Scott v. Hereell ( 1908 )

Mr. Justice Robb

delivered the opinion of the Court:

No question was raised by the defendants as to the sufficiency of plaintiffs’ title, and the court, without objection, instructed the jury, in substance, that the record title to said lots was in the plaintiffs. We, therefore, proceed to a consideration of plaintiffs’ assignment of errors.

The first assignment of error relates to the ruling of the court in admitting tax deeds from Bartow L. Walker to Paul J. Brant and from Brant to the Virginia Alabama Company. The first of these deeds is dated in 1894. The court granted defendants’ eighth prayer, which the record discloses “was conceded by plaintiffs,” and which instructed the jury “that the defendants have shown that Frances FL Ball had color of title to the land in question,” and “defendants’ twelfth prayer, which was conceded by the plaintiffs,” and which .reads as follows:

“If the jury finds from the evidence that Frances FL Ball, under color and claim of title to the lots in controversy, leased the same to a tenant as early as the year 1868, and remained in possession of said lots through tenants for the full and uninterrupted period of more than twenty years from that date, and that such possession was open, continuous, notorious, adverse, actual, and exclusive under claim of ownership, then they are instructed, as a matter of law, that, if they should find from the evidence that the plaintiffs have established a record title to said' lots, the possession of said Frances H. Ball, if found by the jury in the manner hereinbefore set forth, destroyed the title of the plaintiffs, and it passed to said Frances FL Ball; and their verdict must be for the defendants, unless you find from the evidence that the defendants entered upon the lots in controversy as mere trespassers.”

Inasmuch as defendants relied solely upon the adverse possession of Frances H. Ball to defeat plaintiffs’ record title, it is evident that the jury must have found for the defendants under the prayer just quoted. That being so, it is of no consequence whether the tax deeds objected to were introduced or not, since their date is subsequent to the ripening of Mrs. Ball’s title by adverse possession. It was not necessary for defendants to rely upon said tax deeds as color of title. While the defendants proceeded to trace these tax titles to themselves, it was not necessary for them to do so. In Reeves v. Low, 8 App. D. C. 105, the contention was made that, in order to defeat a plaintiff in ejectment claiming the record title by proof of an outstanding title by adverse possession in someone other than the plaintiff, the defendant must not only show such outstanding title by adverse possession, but also that the defendant holds the possession for the holder of such adverse title, or claims in his own independent right, the holder of the adverse title still asserting his claim. The court disposed of this claim in these words: “It is beyond question that a plaintiff in ejectment may be defeated by proof of an outstanding title by adverse possession in another person, who is a total stranger to the suit, and between whom and the defendant there is no privity. Smith v. McCann, 24 How. 398, 16 L. ed. 114; Doswell v. De La Lanza, 20 How. 29, 15 L. ed. 824; Love v. Simms, 9 Wheat. 515, 6 L. ed. 149; Harpending v. Reformed Protestant Dutch Church, 16 Pet. 455, 10 L. ed. 1029; Leffingwell v. Warren, 2 Black, 599, 17 L. ed. 261; Dickerson v. Colgrove, 100 U. S. 582, 25 L. ed. 620; Hall v. Gittings, 2 Harr. & J. 125; Hammond v. Inloes, 4 Md. 113; Lannay v. Wilson, 30 Md. 545. * * * It is not necessary that a defendant in ejectment should show in what right he claims, or that he should show any right whatever in himself.” Mrs. Ball having occupied these lots adversely for twenty years, all right of plaintiffs’ predecessor in title was extinguished, and the title in Mrs. Ball was as perfect as though she had produced a deed in fee simple from the true owner; Leffingwell v. Warren, and Harpending v. Reformed Protestant Dutch Church, supra.

The second assignment of error specifies that the court erred in admitting the lease to Leonidas Scott, and in charging the jury that it constituted color of title. No exception wqs noted to the introduction of this lease, but, even if there had been, it would not have availed appellants, because the lease tended to show claim of title by Mrs. Ball. Briel v. Jordan, 27 App. D. C. 202. The court, in its charge, in referring to this lease, used the terms “color of title” and “claim of title” indiscriminately; but the plaintiffs were not prejudiced thereby, because, as previously pointed out, they conceded that the deed of February 25, 1868, to Mrs. Ball constituted color of title.

The third assignment of error relates to the admission of the records of the assessor’s office, but is not predicated upon an exception, and therefore, must be passed.

In the fourth assignment of error it is contended that the receipt from R. L. Stanton to James Jones should not have been admitted in evidence. No objection was offered to the admission of this paper because it was a copy, the objection being that it did not in terms refer to the lots in controversy, and that it was incompetent and immaterial. The witness, who identified the paper, testified that R. L. Stanton was the agent of Mrs. Ball at the time the receipt was given, and that James Jones, to whom it was given, occupied lots 7 and 8, and did in fact pay rent for the use of said lots to his aunt. Mrs. Ball, Mr. Stanton, and James Jones were dead. Clearly, had the original receipt been produced, it would have been admissible in connection with evidence identifying the lots. As no objection was offered because the paper was a copy, it is too late now to make the point.

The assignment of error involving the proof of the execution of the will of Frances H. Ball by the testimony of one subscribing witness, the second witness being dead, and the third being a nonresident, is without merit. Section 132 of the Code specifically provides that, if the testimony of the resident witness is taken and any other witness resides out of the District, it shall be sufficient to prove the signature of such nonresident witness; and that the will shall thereupon be admitted to probate.

The next assignment of error necessary to be noticed relates to the granting of defendants’ seventh prayer, which as amended by the court, is as follows: “In determining the facts as to adverse possession by the defendants, and those under whom they claim; the jury are instructed that the entering upon the lots in controversy, making improvements thereon, digging clay therefrom (for making and) depositing brick or other material thereon, the erection and maintenance thereon of a stable or other structures, are all circumstances which, if they find from the evidence were done by the defendants, or those under whom they claim, or the tenants of those under whom the defendants claim, are all facts which, if done under color of title, evince an intention of asserting ownership and possession; and, if such use and occupation are continued for more than twenty years prior to the institution of this suit in the manner set forth in the first prayer, the jury should find in favor of the defendants.”

The ground for this objection is that it permitted the defendants to select for the jury detached and inconclusive facts and circumstances favorable to the defendants. We do not think the charge is subject to this objection. It is a fair synopsis of the testimony. Inasmuch as the plaintiffs rely solely upon their record title, it is obvious that there were no facts and circumstances put in evidence in their behalf to which the attention of the jury might have been directed in this charge.

Other exceptions were noted, but they are not of sufficient importance to merit consideration here.

The judgment is affirmed, with costs, and it is so ordered.

Affirmed.