49 Miss. 377 | Miss. | 1873
delivered the opinion of the court :
On the 8th day of December, 1869, Martha M. Hicks brought an action of ejectment in the circuit court of Warren county, against Magdaline Steigleman, to recover possession of a certain lot of land in the city of Vicksburg, •particularly set out and described in the declaration.
Upon an issue joined upon the plea of not guilty, the plaintiff read in evidence a deed made by Harmon Stidger to Elizabeth Borman, conveying said lot of land, with a covenant of general warranty of title, on the 13th day of .March, 1817, for valuable consideration. This deed was duly acknowledged and recorded.
The plaintiff then read, in evidence, a deed executed by said Elizabeth Borman and Frederick Borman, her husband, on the 6th day of October, 1847, conveying, for a valuable consideration, the said lot of land to the plaintiff, with covenant of general warranty of title. This deed was also duly acknowledged and recorded. Plaintiff also read in evidence two deeds of conveyance made to her by the tax collectors of Warren county — one executed to her by 0. Steele, on the 3d day of April, 1848, for the consideration of six dollars and twenty-five cents, and the other executed to her by ■Samuel W. Brown, on-the 21stday of February, 1848. These deeds were duly acknowledged and recorded.
Whereupon the defendant withdrew the case from the consideration of the jury by a demurrer to the evidence, which was sustained by the court, and judgment rendered for the defendant. The evidence was incorporated in a bill of exceptions, and the cause comes here upon writ of error. In deciding upon a demurrer to evidence, everything which a jury might reasonably infer from the evidence demurred .to, is to be considered as admitted.
Even in cases where the parties claim in virtue of their
If this be the effect of mere possession, much stronger must the claim of the plaintiff be, when her possession, as in the present case, was held under eolor of title by deeds of conveyance, for which she paid, as a consideration, the sum of $389.37. And it is not to be presumed that the plaintiff, after having paid the above amount of purchase money for the property in controversy, and taken conveyances for the same, would relinquish the possession of said real estate, with no intention of returning to the same. It is contrary to that principle of human action, which stimulates persons to guard and protect their own interest, and it is, therefore, not to be presumed, without any evidence to that effect, that the plaintiff abandoned the possession without the animus revertendi.
The plaintiff proved by parol testimony that she was in the actual and notorious possession of the property in dispute, claiming title thereto'from 1851 or 1852, to March 27, 1858. And one of the plaintiff’s witnesses stated that it was his impression that Frederick Steigleman, husband of the defendant, went into possession of said property in 1858, and stated that his family had occupied it notoriously from that time to the 9th day of December, 1872, and that he had heard Steigleman say that he had purchased it, and that it was his property.
To enable the defendant, who, so far as. the , evidence shows, relies upon her possession alone, to succeed in this
It is laid down in the books upon this subject, that where a demurrer to evidence is so negligently framed, that there is no certainty in the statement of the facts proved, the court, instead of giving judgment upon it, will award a venire de novo. 2 H. Blackstone, 209; Graham’s Practice, 269.
And inasmuch as there is some uncertainty in the statement of the facts in regard to the character of the defendant’s possession, we are disposed to reverse the judgment and remand the cause to the court below for a new trial, when a more thorough development of the facts can be had.
The judgment is reversed, the cause remanded, and a venire de novo awarded.
