Kerr v. Farish

52 Miss. 101 | Miss. | 1876

Chalmers, J.,

delivered the opinion of the court:

Mrs. Kerr, widow of James Kerr, brought ejectment against Farish to recover possession of lot 1, sec. 28, t. 5, r. 1 east, eighty acres in Rankin county. She claimed title under her husband, who held a patent from the state of Mississippi. She successfully derained her title from the United States government down to one Sidney Lacoste, by whom she claimed that the land had been conveyed to the state of Mississippi in payment of a debt due by him to the sinking fund previous to 1851. No deed from Lacoste to the state could be produced, but she alleged that one had been lost without having been recorded.

Whether such deed was ever made is one of the main points at issue between the parties, and the action of the- court in rejecting the testimony by which she sought to establish it constitutes the principal error assigned. It being conceded that Sidney Lacoste once had a perfect title, and that the state of Mississippi thereafter conveyed the land to plaintiff’s husband by letters patent, which recited that said land belonged to the sinking fund, it was incumbent upon plaintiff to show that Lacoste had conveyed it to the state for the benefit of said fund. Unable to produce the deed, which she alleged had been lost, plaintiff offered in evidence the official list of lands belonging to the commissioner of the sinking fund of ■ the> state, which list was, by M. L. Holland, the state treasurer and official custodian of said list, and by J. D. Freeman, ex-attorney general, identified as being the official list of said lands. Upon this list was entered in a handwriting identified as that of Samuel Matthews, former commissioner of the sinking-fund, the land in controversy, together with much other land, all of which was marked on the list “ acquired from Lacoste.” Opposite tlie laud in controversy was a pencil memorandum, sold to Kerr.”

The "evidence was offered in connection with, proof proposed to be made of acts of ownership by the state. It was by the court excluded. She then offered in evidence the official report of Robert Josselyn, the successor of Matthews as commissioner of the sinking fund, made to the legislature of the state in 1852, in which he reports that he has sold this land, with others, to James Kerr, partly for cash and partly on credit.

This evidence was offered to show the claim and exercise of acts of ownership over the land by the state, and in connection with the recitals of the patent issued to Kerr in 1865, setting forth that the land had been theretofore purchased from Jos-selyn, commissioner, by Kerr, and that said patent was then issued by virtue of said sale, and of the payment then made •of the balance of the purchase money in full. This evidence, also, was excluded. Was this action of the court below correct? It. is supported by counsel for appellee, and was doubtless rested by the court upon the ground that the introduction of the testimony was an attempt to prove title in the state by its own acts alone, and was equivalent to establishing the doctrine that the officers of the state could vest title in her by such.acts.

We do not understand the evidence to have been offered for any such purpose. The plaintiff had given notice in her written bill of particulars of her title, filed in obedience to the demand of defendant, that one of her muniments of title was a lost •deed from Sidney Lacoste to the state, which lost deed she proposed to establish by parol proof.

She did prove by the. witness Bell that he had seen a deed, •executed about the proper time, from Sidney Lacoste to Jos-selyn, the commissioner of the sinking fund, conveying various lands in Rankin county. - But Bell thought that the land in controversy was not therein embraced. This deed, Bell says, was never recorded.

For the purpose of showing that said lands were in fact embraced therein, the foregoing testimony was offered. The documents adduced do not stand upon the footing of private writings. They are what Mr. Greeuleaf styles “ official registers, or books kept by persons in public office, in which they are required, whether by statute or by the nature, of their office, to write down particular transactions occurring in the course of their public duties and under their personal observation. *. * * * The extraordinary degree of confidence,, 'it has been remarked, which is imposed in them, is founded principally upon the circumstance that they have been made by authorized and accredited agents, appointed for the purpose, but partly, also, on the publicity of their subject-matter. Where the particular facts are inquired into and recorded for the benefit of the public, those who are empowered to act in making such investigations and memorials are in fact the agents of all the individuals who compose the state, and every member of the community may be.supposed to’be-privy to the investigation. On the ground, therefore, of the credit due to agents'so empowered, and of the public nature of the facts themselves, such documents are entitled to an extraordinary degree of confidence.” (Greenl. Ev. § 483, et seq.) . '

We think,'therefore, that the' testimony should have ■ been admitted,' and the jury left to decide whether it was sufficient to overcome the testimony of Bell that the land in controversy was not embraced in the deed. . ?

It would be a question of memory and not of credibility. The jury at the same time should be cautioned that no mere intention on -the part of Lacoste to convey this particular piece of land was sufficient, nor any impression,- however strong, Which both he and the state officials -may have entertained that it had been conveyed, nor any written memorandum to that effect made by the' officers of the state-. If the laud was omitted by mistake, the remedy is in another forum and by a different proceeding.

The next error assigned is the granting of charges in behalf of the defendant, and the refusal of three of those asked by the plaintiff.

These charges, though some of them are not aptly drawn, raise the question as to whether plaintiff was entitled to-recover upon proof of previous possession in herself and husband for ten years, without deraining title, in the absence-of any show of title in defendant.

It is now well settled, both in this state and elsewhere, that,, as against a mere intruder without color of title, a plaintiff in ejectment may recover upon the strength of his former possession, without being put to deduce his own title, unless said intruder has held possession for a period sufficiently long to bar the right of entry, and provided, further, that the plaintiff' has not theretofore' abandoned his' possession sine animo revertendi.

In every such case it would perhaps be a mixed question of' law and fact as to whether the defendant was an intruder without color of title; nor do we express any opinion as to what effect his failure to furnish a bill of particulars of his-claim of title, when called upon, as occurred in this case,, would have upon such an issue. Hicks v. Steigleman, 49 Miss., 377 ; Clute v. Varis, 31 Barb., 511; Jackson v. Hazen, 3 Johns., 22; Jackson v. Harden, 4 Johns., 202; Smith v. Lovellaud, 10 Johns., 338.

The action of the court, not being in accordance with these-views, was erroneous.-

Judgment reversed and cause remanded.