| Miss. | Feb 28, 1881
Opinion.
On the 29th of January, 1880, Tanner instituted this suit against Pinch, before a justice of the peace, to recover damages for cutting timber on a tract of land situated in Jackson county. Judgment was rendered in his favor, and on appeal to the Circuit Court he again obtained a verdict and judgment. On the trial in the Circuit Court the plaintiff proved the cutting of the timber by the defendant and its value, and to establish his right to recover proved that- the locus in quo was sold by the tax-collector of the county of Jackson on the 7th day of August, 1871, at which sale he became the purchaser; that a deed was executed and lodged with the clerk of the Chancery Court of the county, where it remained for more than two years, and until it was destroyed by fire, and that the land had never been redeemed from said tax sale by anyone. The defendant then introduced in evidence a certificate of entry or purchase for the locus in quo issued on the 20th of December, 1870, to one Isaiah Powell by the commissioner of swamp and overflowed lands, and a deed from Powell to Daniel O’Geoyn, dated January 18, 1877, but which was not acknowledged by the grantor until November 20, 1880; also a deed from O’Geoyn to himself, dated December 31, 1879. The lands were never actually occupied by either Tanner, O’Geoyn or Pinch, but each of them had cut timber therefrom. Among other instructions given for the plaintiff on the trial in the Circuit Court were the two following, the giving of which is assigned as error:
“The defendant’s title rests upon the validity of O’Geoyn’s title, and if the jury believe from the evidence that O’Geoyn’s title was never acknowledged until after the trees were cut and*213 after tbe suit was brought, it forms no defense to this suit, unless defendant has shown that plaintiff had express notice of the deed from Powell to O’Geoyn and from O’Geoyn to Finch.”
“That if the jury believe from the evidence that plaintiff either had the legal title to the land, or that he paid taxes thereon since the year 1876, and was in possession of the land, and that defendant entered upon and cut 270 pine logs off of the land and converted them to his own use, he is liable for the value of the trees; and if the jury so believe they will find for the plaintiff such damages as they believe from the evidence he has sustained by such cutting.”
These instructions ought not to have been given. The acknowledgment of a deed is not part of a deed or necessary to give efficacy to it. The office of an acknowledgment is to entitle the deed to registration and to prove its execution. The deed from Powell to O’Geoyn, when signed, sealed and delivered, transmitted to O’Geoyn the title of Powell as against every one, except creditors and subsequent purchasers for value without notice of the conveyance. Tanner was neither, and notice or want of notice to him could neither aid nor impair the title of. Finch derived from Powell. The question is not whether Tanner or Finch got the title of Powell (for there is nothing in the record to show that Tanner claims Powell’s title), but whether Powell’s title or Tanner’s is superior. The second instruction quoted above withdraws from the jury all considerations of the title of Finch, and instructs them to find for the plaintiff if they believe from the evidence he had paid taxes on the land since 1876, and was in possession thereof, and that Finch cut the timber. If Finch had the title he is not liable in damages to one* merely holding to possession. Possession under claim of title is sufficient to enable one to recover damages against one who has not title; but when the titles of both plaintiff and defendant are in evidence the jury ought to find-which is the better, and only in event of neither being good ought they to find for the party in.possession because of such possession. In addition to the errors above noticed, it appears by the record— though the point is not made by counsel — that the tax sale, under which plaintiff claimed, was made on the 7th day of August, 1871, and was, therefore, void, that day not being the day fixed by law for the sale of land for taxes. McGehee v. Martin, 55 Miss. 519.
Judgment, reversed.