47 Ark. 215 | Ark. | 1886
H. B. and T. C. Dawson sued John Parham and Anna W. Parham, in 'the St. Francis circuit court, for a-tract of land. They aver, in their complaint, that they are the owners of and entitled to the possession of the land and that defendants hold possession thereof without right, which defendants deny.
The issues of fact ¿rising in the action were, by consent of both parties, tried by the court.
To prove title, plaintiffs introduced as evidence in the trial a. certificate of purchase executed by a land agent of the State of Arkansas on the third day of December, 1853, certifying that G. V. C. Johnson was the purchaser of the land in controversy, and also introduced J. H. Dawson, as a witness, who testified: G. V. C. Johnson sold the land in controversy and other lands to John Dawson and J. H. Pool and executed to them a bond for title. G. V. C. Johnson died and- John C. Johnson was appointed his administrator. John Dawson and. Pool paid the purchase money, and the administrator, of G. V. C. Johnson, under an order of a court, conveyed the lands to them by deed. He, witness, did not see the order of the court, or remember what court made it, but some one told him the order had been made. John Dawson and Pool divided the lands conveyed to them between themselves, and he purchased Pool’s part. The land in controversy was set apart to John Dawson in the division. When he purchased from Pool, Pool handed him the deed executed by Johnson’s administrator, and he -gave it to the clerk to record and paid him for recording. He did not see it recorded, and cannot say that it was. He thinks the clerk afterwards returned it to him and that he sent it to his brother in Tennessee, but that he is not certain that he saw it again after he filed it with the clerk, or when, if fie did. He does not know what became of the deed. He has searched for it and cannot find it. The records in the clerk’s office have been destroyed since the deed was filed. John Dawson died at his home in Maury county, Tennessee, in 1875 or 1876, leaving J. A. Dawson, H. A. Dawson, N. G. Frierson, T. D. Barrow, E. G. Long, C. A. Kittrell, M. Dawson, M. P. Dobbins and Jacob H. Dobson, his only surviving heirs.
Plaintiffs also introduced as evidence the deeds of the heirs of John Dawson, deceased, conveying the land in controversy to them.
The court found, in effect, that plaintiffs had failed to prove that they were the owners of and entitled to the possession of the land sued for, and rendered judgment in favor of defendants; and plaintiffs appealed.
As a general rule plaintiffs in actions of ejectment, or other real actions, can recover only upon the strength of their own titles and not upon the weakness of their adversary’s. For possession is always prima facie evidence of title, and a party cannot be deprived of his possession by any person but the rightful owner, who has the jus possessions. The defendant, therefore, • needs not show any title in himself, until the plaintiff has shown some'right to disturb his possession. Until the plaintiff “shows a paramount title, '.the defendant is entitled to a verdict, and this without producing the evidence on which his right is based.” 2 Greenleaf on Evidence, sec. 331.
Prior to the time when defendants took possession of the land in controversy, the evidence does not show that any one, at any time, had actual possession. It was, therefore, incumbent on plaintiffs to prove that they had the legal title and were thereby entitled to the possession. To do this they attempt to prove the existence of a deed executed by Johnson’s administrator to Dawson and Pool in pursuance of a contract made by his intestate, and that the same had been lost or destroyed.
In order to show that a valid deed was executed by Johnson’s administrator it was necessary for plaintiffs to prove that the same was executed in pursuance of an order or decree of a court of competent jurisdiction. Any deed made by Johnson’s administrator without such an order or decree was a nullity and conveyed nothing.
There was no competent evidence of an order or decree of any court authorizing Johnson’s administrator to convey the land to Dawson and Pool. The witness, Dawson, had never seen any such order or decree, but had been told that there was one. The deed being a nullity, if any was ever executed, could npt be evidence of its recitals, if it contained any; and there was no evidence that it contained any. Mansfield's Digest, sec. 668.
There was no evidence introduced in the trial to prove that any action was ever instituted by any one to compel Johnson’s administrator to convey the land in controversy. There was no competent evidence, even, to show the contents of the bond for title mentioned by the witness, that there was any search made for it, or that it was lost or destroyed.
Then, again, the court sitting-as a jury was the judge of the credibility of the witness, Dawson, and it is manifest from its findings, for reasons unnecessary to mention, did not believe his testimony.
We find no error prejudicial to plaintiffs in the judgment of the court below, and it is affirmed.