Tegarden v. Carpenter , 36 Miss. 404 ( 1858 )

HaNdy, J.,

delivered the opinion of the court.

This action was brought by the defendant in error, to recover a tract of land in the possession of the plaintiff in error.

The case was first tried in November term, 1857, upon issues of general denial of the plaintiff’s claim, and the Statutes of Limitations of seven gears and ten years, and a verdict was rendered for the defendant. The plaintiff moved for a new trial, which was granted, and to this the defendant excepted. At May term, 1858, a new trial was had, and a verdict was rendered for the plaintiff. The defendant moved for a new trial, which motion was overruled, and the defendant excepted.

The first error assigned is the action of the court in setting aside the first verdict; and it is insisted that that verdict was correct, and that the order granting the new trial should be reversed, and judgment be rendered on the verdict for the defendant.

In support of this position, it is contended that the deeds offered in evidence, on the part of the defendant, and excluded by the court, were admissible to show color of title in him; and that this, together with the evidence of possession by the defendant and those under whom he claimed, from the year 1843 to the time of institution of the suit in 1855, adversely to the plaintiff, clearly established the issue for the defendant under the Statute of Limitations ; and, therefore, that he is entitled to judgment on the first verdict.

But in insisting on the correctness of that verdict, it must be judged of by the evidence before the jury, and upon which it was founded, and it cannot be said that the court erred in setting it aside, because evidence was excluded, which should have been admitted, and which tended to sustain it. The position of the plaintiff in error in maintaining that it was correct, must be sustained by showing that it was so, upon the evidence upon which it was found by the jury, and not by reference to evidence which should have been admitted.

Let us consider, then, whether the evidence before the jury was sufficient to sustain it.

The defendant proved, by W. H. Tegarden, that one Lewis Endt went into possession of the premises, under purchase from one Hally, in the year 1843, and continued in possession until 1850, with the exception of a short interval; when he sold to the defendant, who went into possession in 1850, and remained in possession up to the time of the trial; that Endt and defendant together, had been in possession from 1843, with the exception of a short interval, and that plaintiff had never been in possession. He also proved, by W. A. Champlin, that the witness was probate clerk at the time that Hally sold to Endt, who brought the deed from Hally to him to be recorded, and that it was recorded; that Endt took possession under the deed, and remained in possession until he sold to defendant.

It is admitted, on the part of the defendant in error, that this evidence was sufficient to sustain the defence of the Statute of Limitations, but for the fact that it does not show a continued and uninterrupted possession by the defendant and those under whom he claims, for the period of seven years; and, on the contrary, that it shows that the possession was out of Endt for some interval of time before he conveyed to the defendant. At what time that interval took place does not appear; nor does it appear that Endt was, during that period, exercising ownership and control of the premises. The rule is well settled, that in order to render the defence of adverse possession available under the Statute of Limitations, it must be shown that the party relying on it, and those under whom he claims, have been continuously in possession, under claim of title, for the statutory period; or if not in the actual occupancy, that he or they exercised ownership and control over the premises during that time. Angelí on Lim. §§ 392, 413, 3d edit. It was incumbent on the defendant to show this, in order to make good his defence; and having failed to do so, as the evidence appears to be stated in the bill of exceptions, the new trial was properly granted. And it may be remarked, that the same reason would have rendered his defence insufficient, as the evidence is stated in the record, if the deeds offered in his behalf, to show color of title, had been admitted.

This brings us to the errors assigned with reference to the new trial. It is assigned for error that the court sustained a demurrer to the following amended plea, filed before the new trial: “ Now comes the said defendant and says, that he, and those under whom he claims title, held adverse possession of the premises sued for, under claim and color of title, for the space of seven years, from and after the 24th day of February, 1844, and before the commencement of this suit, and before the first day of March, 1854, and this he is ready to verify; wherefore he prays judgment,” &c.

This plea would not have been allowable under the rules of pleading at common law; but the action being brought under the Statute of 1850, in relation to pleadings, there appears to be no reason why the plea is not allowable under that act.

The demurrer, it is insisted, on the part of the defendant in error, was properly sustained; because, it is said, the same matters set up in the plea, were already pleaded in the second original plea filed, upon which the plaintiff had taken issue, and upon which the case was tried; and that, therefore, no injury was done to the defendant by sustaining the demurrer. But this appears to be an error of fact. The second plea, was simply that the action did not accrue to the plaintiff within seven years. But, in this plea, the matters of defence are stated affirmatively, — the adverse possession for seven years, under color of title. If the defence of the Statute of Limitations be allowable, in virtue of the Pleading Act, this is certainly the proper mode of setting it up, and the defendant is entitled to set up the necessary facts affirmatively which constitute the defence. The facts stated in the plea are material, to wit, the continued possession, under color of title, and for the time prescribed by the statute.

It will not do to say that the defendant might have proved the same facts stated in the plea, under his plea of general denial. If he had the right to set up the facts constituting his defence specially, as he might do under the statute, he was entitled to call upon the plaintiff to answer the facts specially stated, and to have the benefit of the answer, which might be such, in some respects, as to save him from proof. But the plea is clearly allowable under the statute; and, whether he obtains any advantage from it or not, he should not be deprived of the right to set up his defence in that mode, because he may be able to make the proof of the same defence under another and general plea.

We think, therefore, that the demurrer was improperly sustained; and, for that reason, that the judgment should be reversed, and the demurrer overruled, which is ordered, and that the cause be remanded for further proceedings.