Gordon v. Sizer

Handy, J., delivered the opinion of the court: This was an action of ejectment, brought by the defendant in error to recover a parcel of ground in the city of Jackson. On the trial in the court below, the plaintiff, in support of his title, offered and read in evidence a deed to him from one Pierce for the premises, dated 15th February, 1853, conveying "the northern portion of lot No. 1, in square No. 3 south, being twenty feet lying and fronting on State street, and also one hundred feet, except about four feet at the west end of said lot, which I may have previously conveyed, and if not, then I hereby convey the one hundred feet as aforesaid, lying and fronting on Pascagoula street, of said lot No. 1, in square No. 3 south,” &c. The ground in controversy was the four feet, part of the one hundred feet mentioned in this deed, and being an alley about four feet wide between two lots belonging to the plaintiff. He further proved that Gordon and wife owned and occupied a house on State street, near the corner of that and Pascagoula street, fronting on the former, and running back parallel with the latter street, and that they used this alley as a passway from the back part of their residence to Pascagoula street; that Gordon had closed up the alley, and refused to permit any person to pass through it; that he held the sole and exclusive possession of the alley from the time he first occupied the adjoining house, the alley being the only means of access to Pascagoula street from said house, and refused to permit access to it from doors proposed to be made in the houses of the plaintiff on both sides of the alley. It was shown that when one of these houses was about to be enlarged and extended towards the alley, in 1853 or 1854, the plaintiff pointed out where the foundation of the building should be laid, and that there was some space of open ground left on the side where the alley lay. On the part of the defendants, it was in evidence that Mrs. Gordon purchased said house and lot occupied' by the defendants from said Pierce in 1849 ; that Pierce gave possession at the time of sale, and omitted to include the right to use the alley, [818] but frequently promised to convey tbe same to her; that; at tbe time of sale, be put Gordon in possession of tbe alley, for tbe use and benefit of tbe lot sold to Mrs. Gordon and of the adjoining property of Pierce subsequently sold to tbe plaintiff, for which Gordon paid him fifty dollars, and Pierce promised to execute to him a conveyance ; that afterwards, in tbe year 1850 or 1851, Pierce executed to Gordon a deed conveying to him tbe right to pass over and use said alley, as a passway from bis bouse, in conjunction with any other persons in possession of tbe other lots adjoining tbe alley; which deed was not acknowledged nor recorded, but was lost and could not be found. Upon these facts judgment was rendered for the plaintiff, and tbe defendants prosecute this writ of error. Tbe first error assigned is, that tbe court below overruled tbe defendant’s objection to reading in evidence tbe deed relied on by tbe plaintiff. This objection was on tbe ground that an interlineation which appeared on the face of the deed, on tbe first page, as to a material part.of tbe description of tbe premises conveyed, was not shown to have been made bófore tbe execution of tbe deed. But it appears that these words, interlined in tbe first part of the deed, are contained and repeated in tbe latter part of it, where they are not alleged to be interlined. This shows that tbe words interlined were intended to be inserted in tbe deed, and raises tbe presumption that tbe interlineation was made either before execution or by consent of tbe parties ; or it would render tbe alteration immaterial, since tbe omission of tbe interlined words would only render tbe description of tbe premises in that part of tbe deed obscure and uncertain, and tbe use of tbe same words in the subsequent part would show what was intended, and render tbe former description certain and clear. In either of these views tbe objection was properly overruled. Without intimating any opinion as to whether tbe objection is applicable to deeds or other instruments than such as are negotiable, we think that it was not well taken in the case presented.. Tbe second assignment of error is taken to tbe first instruction granted at tbe instance of tbe plaintiff) “ that no conveyance of * and, or of any interest therein or right of way over tbe same, [819] can be conveyed except by deed in writing, proved before tbe jury, or otherwise proved and recorded as required by law.” The objection urged to this instruction is, that a deed regularly executed, but not acknowledged and recorded, is only void as to purchasers witho ut notice ; and that the omission of this qualification in the instruction deprived the defendants of the benefit of showing that the plaintiff was a purchaser with notice of the defendants’ interest. The point of the instruction appears'to be, to state the modes in which a conveyance of land or of an interest therein must be.proved; and the rule stated in that respect is correct as the general rule, though it is not stated with much clearness or precision in the instruction. The qualification to it, insisted upon for the plaintiffs in error, is fully stated in the fifth instruction given at their instance; so that no prej udice was done to them by the first instruction. The third error assigned is the overruling of the second, fourth, and sixth instructions asked in behalf of the defendants. The second instruction required tbe plaintiff to show a regular deraignment of title to the lot in controversy “from the United States or otherwise.” But it appeared by -the evidence that both parties claimed title from a common source, Pierce; and it was therefore unnecessary that the plaintiff should trace the title further back than that source. In this respect the instruction was erroneous, and this error was not cured by the addition of the words, “ or otherwise,” for this was too uncertain; and it was not proper to leave it to the jury to determine what other mode of proof of regularly derived title was sufficient besides that from the United States. By the fourth instruction it was necessary that the plaintiff should prove a joint possession in both defendants, in order to recover. It is insisted that no recovery could be had against Mrs. Gordon, because there was no proof that she was in possession of the alley. It appears by the evidence that she was the owner of the lot to which the alley was the only means of access from the back part; that the right of way over the alley was agreed by Pierce to be granted to her when he sold her the lot; and that Gordon’s possession was for the use and benefit of that lot and the adjoin [820] ing lots. It was a right of way appurtenant to the lot of Mrs. Gordon, and whatever possession of it was held by Gordon was for the use and benefit of her lot. Under these circumstances, the use and possession of the alley was joint in Gordon and his wife, and the instruction was calculated to mislead the jury. But, in addition to this, a recovery might have been had against one defendant and not against the other, if the proof had shown that possession was held by one and not by the other. This instruction was therefore properly refused. The sixth instruction was correct as an abstract proposition. But it was properly refused under the circumstances of this case. The possession of cultivated or improved land, such as town lots, which will be sufficient of itself to give notice of an adverse claim, must be actual, visible, and notorious. Magee v. Magee, 37 Miss. R. 138. It must be such an open and notorious use and occupation, exclusively, by the party claiming it, as will reasonably give notice to the world that the party claims an interest in the subject of it. Here there was no such possession. The alley was an open space of four feet of ground, from the street to the back part of the defendants’ lot, and which might have been used as a passway, as well by the owners of the two houses adjoining it as by Gordon. It was not enclosed from the street, and there was nothing to show that he claimed the exclusive right of possession of it; and, in point of fact, he does not claim that right. Possession of such a character is not sufficient of itself to give notice. The right of Gordon was a mere incorporeal hereditament, of which actual, visible possession is not predicable. The last assignment of error presents the question of the correctness of the j udgment upon the merits of the case. It clearly appears from the evidence that the defendants had an interest, consisting of the right of way in the alley, in common with the persons who owned the adjoining lots, at the date of the deed from,Pierce to the plaintiff. It is also evident that the plaintiff had actual notice of this claim or interest; for he applied to Gordon, through Allen, for his permission to cut a door in his housa adjoining the alley, for the purpose of having access to the alley and the use of it; and in extending his house, he [821] pointed out tbe place where the foundation was to be placed so as not to interfere with the alley.- He had also sufficient to put him on inquiry by the terms of his own deed, referring to the possibility of Pierce having previously made a conveyance of the alley or of an interest in it to some one. Supposing, therefore, that he had notice of some claim on the part of the defendants, and that he made inquiry of them as to the nature and extent of it, he must have ascertained that they had but the right of way in the alley in common with himself; for that was the whole extent of their interest granted in the unrecorded deed. They had no conveyance of the land. He was, therefore, at liberty to purchase the land and to take a conveyance to himself; and he accordingly, took the deed from Pierce relied on as the conveyance of the title to him. That deed by its terms'conveyed the alley in fee to him, unless Pierce had previously conveyed it to some 'one else ;"aa’d'there- being, no such conveyance to another person, the deed vested the fee in him. Before the conveyance by Pierce to the plaintiff Pierce held the title in fee to the alley, subject to the right of way oí the defendants in common with the plaintiff the owner of the adjoining lots. After the conveyance, the fee was vested in the plaintiff subject to the same right of the defendants. In this action, the legal title alone was the subject of controversy. And under the state of facts here presented, the plaintiff having the legal title in fee to the alley, was entitled to recover in the action. But this title is to be held subject to the right of way of the defendants granted in the deed to Gordon, and of which the plaintiff must be taken to have had notice. Hpon the merits of the case, therefore, as presented upon the record on the motion for a new trial, the judgment is correct and is affirmed. „