiff was not barred. The defendant’s father went into possession in. January, 1853, under the deed from McLaurin. On the 31st December, 1862, the statutes of limitation were suspended until one year after.the war.' The 2d of April, 1866, the date of the .-President’s proclamation, has been acceped as the time' when the Avar ceased. So that the statutes would be put in motion 2d April, 1867. From January 7th, 1853, to the passage of the suspension act, there intervened a period of nine years, less seven days. The plaintiff had then one year and seven days, after 2d April, 1867, within which to sue. He brought suit 25th April. 1867. — 228 — Conceding that the defendant’s possession had all the requisites to constitute it adverse, it did not continue for the time set up in the plea, deducting the suspension. For these reasons the judgment is affirmed.