Harper v. Tapley

Handy, J., delivered the opinion of the court. This was .an action at law, for the recovery of possession of a tract of land, lying in Rankin county, from the defendants in error. Roth parties claimed title under John Holland; and the plaintiffs, in support of their title, showed a judgment, rendered in Rankin Circuit Court, on the 1st May, 1848, enrolled on the 5th May, 1848, in favor of one Montgomery against John Holland, and an execution thereon, under which the land was sold to them, on the 21st May, 1849, and a regular deed of conveyance executed to them by the sheriff. The suit was instituted on the 9th May, 1855. The defendants pleaded the general issue, and the Statutes of Limitation of seven and of ten years. In support of their title, the defendants offered in evidence, a copy of a deed, executed by John Holland, to Mrs. Tapley, his daughter, dated 28th August, 1841, conveying lands lying in Hinds county, and also the land in controversy, which deed was duly acknowledged before a justice of the peace of Hinds county, and recorded in the probate clerk’s office of that county, hut was not recorded in Rankin county. The plaintiff objected to its introduction ; but the objection was overruled, and it was read in evidence, the plaintiffs excepting. And this is the first error assigned. It is now insisted that, inasmuch as the deed was not recorded in Rankin county, the registration in Hinds county was insufficient under the registry acts, to make it notice to a purchaser of the land in Rankin county, and that it was inadmissible as a registered deed, in this case. This position is clearly correct. The object of the registry acts, was to enable a person about to purchase lands, to ascertain whether they had been conveyed. In order to do this, the place where [510] he must reasonably be led to make the inquiry, is the probate clerk’s office of the county where the land lies. That is the place intended by law for recording the deed of conveyance; and if, upon examination, he finds no conveyance there, he is justified in acting upon the belief that none has been made. If this were not true, á person could not safely purchase land lying in any particular county, without an examination of the probate clerk’s office of every county in the State; for the land which he is about to purchase might be embraced in a deed, conveying, also, land in some other county, and recorded in that county. But, under the circumstances of the case, the deed was admissible as an unregistered deed, and entitled to such wmight-, as such, as it might have, if it should be shown that the defendants went into possession of the premises. It was sufficiently shown, that the original was lost, and it was, therefore, competent to introduce secondary evidence of its contents. That evidence was furnished, in the deposition of Cotton, a witness for the plaintiff, who proved, on cross-examination, that the copy offered in evidence, was a copy of the original deed, made by John Holland, to his daughter. The proof was, therefore, sufficient to admit it as secondary evidence of the lost deed, apart from the force which the paper might have, as a copy of a registered deed; and the copy was properly admitted. The next -error assigned, is the refusal of the court to give to the jury the second instruction asked by the plaintiffs, which is as follows :— “That the notice given at the sheriff’s sale, at which plaintiffs bought, by S. M. Puckett, for Tapley, that John Holland had previously sold and conveyed the land to Mrs. Tapley, does not affect the plaintiffs’ title, unless it is also proved, that such notice was given, or was had, by Montgomery, on the 5th May, 1848, when his judgment was enrolled.” The rule here stated, has been sanctioned by this court, in Henderson v. Downing, 24 Miss. 106. It is, however, objected to, on the ground, that it was an abstract and immaterial proposition, as the evidence showed, that at, and before, the enrolment of the judgment, the defendants were in possession, which was constructive notice. But that was a disputed question of fact, which it would not have been proper for the court to hold as proved in favor of the [511] defendants. If the plaintifFs’ view of the evidence was correct, the instruction was clearly pertinent to the case, and should have been given. But, if the evidence was sufficient to satisfy the jury, of the defendants’ possession at the date of the judgment, or of its enrolment, the jury should have been instructed with reference to that hypothesis, at the instance of the defendants. The instruction should, therefore, have been given. Again; the court instructed the jury, in the first and eighth instructions, on the part of the defendants, that, if the defendants held adverse possession of the premises for seven years, next before the commencement of this suit, they should find for the defendants. These instructions are predicated on the Statute of Limitations of 1844, sections 1 and 2; but these sections were so amended, by the Act of 1854, ch. 39, § 3, as to extend the period of limitation to ten years; and, of course, these instructions should not have been given. The ninth instruction for the defendants is alike erroneous, as it holds the same time to be the period of limitation as stated in the instructions above considered. But it is incorrect for another reason. It holds that, if the defendants held adverse possession of the land for seven years prior to the time of acquisition of the plaintiffs’ title, to wit, 21st May, 1849, the plaintiffs could not recover. If the Statute of 1844 had been in force, it provides that the periods of limitation, thereby established, should commence running from. its date, February, 1844; and the period of seven years, established by it, had not elapsed in May, 1849, when the plaintiffs acquired title to the premises. Another error assigned is the granting of the third instruction, at the instance of the defendants, which is in these words: “ Possession is acquired by going on the land with intention to possess, and possession is lost by leaving the land with intention to abandon it.” This instruction must be taken in connection with the evidence, and with reference to the ground of defence on which the defendants appear to have mainly relied. That defence was, possession and occupancy of the land, with a claim of title under an unregistered deed. The evidence was such as to warrant the jury, if tbcj7 thought proper, to come to the conclusion, that the defendants had [512] taken possession, and were in the occupancy, by themselves, or others for them, of the premises; and if the jury so believed, from the evidence, this instruction was pertinent and proper, especially if they believed that the defendants were in possession at the time the debt, under which the land was sold, was contracted, and at the time the judgment was rendered. • The last assignment, which we deem it necessary to determine upon, is upon the fourth instruction, granted at the request of the defendants, in these words: “ That possession of land is not lost by removing from it, if the party removing, by acts of his, manifests an intention still to use and claim, provided he has a color of title; and a deed is color of title.” This instruction is contended to be erroneous; because the deed, under which the defendants claimed title, was fraudulent and void as to the creditors of the grantor, and therefore could not constitute color of title. But the objection is not tenable; because, 1st. It is founded on the assumption, that the deed was fraudulent, a disputed question of fact in the case; and 2d. Though the deed was fraudulent, on the part of the grantor, and as to his creditors, it was not absolutely void, but was valid as between the grantor and grantee; and was, therefore, available, as giving color of title to the grantee. Hanna v. Renfro et al. 32 Miss. 125. This instruction was, therefore, substantially correct.. Lastly. It is insisted, in behalf of the defendants in error, that, notwithstanding the errors of the court, upon the instructions given and refused, the verdict and judgment are correct upon the whole record, and should not be reversed. The case manifestly depends upon several controverted questions of fact, among which are prominently presented the question, whether the deed, under which the defendants claim title, was fraudulent as to the creditors of the grantor ? and whether the premises were in the possession and occupancy of the defendants, for a considerable period of time ? We cannot know how the jury regarded these questions, and what would have been their verdict upon them. Hence, when erroneous instructions are given in such a case, it is fair to presume that they had their effect upon their minds, and were conducive to the verdict which they found. And it is undoubtedly a correct rule, that if, in a case where the testimony presents doubts as to the material facts involved in the -issue, [513] the court instructs an erroneous rule of law upon a point pertinent to the issue, the instruction must be presumed to have had its effect, and the judgment will be reversed. Judgment reversed, and cause remanded for a new trial.