47 Iowa 345 | Iowa | 1877
The evidence was certainly admissible. It was an element in the plaintiff’s proof. The fact that standing by itself it was not sufficient to show title would not have justified its rejection. If no other evidence of title was offered, the defendant should have asked an instruction that the plaintiff’s title was not proven, but no such instruction was asked. It is true in the instructions given the court assumed that the title was
As the case must be remanded for another trial for reasons hereinafter set forth, it is proper that we should say that a person in possession of real property may, as against a stranger to the title, recover without title for an injury done to his possessory interest. The owner of real property, although not in possession, may recover for an injury done to his reversionary interest. Where a person unites in himself both title and possession, he may recover for the whole injury done. In making proof of title in an action of trespass to the realty, when the title is put in issue, if the plaintiff puts in evidence the deed only of his immediate grantor, and the graiitor is not the United States, he should at least show that he is in possession under such deed. The deed alone would be insufficient.
It will be observed that the court did not say that the plaintiff would be entitled to recover upon proof merely of the defendant’s negligence. It said that proof should be made of defendant’s negligence, which is of course' correct. Had the defendant asked an instruction that plaintiff should also prove that he was free from negligence, the instruction could not have properly been refused. It is insisted by the plaintiff that no such instruction having been asked, and the instruction given being correct as far as it went, it is not subject to the plaintiff’s objection. The instruction, however, carried an implication that the plaintiff would be entitled to recover upon proving the defendant’s negligence. It would, we think, ordinarily be so understood by a jury. In giving the instruction, therefore, as to the defendant’s negligence as a ground of recovery without adding the other necessary element, the absence of contributory negligence on the part of the plaintiff,
IY. It is insisted by the defendant that the verdict is contrary to the evidence. No error is assigned upon this point, and no question with reference to it, therefore, is before us.
Reversed.