58 Miss. 487 | Miss. | 1880
delivered the opinion of the court.
This was an action of ejectment brought by defendants in error against the plaintiff in error to recover a half-section of land. The defendants in error claimed under the will of
The will of Joseph Dean, Sr., was read in evidence. It was dated in 1854, and it devised to Hassell Dean the land on which he lived, and which was deeded to him in 1869 ; and it devised to Joseph E. Dean one-half of the “ home place ” at the death of the testator, and the other half at the death of Joseph E. Dean’s mother.
It was also in evidence that in 1868 or 1869 Joseph E. Dean applied to a grandson of Joseph Dean, Sr., for some cabins which he had built on a tract of land adjoining the place in controversy, and promised, if the grandson would let him have them, that he (Joseph E. Dean) would see Joseph Dean, Sr., and try to get for the grandson the land in controversy ; that Joseph E. Dean told the grandson that it was his impression that his father, Joseph Dean, Sr., intended the place in controversy for the grandson ; that application was accordingly made by Joseph E. Dean to Joseph Dean, Sr., to give the place to the grandson, and that Joseph Dean objected, and in the conversation Joseph E. Dean said to Joseph Dean that he (Joseph Dean, Sr.) had promised Joseph E. Dean that he could have the laud in controversy during the old man’s lifetime.
Joseph Dean, Sr., died in the spring of 1871, and Joseph E. Dean still continuing in possession and refusing to account
The jury found a verdict for the plaintiffs below for the land and for rent for eight years. A motion for a new trial was made and overruled, and exceptions taken, and a writ of error prosecuted by Joseph E. Dean.
The plaintiff in error complains (1) that the verdict is not supported by the evidence; (2) that the court erred both in giving charges asked for by plaintiffs below and in refusing a charge asked for by the defendant; and (3) in rejecting competent evidence.
The questions, both of law and fact, involved in this case have been elaborately and ably argued,'both at the bar and in briefs, by the counsel on both sides; and with the aid thus afforded, we will now proceed to examine the case and to state the conclusions at which we have arrived.
There is no positive and express testimony as to the exact nature of the possession of Joseph E. Dean at its commencement. The circumstances attending it, however, independent of the legal presumption that the possession was in subordination to the title, leave no doubt as to its true character. The son, Joseph E. Dean,- had just married, and the land was evidently bought for his use and occupation. The purchase was made near the end of the year, just in time to commence preparations for a crop, and the possession taken under the purchase, and immediately after it, was by Joseph E. Dean, and the father never had any beneficial use of it. Under these circumstances, it is highly improbable, if the father intended that the son should have a title to or interest in the land independent of his will and possession, that he would not either have taken the deed in the son’s name or made a direct conveyance of it himself. As the land was manifestly purchased on account of the son, it is impossible to suppose that in taking the deed the father’s attention was not sharply directed to the point as to how the title should be made; and he must, therefore, have deliberately concluded to keep the
The law in relation to the title and the adverse possession was very fully and clearty expressed to the jury by the charges given, and we see no objection to any of them so far as the}^ relate to these questions.
It is insisted, however, that the court erred in refusing the fourteenth charge asked by the defendant. This charge was property refused. Under all the facts proven, the jury were not warranted in inferring adverse possession from the hypothetical facts stated in the instruction, even if they believed they existed. But the charge was farther objectionable because it told the jury they were warranted in inferring adverse possession for the whole term from the facts stated in the charge, if they believed they were proven ; and yet the
It is insisted, further, that the court erred in rejecting as evidence a record from the Chancery Court, in which that court, ■on objections made to the accounts of Jos.eph E. Dean as executor of his father’s will, decided that he was not liable for the rents of the place in controversy. It is not insisted that this record is res adjudicata, but it is insisted that it should have been admitted as evidence of an adverse claim to the land made by the plaintiff in error. The answer to this view
The tenth charge given for the plaintiffs below, to the effect that if entitled to recover the land, they were also entitled to recover rents and mesne profits from the death of •Joseph Dean, a period of eight years, is erroneous. The defendant in ejectment is not bound, nor even allowed, to plead specially the Statute of Limitations. Under the Code he can only plead not guilt}7, under which he can make every defence 'he has either to the recovery of the land or mesne profits. It is contended by the plaintiff in error that the period of limitation as to the rents is throe years, as that is the time in which actions upon accounts are haired by the Code. We do not agree with ■this position. An action of assumpsit for use and occupation, where the land is held adversely, is not maintainable in this •State. See Scales v. Anderson, 4 Cushm. 94.
The proper remedy in such a case is an action of trespass for mesne profits. A declaration in ejectment where mesne profits are claimed must be considered as embracing both ejectment for the land and trespass for mesne profits, and this latter action is barred only in six years. The jury, under the tenth charge, allowed rent for eight years, which, as we have seen, was wrong. But the charge complained of instructed the allowance of mesne profits to the commencement of the suit, when by law the plaintiffs were entitled to recover up to the time of the trial. A year intervened between the commencement of the suit and the trial, whereby the plaintiffs were entitled to recover in all for seven years. The jury allowed eight, but they allowed for two years which were barred, and under the charge failed to allow for one which the plaintiffs were clearly entitled to. The proof shows that the rent for each one of the years up to the trial was of the same value, and the jury, for ihe time they allowed rent, assessed it for each year at the same