Graham v. Busby

34 Miss. 272 | Miss. | 1857

Smith, C. J.,

delivered the opinion of the court.

This was a proceeding, under the statute, for an unlawful de-tainer. The exceptions taken to the judgment are: 1. That the oath prescribed by law was not administered to the jury em-panelled to try the issue. 2. That evidence, offered in behalf of the plaintiff, was improperly excluded. 3. That the verdict was informal and insufficient; and 4. That the verdict was contrary to the evidence.

The statute, in such cases, directs that the trial' shall be had “ without pleadings in writing,” but has prescribed, as a substitute for a formal issue in writing, the precise form of the oath.

It has been uniformly held by this court, that it must appear affirmatively in the record, that the jury was sworn, and generally it is sufficient, if the record shows that they were sworn, without stating the terms of the oath administered. In cases of this character, although the terms of the oath are expressly given in the statute, we apprehend that a recital that the oath required by statute was administered, or that the jury was sworn according to law, would be sufficient. In this case, the terms of the oath are set out, and do not conform to the directions of the statute. For this error the judgment must be reversed, and the cause remanded for a new trial.

In view of a future trial, it is necessary to notice the second exception.

The defendant was in possession of the premises as the tenant of Harman, who was entitled to occupy the buildings for the year 1852, if at all, in virtue of his contract with Campbell, who assumed to act as the agent of the plaintiff. Harman and Campbell were both dead when the trial was had. The statements of the former, in regard to his contract with the latter, were, hence, clearly com-, petent evidence for the plaintiff.

If Harman’s contract did not embrace the buildings, and the pieces of cultivated land immediately surrounding them, the defendant, who held under him, could not justify his possession. His possession in law was the possession of Harman.' They were, in the strictest sense of the term, privies in estate. The ground on which the admissions bind those in privity with the party making them is, that they are identified in interest. Where a party, by his own admissions, has qualified his own right, and another claims under him as heir, or lessee, or the like, he succeeds only to the right, as thus qualified, at the time when his title commenced. In such case, the admissions are competent evidence' against the heir or lessee, in the same manner that they would have been against the ancestor or lessor. 1 G-reenl. Ev. sec. 189.

For this reason, any statement or admission made by Harman, showing that the buildings were not included in the contract with Campbell, wére competent evidence against the defendant. The depositions of Swaim and Bramlet were, therefore, improperly ruled out.

It is unnecessary to state what effect, in our opinion, the introduction of the depositions might have had upon the jury, or to intimate an opinion as to the relative weight of the evidence introduced by the respective parties, as we reverse the judgment for the exception first noticed.