Metcalfe v. McCutchen, 60 Miss. 145

Metcalfe v. McCutchen

60 Miss. 145 | Miss. | 1882

Cooper, J.,

delivered the opinion of the court.

The appellant (plaintiff in the court below), is the owner of the west half of sect. 31, T. 19, R. 6 west, in Washington County, and the appellee (defendant below) is the owner of the east half of said section.

On or near a line running north and south, and dividing the section, but not extending through the entire section, a fence has stood for the past thirty years. To the extent of this fence the land on the defendant’s side has been inclosed and cultivated for more than ten years prior to the institution of this suit by the defendant and those under whom he claims. The land east of a line drawn on a prolongation of the line of this fence is not arable, but during the time aforesaid, the defendant, and those under whom he claims, have exercised such acts of ownership as the character of the land admitted.

*152The character of the possession as to all the land is shown bj the evidence of the defendant, who testified that he, and those under whom he claims, have been in the possession of the locus in quo, claiming it as owners ; but that this claim has been made because he and those under whom he claims honestly believed that it was situated in the east half of the section. That neither he nor they ever claimed to be the owners of any part of the west half of the section, and if the locus in quo is in fact a part of the west half of the section, the claim thereto had been made under a mistake of fact; that he only claimed to own the east half of the section, but, nevertheless, claimed that the land sued for was in said east half.

The case was twice tried in the court below. The declaration, as originally filed, described the land as being in range six west, instead of range seven west, as in truth it is. This mistake was not discovered until after the jury had rendered a verdict in favor of the plaintiff, when, and before the entry of the judgment, the plaintiff asked leave to amend the declaration by striking out the figure slx and inserting seven after the word range. This the court refused to permit to be done, but entered up a judgment on the verdict, and upon a motion by the defendants for a new trial, granted the same and then allowed the amendment to be made in the declaration. The plaintiff took a bill of exceptions to the action of the court in refusing permission to make the amendment when asked, and in granting a new trial to the defendant. A second trial resulted in a verdict and judgment for the defendant.

On the first trial the court instructed the jury in substance, that if the defendant had been in possession of the locus in quo for the period of time necessary to complete his title by limitation, claiming title thereto, but that such possession was held and title claimed because the defendant believed that the land was within the calls of his deed, and never intended to claim title to any land lying within the calls of the plaintiff’s deed, then such possession and claim of ownership did *153not constitute adverse possession, if in fact the laud was within the calls of the plaintiff’s deed and without those of the defendants’.

The defendants asked instructions announcing the converse proposition, which were refused.

On the second trial the court gave the instructions of the defendants and refused those of the plaintiff.

On each trial there were a'number of instructions asked both by plaintiff and defendants, but the real controversy turned upon the question whether such possession, as is supposed by the instruction as stated above, was or was not adverse.

The court should have permitted the amendment of the declaration, though the verdict had been reudered when the application to amend was madé.' ,

Though amendments at so late a stage of .the proceedings ought only to be allowed in cases in which it is free from all doubt that injury can be done to the opposite party, it is still within the power of the court, in such cases, to permit them, and where, as here, it appears that the parties have tried the cause upon the supposition that the pleadings were in fact such as they would be made by the amendment, the party in whose pleadings the error existed, ought to be permitted, even after verdict, to amend them so as to conform to the facts. Both the plaintiff and defendant had shaped their testimony to support their respective rights or claims to the land situated in range seven, where it reall-y was, and by no possibility could the defendant be deprived of any fair legal advantage by an amendment of the declaration so that it would show the proper location of the land. ,

-It is argued by counsel for the appellee, that sect. 1581, Code 1880, deals wholly with amendments made “ before verdict,” that the right given by that section to except to the decision of the court allowing or refusing amendments, applies only to such amendments as are spoken of in the section, viz., *154amendments made before verdict; and that as to all others the common law prevails, and the refusal to permit them is not subject to review on appeal. This is restricting too much the the operations of the statute. Its effect is to make reviewable, on appeal, the action of the court in permitting or refusing any amendments whatever.

The court erred in not permitting the amendment to be made ; but if the instructions asked by the plaintiff on that trial did not correctly announce the law, the defendants were entitled to a new trial. Upon the question whether or not such possession as the defendants are shown to have had in this case, is adverse, the authorities are conflicting, and we are left to select that view which, upon examination, commends itself to our judgment. The decisions on both sides of the question are collected in the briefs of counsel; we shall not attempt an examination of them in this opinion, but content ourselves with saying that we adopt the views of those courts which hold that that possession is adverse in which the holder claims, and intends to claim title, without regard to the fact that the possession and claim is held and made under an honest, but mistaken, belief that the land is within the calls of his deed. It is the fact that possession is held, and that title is claimed, which makes it adverse possession, or claim, or both, though they may have resulted from a mistake ; but it is their existence and not their cause that the law considers, and existing, they constitute adverse possession.

This view is ably sustained by Hosmer, C. J., in the case of French v. Pearce, 8 Conn. 439.

The judgment is affirmed.