Welborn v. Anderson

Smith, C. J., delivered the opinion of the court. This suit was brought in the Circuit Court of Jones county, by the defendant in error, to recover the possession of a certain tract of land. The defendant pleaded first the general issue; second, that he and those under whom he claimed had been in the actual, adverse, and uninterrupted possession of the premises, claiming to be the owner of the same, under regular conveyances, for the period of ten years next before the commencement of the suit; and third, that the plaintiff’s right of action did not accrue within seven years next preceding the institution of the suit. The cause having been submitted to a jury, a verdict was found for the plaintiff; whereupon the defendant moved for a new trial, which being refused, he excepted, and prosecutes this writ of error. On the trial, the defendant in error offered in evidence and read to the jury a patent from the Government of the United States, conveying the northwest quarter of the northeast quarter of section No. 3, of township No. 7, of range No. 12 west, to Allen Anderson; and a deed, duly executed, by the said Anderson and his wife Mahala, conveying the same land to himself. He then offered a witness, who testified that he knew the lines of the land in controversy; that the defendant was in possession of a part of the land at the commencement of the suit; that the north and south line on the east side of the land embraced by the patent included about twenty feet of the defendant’s dwelling-house, and a portion of his stable and farm lot; that plaintiff was and had been in possession of all of said lands since about 1835. The plaintiff had a gin-house and some improvements on it; also a portion of his dwelling and negro houses, (but) that the part in possession of the defendant was — 160 — never inclosed by the plaintiff; that the line was an unmarked open line; and that in running it he commenced at the northwest corner of the section, which was a large one, containing 682 acres; that there was no corner-post standing, and that he ascertained the starting-point by finding where the two lines crossed, and by information of others. This witness, on cross-examination, proved also that he had made a survey of lot No. 12, on the plat of the town of Ellisville; that said lot, according to the plat and survey of said town, contained the entire improvements of the defendant; and that it extended over the line, as run by him, between the said town and the plaintiff’s land, as described in the patent, about thirty-two feet. This was all the evidence material to be considered, which was offered by the plaintiff. The defendant then offered to read as evidence a deed executed on the 15th of July, 1852, by James Parker, which purported to be a conveyance in fee of lot No. 12, in the town of Ellisville, from the said Parker to the defendant. The deed was offered as evidence of defendant’s title, and also to characterize the possession, alleged to have been held by him of the land in controversy. The deed was excluded, upon the objection of the plaintiff, and the defendant excepted. The defendant next offered to read a deed, executed November 11th, 1844, by David N. Carlile, the president of the board of police of Jones county, purporting to be a conveyance in fee of certain lots in the town of Ellisville, including the said lot No. 12, from the said Carlile, as president of the board of police, to one Joel E. Welborn. He also offered to read as evidence, from the minutes of the said board, an order directing that the title to the town lands belonging to the county of Jones, lying around the public square of Ellisville, not theretofore made by the commissioner or trustee, be made to the president of the board of police and his successors in office, &c.; which were objected to by the plaintiff. His objection was sustained, and the defendant excepted. The defendant offered then, a deed bearing date the 26th of January, 1847, executed by the said Joel E. Welborn, duly proved and recorded, conveying a number of lots in Ellisville, amongst — 161 — •which was included the aforesaid lot No. 12, to the said James Parker. This deed was also, upon the plaintiff’s motion, excluded, and the defendant excepted. Parol evidence was then offered to prove that defendant and those under whom he claimed had held actual, continued, and adverse possession of lot No. 12, from the date of Carlile’s deed to said Welborn, down to the commencement of this action. This evidence was also ruled out, and the defendant again excepted. Additional evidence was adduced by the defendant, but which it is not material to notice, as no exception is taken to the verdict, on the ground of the insufficiency of the evidence to sustain it. The exceptions taken to the judgment in this case apply to the action of the court in excluding the evidence for the defendant as above stated. First it is insisted that the court erred in ruling out the deed purporting to be a conveyance of certain land, including lot No. 12 in the town of Ellisville, from James Parker to the defendant. This lot, at least that part of it which was supposed to lie within the boundaries of the patent from the Government to Allen Anderson, was the subject-matter of the suit. This exception is, manifestly, well taken. The reasons assigned for the exclusion of this deed are plainly erroneous. If the defendant relied upon a paper title, the deed from James Parker was an indispensable link in the chain of title. ITe may, from aught which the court could then know, have claimed under a conveyance from the original patentee of prior date to the deed from him to the plaintiff. The defendant was not restricted to any particular order in the introduction of his evidence. The deed was clearly, therefore, competent evidence, as the court could not, in advance of any evidence adduced by the defendant in reference to the. subject, determine that the deed was invalid upon the assumption that the land of which it purported to be a conveyance, was held adversely to the grantor. Again, under the issues joined between the parties, Parker’s deed to the defendant was proper evidence to explain the nature and character of the alleged possession relied o.n as vesting an absolute title in the defendant, or as barring the right of entry in the plaintiff. It served to show the quo animo with which the de — 162 — fendant had taken and held possession of the premises in dispute. And it was perfectly immaterial, in this view, whether th,e adverse possession claimed under Parker’s deed, had or had not continued for a period sufficient to bar the plaintiff’s right of entry. He based his defence not only upon his own adverse possession, but upon the adverse possession of those under whom he claimed. Secondly: it is contended that there was error in excluding the deed from the president of the board of police to Joel E. Wel-born ; the order from the minutes of the board, directing that the title to the unsold lands, belonging to the county and lying around the public square in Ellisville, should be made to the president of the board and his successors in office; and the deed from said Wel-born to Parker. The deed from the president of the poard of police was ruled out, for the reason that it did not appear that he had authority to make the conveyance; and for the following reasons also, which were likewise grounds of objection to Welborn’s deed; to wit, that the defendant having offered the deed from Parker to himself as the foundation of his title, and as constituting color or claim of title, was not to be permitted to depend upon a title, or to show color of title, derived from any other source. And also that said deeds were void, having been executed while the land was in the adverse possession of the plaintiff. In deciding upon the competency of the deed from the president of the board of police as evidence in the cause, it is not material to determine whether that instrument was valid or invalid. It was in proper form, duly executed and recorded, and purported to convey the fee. Under the issues joined between the parties, it was perfectly immaterial whether or not the president had the legal authority to make the conveyance. According to all the authorities, that deed, as well as the deed from Welborn to Parker, constituted a colorable title. And it is settled that 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. Thomas v. Jackson, 16 John, 293; Jackson v. Wheat, 18 Ib. 40; Ib. 365; Ewing v. Burnitt, 8 Peters, 41; 7 Wheat R. 355; Brashear v. Hewitt, 4 Harr. & McHenry, 222; La Frombois v. Jackson, 8 Cow. R. 539. — 163 — The second reason assigned for excluding both of the deeds, requires no comment. And the third ground on which the court proceeded in ruling them out is clearly erroneous and untenable. The question whether these deeds were executed while the plaintiff was in the adverse possession of the land, which they affected to convey, was a question of fact which the court was incompetent to decide. Rut if it were conceded that the assumed adverse possession of the plaintiff at the date of the execution of the deeds was a matter which the court had a right to determine, its action was none the less erroneous. At the stage of the examination when the deeds were ruled out, upon the ground that the plaintiff was in the adverse possession when they were executed, the defendant had offered no evidence in respect to his possession. It was hence impossible for the court to determine the question, unless, disregarding the rights of the defendants, it based its decision exclusively upon the plaintiff’s evidence. It is scarcely necessary to add that in any view which can be taken of the subject, this action of the court is incapable of justification. Thirdly: it is insisted that there was error in rejecting the evidence offered to prove continued adverse possession in the defendant, from the date of Carlile’s deed down to the commencement of the suit. It is manifest that in excluding this evidence, the court proceeded upon the principle that color of title was essential to the protection of the defendant’s possession. In other words, that within the meaning of the statute, no possession can be adverse, unless taken and held under a colorable title. It is well settled that when a party enters into possession under a colorable title, and holds adversely, that his possessions construed to be coextensive with the premises, as described in the deed or will under which he claims, and which he believes gives him a sound title. The rule is different in regard to a mere intruder. Reason and authority unite in confirming his possession to the land actually in occupation. “ When a man, not claiming any right or title to the land, enters upon it, he acquires no seisin but by the ouster of him who was seised; and to constitute an ouster of him who was seised, the disseisor must have the actual and exclusive occupation of the land, claiming to hold it against him who was seised.” Pro — 164 — prietors of Kennebeck Purchase v. Springer, 4 Mass. R. 416. But without doubt the possession of a mere intruder will be protected to the extent of his actual occupation. Grafton v. Grafton, 8 S. & M. 77. “It is believed,” says Chancellor Harper, “that no case can be put in which a private individual knows that another person claims, and is in the actual enjoyment of land, which belongs to him, and neglects to prosecute' his right at law, where there is nothing to' prevent his doing so, that he will not be barred by the Statute of Limitations.” Drayton v. Marshall, 1 Rice Eq. Rep. 373. If, therefore, the defendant was in the actual occupation of lot No. 12, the premises in question, claiming title, and holding it adversely to the 'plaintiff, and such occupation was continued in him, or those under whom he claimed, for the requisite period, his defénce was complete. The evidence offered was intended to prove these facts; it is hence manifest that there was error in excluding it. Judgment reversed,' and cause remanded for a new trial.