Colvin v. Republican Valley Land Ass'n & the Lincoln Land Co.

| Neb. | Jan 15, 1888

Reese, Ch, J.

This was an action in ejectment-, instituted by defendants •in error against plaintiff in error for the possession of the south-east quarter of the south-west quarter of section 15, township 4, range 23 west, in Furnas county.

The petition is in the usual form.

Plaintiff in error filed his answer, consisting of three ■counts:

First, A general denial of the allegations of the petition;

Second, That the plaintiffs’ alleged cause of action did not accrue within ten years next before the commencement of the suit; and

Third, That on September 30th, 1873, plaintiff in error entered into possession of the premises in dispute, as owner thereof, and has continued in open, notorious, adverse, and exclusive possession .thereof ever since, and has cultivated and improved the same.

There was a jury trial, which resulted in a verdict in favor of défendant in error.

Plaintiff in error brings the cause to this court by petition in error, and assigns for error:

First, The court erred in admitting in evidence certain deeds, introduced by defendants in error, showing their claim of title;

Second, The court erred in giving certain instructions to the jury;

Third, The court erred in refusing to give certain instructions asked by plaintiff in error;

Fourth, Errors of law occurring upon the trial; and

Fifth, That the verdict is not sustained by sufficient evidence.

At the commencement of the trial the following stipulation was entered into by the parties to the suit:

■ “ It is hereby stipulated and agreed by and between the parties hereto that certified copies of certain instruments may be offered in evidence without proof of the loss of the originals, subject only to the objections that the originals would be subject to, the plaintiffs admitting that they contained'all that the originals contained.”

The property in dispute was conveyed by plaintiff in error, to one D, N. Smith, on the 30,th day of September, 1873. Smith conveyed it to the Republican Valley Land Association, the deed bearing date March 28, 1874. The Republican Valley Land Association, on the'29th day of December, 1879, conveyed an undivided half interest in the property to A. E. Touzalin, trustee. On the 5th of May, 1880, Touzalin conveyed the undivided half interest to the Lincoln Land Company,

The principal objection to the introduction of the copies ■of the deeds is made to that of the Republican Valley Land Association, to Touzalin. The ground of this objection is, that the certified copy of the record does not •show that the conveyance was under the seal of the corporation making the conveyance. This deed is executed by J. S. Schramm, president of the Republican Valley Land Association, and recites that it is made under the seal of said association, but there is nothing on the certified ,copy, in the form of a scroll or otherwise, to indicate that the seal of the association was actually affixed to the deed, in accordance with the recital therein contained.

In Griffin v. Sheffield, 38 Miss., 359" court="Miss." date_filed="1860-04-15" href="https://app.midpage.ai/document/griffin-v-sheffield-8257573?utm_source=webapp" opinion_id="8257573">38 Miss., 359, a question somewhat similar to the one presented in the case at bar arose, upon a certified copy of a deed being introduced in evidence, which did not contain any proof, by a scroll or otherwise, that the officer before whom the acknowledgment was taken actually affixed his seal to the certificate of acknowledgment. It was there held that the deed was admissible in 'evidence, and that it was not necessary that a certified copy of the recorded deed should show that the impression of the official seal of the officer who took the acknowledgment was affixed thereto, if it be stated in the body of the certificate of acknowledgment' that it was certified under such official seal.

A similar question arose in Geary v. City of Kansas, 61 Mo., 378" court="Mo." date_filed="1875-10-15" href="https://app.midpage.ai/document/geary-v-city-of-kansas-8005176?utm_source=webapp" opinion_id="8005176">61 Mo., 378, and it was there held that a statement in the body of the certificate, that the officer who made it affixed his seal of office, raised the presumption that such was the fact, and that it was not necessary that the record copy should contain a copy of the seal, nor any indications thereof by scroll.

In Smith v. Dall, 13 California, 510, a question quite similar to the one in this case was presented. The deed was under seal, and recorded on the day of its execution, but on the books of the record there was no copy of the seal or mark indicating that there was a seal to the instruí ment. It was held that it was not necessary that the seal should be copied upon the record, but that it was enough if it appeared from the record that the deed copied was under seal.

The question, then, d,oes not arise as to’whether the deed from the Lincoln Land Association to Touzalin was under seal or not, or whether the seal of the corporation was thereto affixed; but whether it was necessary that the certified copy of the record should show that fact in order to its admissibility. Under the authorities cited, we think it was not necessary, and there was no error in admitting the copy of the deed in evidence.

The facts in this case, as shown by the record, may be briefly stated to be, that in the year 1873 plaintiff in error conveyed the land in question to D. N. Smith. At that time it was unfenced, but somewhat improved and a crop standing thereon. Plaintiff in error was in possession. The crop was reserved from the sale. By the testimony of plaintiff in error it appears that at the time he conveyed the land to Smith there was some talk about plaintiff in error remaining in possession, but just what that conversation was is not clear, plaintiff’s memory being somewhat defective, and Smith being dead. It was known by plaintiff in error that Smith was not purchasing the land for farming purposes, and nothing was said as to when Smith would require the possession; at least no definite time was fixed. Plaintiff in error remained in possession until the commencement of this suit, Smith not objecting so long as the title remained in him. The taxes have all been paid by Smith, or his grantees, plaintiff in error having paid nothing since his conveyance. I think it may be said to appear, reasonably clear, from the record, that plaintiff in error retained the possession, by Smith’s consent, without any purpose of asserting ownership, or claiming to own it, until after the year 1881.

On his cross-examination his attention is called to the verification of a petition in a case named, which occurred in the year 1881 or 1882. He was asked if at that time he had made up his mind to claim or keep the land? His answer was, “ I don’t know that I had positively.” After that time his attention appears to have been called to the fact that some decision upon the question of adverse possession had been made by this court, when he seems to-have decided to assert his ownership, but no notice of any claim or right to the land, or that his possession was other or different from that retained by the consent of Smith, was ever given to defendants in error. So far as appears from the record, his possession was with the consent of defendants in error, or their grantors, without any intention upon his part to assert ownership.

The real question presented in the case is, was such possession a sufficient bar to the present action? We think clearly not. The possession must not only have been actual, open, and continuous, but it must have been accompanied by an intention on his part to hold the land as the owner of it. It must have been under a claim of ownership. No matter how exclusive and hostile to the real owner, in appearance, it cannot be effectually adverse, unless accompanied by the intent, on the part of the plaintiff in error, to make it so. A naked possession, unaccompanied with any claim of right, will never constitute a bar, but will inure to the advantage of the real owner. As was said in Ewing v. Burnet, 11 Pet., 41" court="SCOTUS" date_filed="1837-02-18" href="https://app.midpage.ai/document/lessee-of-ewing-v-burnet-86008?utm_source=webapp" opinion_id="86008">11 Peters, 41: “It is the intention which affects the character of the entry and possession.” And as was said in McCracken v. City of San Francisco, 16 California, 635, “The statute of limitation runs only in favor of parties in possession claiming title adverse to the whole world.” There can be no doubt but that, after-the conveyance to Smith, plaintiff in error retained possession, with the understanding upon his part that such possession was entirely agreeable to Smith; and while he says in his testimony that it was his purpose to hold it as long-as he could, yet we find nothing which would show a purpose to hold as owner and against Smith’s title; the statute-of limitations, therefore, did not run in his favor, and it must be presumed that his possession was in accordance with, or subservient to, the title conveyed to Smith. Jackson v. Parker, 3 Johnson’s Cases, 124. Thompson v. Pioche, 44 California, 508. Campau v. Lafferty, 15 N. W. Reporter (Mich.), 40. Greenhill v. Biggs, 2 S. W. Reporter (Ky.), 774.

It is contended that the court erred in giving instructions-to the jury upon it's own motion and upon the request of defendants in error, and in refusing to give instructions-asked by plaintiff in error. These instructions áre quite-lengthy, and it is not deemed necessary to copy them here.. It must be sufficient to say that the views taken by the-trial court, as expressed in the instructions given and those-refused, correspond with those here expressed, and there was no error.

Upon the trial it was sought to prove by plaintiff in error, upon the witness.stand, that he had not received, the' consideration for which he conveyed the land; but .this-testimony, upon objection, was excluded, and we- think rightly, for the reason that there was nothing in the issues-presented which would warrant any such proof. The-simple questions presented were the title of the- defendant in error and the plea of the statute of limitations;. No equities -were presented by the answer, and therefore none could be proven. The judgment is therefore," affirmed.

Judgment aeeibmed..

Maxwell, J., concurs. Cobb, J., took no part in the decision.