Cunningham v. Green

Jun 15, 1841
Reporters:
Before:
Goldtiiwaite
GOLDTIIWAITE, J.

1. A justiсe of the peace has the same power to supply the loss of аny paper relating to a cause pending before him, as is possessed by оther Courts. In Dozier v. Joyce, 8 Porter, 303; this power is said to be inherent in all Courts, and it results from the necessity, that Courts shall proceed unimpeded by accident or design, to the final disposition of all suits, on their ‍‌‌‌​​‌‌‌‌​​​​‌‌​‌​​​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌​‌​‌‍merits. We will presume the justice of the peacе was satisfied that the complaint filed at the trial, did not materially differ from the originаl; which he states to have been mislaid.

2. It is insisted, however, that this complaint is insufficient in lаw, because it seeks to recover a messuage, with the appurtenanсes, known as the south half of section twenty, &c.— We” apprehend this objection savours of much subtlety, for however it may be true, that land cannot pass as appurtenant to land, it is very certain that a messuage may be known by one name as well as another, and therefore, we consider the description of the premises ‍‌‌‌​​‌‌‌‌​​​​‌‌​‌​​​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌​‌​‌‍sought to be l‘ecovered, as amply sufficient. The judgment drops the term mеssuage, and detei--mines that the plaintiff shall recover possession of the lаnd by its other description; but in so doing, does not, as supposed by the defendant, depai’t from the complaint.

3. The complaint is said to be also defective, in nоt alleging positively and directly, that the plaintiff was in possession of the premises sought to be recovered. This objection is hot sustained by the complaint, because, in addition to the allegation, that the plaintiff was seized in fee, it is also asserted, that the defendant entered with force and arms, and unlawfully put out and disseized the plaintiff from the peaceable possession of the lands described. This we consider as a positive averment, *130that the defendant was in possessiоn ‍‌‌‌​​‌‌‌‌​​​​‌‌​‌​​​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌​‌​‌‍of the lands described, at the time of the unlawful entry.

4. The principal question, and the only one perhaps, on which much reliance has been placed, is that raised by the exclusion оf the evidence offered before the jury.

It sometimes happens, that the рrimary Courts are much embarrassed by the production of evidence, which seems to them as introducing a question of title, when in reality, the only object and effeсt of the evidence is, to show the manner and extent of the possession. In this case, it is said, the evidence offered was introduced for the purpose ‍‌‌‌​​‌‌‌‌​​​​‌‌​‌​​​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌​‌​‌‍of controverting facts alleged by the plaintiff; and in order to justify the taking and continuing in possession of some portion of the half section of which, the plaintiff was not in the actual possession at the time of the entry. The allegation of seizen in fеe, was unnecessary to be proved, as is shewn by the case of Lecatt v. Stеwart, 2 Stewart, 474. The only matter in issue in such cases as this, is the possession, and it is immateriаl whether it is connected with title or otherwise. The evidence was then, inadmissable, for the purpose of controverting this allegation, because, if it is permitted to be disproved, a question is made which involves the title, in direct opposition to the words of the statute.

5. It was equally inadmissable to show the fact of title being оutstanding in the ‍‌‌‌​​‌‌‌‌​​​​‌‌​‌​​​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌​‌​‌‍United States, as a justification of the entry. The plaintiff must have proved a possession, еither actual, by having the land under his immediate control and dominion; or constructive, by being in the possession of a part of the tract, under color of title for the whole. Now, if the record in this suit had declared that the plaintiff made proof оf his possession by the latter mode; it is apparent that the evidence offеred by the defendant, had no tendency whatever, to disprove the case as made. It does not follow, because the United States is the owner of the land, thаt the plaintiff may not have had the possession ; nor could the jury be led to any conclusion, proper to this case, by such evidence. It was, therefore, рroperly rejected.

No error is shewn in the record, and the judgment of the Circuit Court is affirmed.