Hughes v. Wilkinson

Mr. Justice Handy delivered the opinion of the court. Several objections to the judgment in this case have been presented in behalf of the plaintiff in error; but as the merits of the case will probably be determined by two of the points, we deem it unnecessary to consider the others. The first of these points is, that the scire facias, under which the execution was awarded by virtue of which the land in controversy was sold, was void, because it did not contain on its face the names of the heirs and terre-tenants of Rutherford, the original defendant in the judgment; nor did it show the lands of which they were alleged to be heirs and terre-tenants. It appears that the names of the heirs and terre-tenants, though not mentioned in the scire facias, were entered by the clerk'on the back of it, as the parties to be summoned, and that they were summoned by the sheriff It is held that a scire facias against terre-tenants may be either general against all the terre-tenants, or against the terre-tenants, naming them; and though they must all be summoned by the sheriff, it is not necessary that they should be named in the writ. Lord Raymond, 669; Bac. Abr. title Scire Facias, c. 5; 2 Har. & John. 74. The same principle appears to apply to heirs. It does not appear to be necessary to specify the lands in the writ. When the heir is summoned, he can either contest the plaintiff’s right to have execution of the lands which have come to him by inheritance, or he can plead nothing by descent; and as to neither of these defences, is it necessary that the lands should be specified. As to the terre-tenant, he is presumed to know of what lands he is tenant, and under what right he holds them, and cannot be prejudiced by the want of a description of the lands; and in no precedent we have been able to find, is [606] there a description of the lands in the scire facias. 2 Harris, Mod. Entries, 487, 491. The other objection goes to the failure of proof of the title of the plaintiff on the trial below. The plaintiff’s title was derived from one Rutherford. After showing several deeds to antecedent parties, through whom Rutherford’s title was derived, and a deed to him, the judgment against him and his heirs and terre-tenants, and the sheriff’s deed to the plaintiff, the plaintiff, in order to show that both parties claimed title from the same source, offered in evidence and read a deed from one Hyatt to the defendant, and a sheriff’s deed to Hyatt, who was the purchaser of the land at sheriff’s sale under a junior execution against Rutherford. The • defendant then offered in evidence a deed to him from one Wright, also a deed from the tax collector for the land. And under this state of case, the question is presented, whether the plaintiff proved a sufficient title to enable him to recover. It is not denied, that when the plaintiff and defendant claim title from the same source, it is only necessary for the plaintiff to show title in that common source. But the rule is well set-itled, that the defendant is not thereby precluded from showing that he claims title from another source. Wolfe v. Dowell, 13 S. & M. 103; Smith v. Otley, 26 Miss. 291. When, therefore, the defendant justifies his possession by showing that he holds :it under another deed than that shown by the plaintiff, the effect ■ of the proof of title from a common source is destroyed, and ■the plaintiff is put to the proof of his title without regard to the common source of title. Nor is it necessary for the defend•ant to make full proof of the validity of his title. His possession under his deed from a stranger, if it be bond fide and not ■collusive, is sufficient to rebut the proof of title from a common source made out in the first instance by the plaintiff, and to ■cast upon the plaintiff the burden of proving his title by regular deraignment, or of showing that the title set up by the defendant is invalid. If he fails to do this, he neither shows that he iis entitled to the possession, nor that the defendant is wrongfully in possession. [607] The instructions granted and refused by the court below are not in conformity to this view of the subject, and the judgment is therefore reversed, and the case remanded for a new trial.