Hutto v. Thornton , 44 Miss. 166 ( 1870 )

Taebell, J.:

This is an action of ejectment instituted in 1858. The defendants disclaimed as to a portion of the lands, and, as to the balance, pleaded the general issue, and three special pleas to which there was no replication.

Those pleas are as follows :

1. That the right of action accrued more than ten years before suit.

2. That the right of action did not accrue within ten years.

3. Peaceable adverse possession fo-r more than ten years.

The cause was tried at the Leake county circuit court, August term, 1860, and resulted in a verdict for defendants, whereupon the plaintiff in the action prosecuted this writ of error.

Of the several alleged causes of error, we do not deem it necessary to discuss, other than the neglect to dispose of the special pleas, and two points presented by the instructions for the defendant.

As to the special pleas, the statute only allows the plea of not guilty, under which all matters of defense may be proved.

These special pleas are, therefore, nullities. Art. 3, ch. LV., 336, Rev. Code.

In the first instruction for the defendant the court holds the deed from Malone to plaintiff to be void if the jury believe the defendants to have been in the adverse possession of the lands sued for, at the time of its execution and delivery, ignoring knowledge of such, adversing holding on the part of plaintiff. In this, the instruction is erroneous. 39 Miss., 737.

The theory of the defense is an adverse holding; but the instructions proceed upon a continuous possession, in bar of a recovery under the statute, pretermitting an adverse possession, which is erroneous. 36 Miss., 40; 30 ib., 397; 37 ib., 138 ; 27 ib., 665.

There are several records in this case, and it is somewhat uncertain whether the cause was fully presented upon the trial.'

Being of the opinion that the foregoing are substantial errors, the cause must be sent back for a new trial. Upon another hearing the parties can make a more complete presentation of the case, and should it come again to this court, it is hoped the merits will be clearly developed in a professionally arranged record.

The judgment is reversed and the cause remanded.