Alexander v. Eastland , 37 Miss. 554 ( 1859 )

Harris, J.,

delivered the opinion of the court.

The plaintiff in error commenced his action of trespass against the defendant in the court below, to recover damages for entering upon his lands, and cutting timber thereon. The defendants filed the general issue, and four special pleas; on all of which, except the second special plea, issue was joined. To the second special plea the plaintiff demurred, and his demurrer was overruled by the court, which is the first error assigned.

The plea alleges that the lands mentioned in plaintiff’s declaration, at the times when the trespasses complained of are alleged to have been committed, were in the actual adverse possession of one Meader, who claimed to be the owner thereof, and from whom defendants obtained leave and license to cut timber.

If this plea was designed simply to set up the fact, that the plaintiff was not in the possession of the premises at the time of the commission of the trespass, it would be bad as only amounting to the general issue. If it was designed as a plea of liberum tene-mentum, or license under the true owner, it would still be bad; first, because it denies plaintiff’s possession; and, second, because it does not aver that Meader, under whom defendant claims leave or license, had any title. So that, in any view, this demurrer should have been sustained.

. The only remaining assignment of errors relied on is, the rejection of the deed from Bishop to plaintiff. The objection to this deed, stated in the record as having been made in the court below, is that the “ acknowledgment was defective.” In what the defect consisted does not appear by this record. The “ acknowledgment,” as it appears in the record, seems to be regular, and signed by the clerk.

The objection presented in the brief of counsel for defendant in error, that the deed was inadmissible, without proof of its execution, inasmuch as the certificate that it was “ filed for record and recorded,” was not signed by the clerk, was not made in the court below, and cannot,-therefore, under the practice in this court, be regarded here.

For these errors, let the judgment be reversed, cause remanded, and a venire de novo.