McCaughn v. Young

Truly, J., delivered the opinion of the court. This is an action of ejectment instituted by George Young, appellee. On the trial hereof in the circuit court, plaintiff, having established his record title, closed his case. At the conclusion of the testimony for the defendant, McOaughn, appellant here, the court gave a peremptory instruction for the plaintiff, and this action of the court is assigned as error. It is well settled in our state that, where a peremptory instruction is given, the losing party is entitled, upon the review of the action of the court, to have all facts in his favor considered as true. A peremptory instruction is proper only in cases where, with all the facts in evidence taken as true, with every inference from them, they fail to maintain the issue. Whitney v. Cook, 53 Miss., 551; Railroad Co. v. Boehms, 70 Miss., 11 (12 South. Rep., 23). Appellant, therefore, is entitled to have all the facts testified to in his behalf accepted as true upon our consideration of this record. Those facts are: That George Young, prior to 1885, had been the owner of the land in controversy»; that about that date he executed a trust deed, or mortgage with power of sale, on the land to W. I. Crowley, beneficiary, and IT. C. Johnson, trustee; that this instrument was foreclosed by public sale on January 11, 1887, at which sale A. B. Bozelle became the highest bidder, and the — 287 — land was struck off to him, and a deed executed by the trustee conveying the land; that Young was aware of the fact that his land was about to be sold, and was advised of Nozelle’s intention to purchase, and, after the sale, was notified by Nozelle that he had bought the land and claimed it under the deed from the trustee; that thereafter Nozelle paid the taxes upon the land in his own name or that of his wife, entered into possession, erected a sawmill upon an adjoining tract, cut all the timber suitable for milling from the land, and sold the remainder to parties for cross-tie purposes; and he publicly offered the land for sale, and executed trust deeds thereon to secure a certain indebtedness which he owed. Under one of such trust deeds, after Nozelle had left the state in 1892,the property was sold and purchased by the Adams Machine Company, which remained in possession, paying taxes, and offering the same to the public for sale, until the year 1900, when appellee purchased from the machine company and entered into actual occupancy, cutting and deadening timber and clearing the land for cultivation, and had, prior to the institution of this suit, on the 29th of August, 1902, cleared seven and three-fourth acres and deadened half the entire tract. It was further in proof by several witnesses that Young knew of the claim that Nozelle made to the land, and knew that the land had been sold under the trust deed which he had executed in favor of Johnson, trustee; and that on one occasion, after appellant had entered into occupancy of the land, the appellee had a conversation with him, in which he spoke of desiring to purchase some land, but made no claim to having any interest in the title to this land, for which he afterwards instituted this suit. The court, in its ruling on the motion to exclude the testir mony in behalf of the defendant, stated that the proof failed to show that the defendant, McCaughn, had acquired title to the land, either by conveyance or adverse possession. To sustain this ruling of the court, it is said by counsel for appellee, as to the first ground, that the action of the court was correct — 288 — in holding that appellant had no title by conveyance, for the reason that the trust deed which the witnesses testified that Young had executed to Johnson, trustee, was not of record, and its loss not sufficiently proven. Under the general rule, as stated, the facts testified to in behalf of appellant upon every issue must be accepted on this hearing as true. We find, therefore, that the fact of the existence of the trust deed or mortgage is proven by the direct and positive testimony of the witness Rozelle, who stated that he had seen the instrument in question, had read it on the very day on which the land had been sold under its terms; that it was executed by George Young, whose signature he knew; that the beneficiary was Orowley, an'd the trustee Johnson; that he was familiar with the mode of foreclosure of such instruments, and, so far as he knew, the sale in question was regularly and formally made by public outcry to the highest bidder, and a deed executed by the trustee, in pursuance of such sale, and delivered to him as purchaser. This proof of existence, in the absence of all contradiction, was ample, and the proof of loss of the instrument, so as to account for its non-production and justify the admission of testimony of its contents, equally so. More than fifteen years after the foreclosure and sale under the lost instrument had elapsed before the institution of this suit. During that time the beneficiary had died, his storehouse burned, with a large part of his business papers, search had been made among all his papers known still to be in existence, the trustee had died, and actual search was made among all his papers where a trust deed might probably have been. In addition, search was made of all records of the proper chancery clerk’s office, without success. Under such circumstances, in viewr of the great lapse of time and the various changes wrought by death, this proof was sufficient to make proper the admission of secondary evidence as to the contents of the lost instrument. It is said, however, that, granting the existence and loss of the instrument, still the deed from the trustee to Rozelle, pur — 289 — porting to convey the land in question, was void because of its failure to contain recitations showing the power under which the trustee made the sale, and that the terms and conditions of the instrument under which the sale was alleged to have been made had been substantially complied with. The deed under consideration simply states that the grantor Johnson, “as trustee,” in consideration of a certain sum in cash paid to him “as trustee,” conveys the land now in controversy to Rozell, the grantee. The deed contains no reference to any grant of power to the trustee authorizing him to act, and there is no recital of the performance of any of the formalities usually incident to foreclosure of similar trust deeds, or mortgages with power of sale, such as are always inserted by the careful conveyancer. The established rule is that a trustee who undertakes to execute a trust, vested in him by a sale of the trust estate must follow the mode, manner, and terms prescribed by the deed under which he claims grant of power, and the sale will not be valid if there is any material failure in this regard. If, as a matter of fact, the directions of the trust deed be adhered to in all substantial matters, the mere failure to recite in the deed the power under which.the trustee acted, or that the conditions of the trust in conducting the sale were observed, will” not, as a matter of law, annul the sale or invalidate the deed executed by the trustee to the purchaser. 2 Jones on Mort., sec. 1889. When a deed executed by a trustee purports to convey as trustee a certain estate, the presumption of law is, not only that the recitals of the deed are true, but that all essential conditions were complied with in making the sale. When such a deed is sought to be avoided on the ground of irregularity or failure to comply with the terms of the power in making the sale, the burden, at all events after proof of power in the trustee, is upon the party seeking to avoid the deed to prove the existence of such invalidating irregularity. When a sale in pais is made by a trustee under an instrument conferring upon him a power of sale on the happening of certain contingencies, the rule is — 290 — thus stated in Enochs v. Miller, 60 Miss., 21: “The making of the deed is'prima facie evidence that the sale was properly made, and will throw upon him who attacks or resists it the burden of showing the contrary.” Graham v. Fitts, 53 Miss., 307; Tyler v. Herring, 67 Miss., 169 (6 South. Rep., 840; 19 Am. St. Rep., 263). The case of McMahan v. B. & L. Ass’n, 75 Miss., 969 (23 South. Rep., 431), cited by appellee, is no authority for a contrary view, for in that case the sale was made “in disregard of the plain provisions of the instrument,” and that fact was shown affirmatively by the record. This is in accord with the view expressed in Enochs v. Miller, supra, which is supported by the great weight of authority. Burke v. Adair, 23 W. Va., 139; Farrar v. Payne, 73 Ill., 82; Lunsford v. Speaks, 112 N. C., 608 (17 S. E., 430); 2 Jones on Mort., secs. 1830-1895. We refer specially to the recent case of Atkinson v. College, 54 W. Va., 32 (46 S. E., 253), where, after a full discussion of the rights of parties growing out of sales by trustees, the conclusion of the court is thus stated: “Hence, as against a third party, one in no way connected with the deed of trust except by his act of purchase, and in no way charged with the responsibility for the regularity- of the proceedings, nor having: power of control over them, nor affected with any notice of irregularities or equities, reason, justice, and authority make it manifest that the complainant must take upon himself the burden of showing wherein the sale is illegal, or an equity against the purchaser arises in his favor. It is the assertion of a cause of action, the whole burden of which is upon the plaintiff.” In the instant case it was incumbent upon the appellee, if he desired to resist the effect of the deed from Johnson, trustee, to Bozelle, to have proven that the sale in pursuance of which the conveyance was executed was void by reason of a failure on the part of the trustee to follow in some essential particular the terms prescribed by the trust deed. This he did not undertake to do. There being no evidence of any extrinsic matters affirmative — 291 — ly showing any lack of regularity in the sale by the trustee, appellant was entitled to have the following facts considered as established and true: That appellee had executed a trust deed to Johnson, trustee; that the land in controversy was included therein; that the instrument was foreclosed, and the deed in evidence executed in pursuance thereof. These facts, joined to the legal presumption of correctness which attached to the deed of the trustee, warranted the submission of the issue to the determination of the jury. In the absence of all denial, it was error to peremptorily charge against appellant on this ground. He was an innocent purchaser without notice, in possession, and is protected by his deed until that is overthrown. Nor can we sustain the action of the court in withdrawing from the consideration of the jury the evidence tending to prove appellant’s title by adverse possession. The essential elements which are necessary to constitute an effective adverse possession are generally recognized. The occupancy must be hostile, actual, open and notorious, exclusive and continuous for the statutory period. Accepting as true all the facts showing possession by appellant and his vendors, and giving him the benefit of all legal inferences to be drawn from the evidence, does that possession fulfill the tests applied by the general rule announced ? That the occupancy of Hozelle and those claiming, under him was hostile to any claim of title by appellee is obvious. Nozelle entered into possession under a deed conveying the specific property, and notified the grantor in the deed of trust, the former owner of the land, that he had purchased and held the land as owner. Even had it been shown that the sale conducted by Johnson, trustee, was void on account of some irregularity of which the purchaser had no knowledge, the deed which he delivered in consideration of the bona fide payment of the purchase money was sufficient basis of title to render the subsequent occupancy of the purchaser hostile to the former owner of the land. In order to constitute adverse possession the occupancy must, generally speaking, be visible and noto — 292 — rious, with intent to claim title as against the world. But in view of the fact that property was often of such a character and so situated that actual occupancy was impracticable, if not impossible, the rule was gradually relaxed as to such property. The true doctrine, and the one now generally recognized, is thus stated by Harris, L, in Ford v. Wilson, 35 Miss., 490 (72 Am. Dec., 137): “That neither actual occupation, cultivation, or residence is necessary to constitute actual possession when the property is so situated as not to admit of any permanent, useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right and would not exercise over property which he did not claim.” Worthley v. Burbanks, 146 Ind., 534 (45 N. E., 779); Hubbard v. Kiddo, 87 Ill., 578; 3 Washburn on Beal Property, see. 1965. “It is not necessary that the occupation should be such that a mere stranger passing the land would know that some one was asserting title to a dominion over it. It is not necessary that the land be cleared or fenced or that any building be put upon it. The possession of land cannot be more than the exercise of exclusive dominion over it.” 2 Wood on Limitations, sec. 267. In the instant case the record shows that the lands in controversy, from 1885 until 1900, when appellant entered into actual occupancy, were what are denominated “wild lands,” lying in the midst of a v^st area of swamp woodland, not susceptible of occupancy, improvement, or cultivation, or of any remunerative or productive use. The test of what constitutes adverse possession of such property must of course be different from that which would be appplied with reference to cultivated lands or property susceptible of actual use and occupation. The question is, Did the person claiming to hold adversely exercise toward the property the same character of control which he used toward property actually his and which he would not have used over property which did not belong to him? In this case Bozelle had the land assessed to' him, and — 293 — lie and those claiming under him, for a long term of years, paid all the taxes on the property without question from appellee or any one else. This of itself is a potential fact in proof of a hostile assertion of title by the party paying the taxes. Discussing the question of the payment of taxes as evidence of adverse possession, the supreme court of the United • States says: “Payment of taxes, as described in the above statement of facts, is very important and strong evidence of a claim of title; and the failure of the plaintiff’s predecessors to make any claim to the lot, or to pay the taxes themselves, is some evidence of an abandonment of any right in or claim to the property. In Ewing v. Burnet, 36 U. S. (11 Pet.), 41 (9 L. ed., 624), it was held by this court that the payment of taxes on land for twenty-four successive years by the party in possession was powerful evidence of the claim of right to the whole lot upon which the taxes were paid. The same principle is held in Fletcher v. Fuller, 120 U. S., 534, 552 (7 Sup. Ct., 667, 676; 30 L. ed., 759, 764). It is some evidence that the possession was under a claim of right and was adverse.” Holtzman v. Douglas, 18 Sup. Ct., 65 (42 L. ed., 466). The facts of this case bring it plainly within that statement. Appellant and his predecessors paid the taxes for a long term of years, during which .the appellee neither paid taxes nor asserted any claim to the land. In addition to the payment of taxes, Bozelle used the timber from the land in the same way and to the same extent that he used timber from other lands admittedly his; he sold, timber from the land to others with the knowledge of appellee •; he placed mortgages of record on the land, and offered the same for sale to the public. This was the same character of control which he exercised over other property which he owned, and was the only manner in which any one could, at the time in question, have asserted ownership or exercised dominion over property of the same character similarly located. The underlying principle on which is. founded the rule requiring that possession must be open and notorious before it — 294 — can be considered adverse to the real owner is that such character of possession is presumptive notice to the true owner of such possession and adverse claim. But the rule does not apply in cases where the party against whom the adverse claim is asserted has actual knowledge of such adverse possession. A possession which is adverse and actually known to the true owner is equivalent to a possession which is open and notorious and adverse. Dausch v. Crane, 109 Mo., 336 (19 S. W., 61); Clark v. Gilbert, 39 Conn., 94; Alexander v. Polk, 39 Miss., 737; Ford v. Wilson, supra. The doctrine is concisely stated in this form: “If the owner have actual knowledge that the possession is adverse to his title, the occupancy need not be open, visible, and notorious. Notoriety is important only where the adverse character of the possession is to be brought home to the owner by a presumption.” See 1 Oye., p. 999, par. c, and cases cited. The appellee insists that the absence of Bozelle from the state for several months prior to the date at which the Adams Machine Company acquired his title to the land was an abandonment of the possession, and constituted a break in the continuous occupancy necessary to ripen a claim into a valid title. The record contains no circumstance from which an intention to abandon his dominion over the land or surrender his claim of title thereto can be inferred. “Possession of land is acquired by an entry on it, with the intention to possess it, and is lost by leaving, with an intention to abandon it.” Harper v. Tapley, 35 Miss., 506. Rozelle’s entry and possession was not stealthy or clandestine, but open and notorious, with the knowledge of the appellee. His possession was exclusive, undisputed, and adverse, and under a muniment of title which, even if voidable, constituted a color of title, and the record shows no such state of facts as warranted the trial court in charging as an undisputed fact that the required continuity of occupancy had not been established. “Possession of land once acquired is not lost by a removal from it, if the party removing has color — 295 — of title and by his acts manifests an intention still to claim and nse it.” Harper v. Tapley, supra; Ford v. Wilson, supra; Aldrich v. Griffith, 66 Vt., 402 (29 Atl., 376); Crispen v. Hannaran, 50 Mo., 549; Moore v. Hinkle, 151 Ind., 346 (50 N. E., 822). The testimony of Rozelle, standing as it does uncontradicted, shows no intention on his part to surrender his possession, and he continued to treat the land as his own by paying taxes and offering the same for sale. Nor did appellee consider the land as abandoned; for he made no effort to reenter, and, according to the statement of appellant, impliedly acquiesced in and recognized appellant’s assertion of ownership —made no claim of title even when appellant had entered into actual occupancy and was engaged in deadening the timber and clearing the land. Accepting the facts stated in the record as true, and giving the appellant the benefit of the legal inference justly deducible therefrom (as, in view of the peremptory instruction, we are bound to do), we are constrained to reverse the judgment and award a new trial. We confine ourselves to a consideration of the two grounds on which the trial judge based his action in granting the peremptory instruction, without passing upon other assignments of error not necessarily involved in this decision. Reversed and remanded.