37 Miss. 492 | Miss. | 1859
delivered the opinion of the court.
This action was brought by John Henderson to a of land from the possession of the plaintiff in error. Pending the suit, Henderson died, and the cause was revived in the name of the
Numerous errors are assigned and insisted upon, which we will proceed to consider.
The first, second, and fourth assignments of error proceed upon the ground, that after the death of John Henderson, the suit was revived at November term, 1857, in the name of the defendant in error, as executor of John Henderson, and at May term, 1859, that it was revived in his name, in his individual capacity, without any correction of the previous order of revivor, or any abatement of the suit so revived. Hence, it is insisted that the latter order was erroneous, and that, as the record stands, there are two distinct plaintiffs to the action, which renders the judgment void.
These objections appear to be not well founded in point of fact. The record shows that at November term, 1857, the cause was ordered to be revived in the name of St. John Elliott Henderson, as executor of John Henderson, and “ that scire facias should issue to that effect.” It does not appear that that writ was ever issued; and it is plain from the order, as it is entered of record, that the suit was not thereby revived, but that a scire facias was ordered tb be issued, in order that, after service of it, the suit should be revived as stated. For, if it had been actually revived by the order, there would have been no need for the scire facias, which was ordered in order to bring him in to be made a party. It, therefore, appears that, after the order was made, no step was taken to consummate it, and it was abandoned, and .afterwards, at the May term, 1859, that the suit was revived as it stands here in the name of the defendant in error.
There is, therefore, no force in these objections.
The third assignment is, that the court allowed a deed from John Black to John Henderson, for a part of the land in controversy, to go in evidence. Several objections are now urged to the admissibility of this deed, but none of these objections appear to have been specified as a ground for excluding it. It appears to be a deed purporting to be acknowledged by the grantor before a competent officer, but does not appear to have been recorded ; and the prin
If it be conceded that the acknowledgment of an unrecorded deed is incompetent and insufficient evidence of its execution and delivery, — a point upon which we express no opinion, — yet the deed was competent evidence, if it was signed by the grantor, and delivered to the grantee. It was valid as to the parties to it, though it might not be so as to creditors and subsequent purchasers of the grantor. As to the delivery, the fact that it was in the possession of the devisee of the grantee, and produced by him on the trial, was sufficient presumptive evidence of delivery. And as to its being signed by the grantor, no objection appears to have been made to it on that ground. It is an objection which was required to be specifically made ; because, from its nature, the party offering the paper' might be able to obviate it by proof of the signature of the grantor; and he should be apprised of the specific objection, in order that he might have an opportunity to do so. An objection of this nature will not, therefore, be entertained in this court, unless it distinctly appears that the paper was objected to on that particular ground in the court below. Wesling v. Noonan, 31 Miss. 599. For aught that appears, therefore, in the record, we must presume that the execution of the deed was not objected to, and hence, that it must be regarded as the deed of Black; and if so, it was competent evidence, though it was neither acknowledged nor recorded.
The fifth error assigned is, that the court permitted the plaintiff to read in evidence the second answer, setting up a claim for improvements, by ditching, clearing, &c., made on the premises by the defendant, there being another plea of the general issue filed. The purpose for which this plea was offered, and admitted by the court, appears to be, to prove possession of the premises in the defendant.
There can be no doubt but that the two answers must be regarded as distinct and substantive defences to the action. It is true, that the Statute of 1850, in relation to the forms of pleading in actions at law, requires the defence in such actions to be made by “ an answer.” But the defendant is not restricted to one answer; and even
The rule is well settled, in relation to pleas, that “where there are several distinct pleas, an allegation in one cannot be insisted upon by the adversary as an admission of a fact for a purpose distinct from the proof of the issue upon that plea; for every issue is to be distinctly tried.” 1 Stark. Ev. 337 (7th Amer. Edit. 1842); 2 Id. 20-2; Phill. Ev. (Cow. & Hill’s notes, part 1), 446, and cases there cited.
It was, therefore, error to allow the plaintiff to read as evidence to the jury, the second answer, in support of the plaintiff’s case, which it was incumbent on him to establish upon the plea of the general issue.
The force of this objection will be further considered when we come to notice the exceptions taken to the instructions of the court, in relation to the effect of this second answer as evidence for the plaintiff.
The sixth assignment is, upon the exclusion of the deed of the sheriff to Beall for the land in controversy, and the other deeds from Beall and others, under which the defendant claimed title. The force of this ground of error depends upon the validity of the sheriff’s deed.
As before stated, the deed authorized by the former act was a conveyance absolutely of a perfect title to the land sold. The Act of 1854 provides, in substance, that whenever any land should thereafter be sold for levee taxes, the tax-collector selling the same shall give to the purchaser a certificate of such sale, specifying the land sold, &c., and the amount paid by the purchaser at the sale, setting forth the name of the owner, if known, or the name to whom it was assessed; which certificate shall be acknowledged by him and filed in the office of the probate clerk for and during the period allowed for redemption, which is two years ; the redemption to be made by paying the redemption-money to the clerk. But after the lapse of two years from such sale, if the land should not be redeemed, that the purchaser should withdraw the certificate and file his bill in chancery against the owner and other parties interested, setting forth his purchase and claim, and the lapse of the two years without redemption, and praying a foreclosure; and if, on the return of process duly served or notice given, the parties should not appear and pay the money due, and subsequently accrued taxes and all costs, &c., the owner should be decreed to be foreclosed of all right or claim, and the title vested absolutely in the purchaser at the tax sale.
This statute does not expressly repeal that of 1850; but we consider its provisions so repugnant to that act as necessarily to operate as a repeal of it. By the Act of 1850, the title acquired by the purchaser was a legal title by conveyance absolute on its face,
The seventh error assigned is, the first instruction given by the court, in behalf of the plaintiff, as follows : “ That the will of John Henderson vests the legal title to the property in controversy in the plaintiff, and is sufficient to enable him to sustain this suit, if they
The first objection taken to this instruction is, that it appeared, by the declaration and the date of the probate of the will, that the defendant had been in adverse possession of the land for three years before the will was probated ; and that the testator, being disseised of the premises at the time of his death, his devise of the same was void. But this position was not correct. It is settled that the rules in relation to champerty and maintenance do not apply to persons standing in the relation of father and son, husband and wife, brothers, &c., and that a conveyance or devise of lands held adversely, or in litigation, made by such parties, is not void. 4 Kent’s Comm. 449, note b, 7th edit.
Another objection urged against the instruction is, that by the terms of the will, the land in controversy cannot be held to he devised to the plaintiff.
The will first enumerates his wife and -children, who are to be the objects of his bounty. He then proceeds to state that his “ property consists principally in landed estate at and near Pass Christian, and in Attala and Leake counties, fifteen slaves, personal property about his 'household at Pass Christian, and a considerable interest in claims and debts due,” which are not specified. He disposes of his personal and real estate at Pass Christian, his lands in Leake and Attala counties, his slaves, his stock in the Grand Junction Canal Company, certain Cuban bonds, and provides, that certain specified debts shall be paid by means of certain claims due him, and of which he would leave a list; and the will concludes in these words : — “ All else of my property and effects, I will and bequeath all to my son JSUiott, for his and his mother’s exclusive use.”
It is insisted that the words “ all else of my property and effects,” were intended to apply to all the property and effects which he had previously enumerated, and which he had not disposed of, and cannot embrace other property not enumerated. But this construction is manifestly not tenable. It proceeds upon the idea that, in the mention which he made of his property in the commencement of the will, he enumerated all his property which he wished to make disposition of. But this view is clearly not sustained by the contents
But the language of the residuary clause is very general and comprehensive. It is sufficiently broad to embrace both the real and personal estate of which the testator died seised and possessed, whether enumerated or not in the preceding parts of the will, and which he had not thereby disposed of. Doe v. Langlands, 14 East. 370; Doe v. Morgan, 6 Barn, & Cres. 512. This plain, legal force of the words must prevail, unless there was something in the will showing an intention to restrict them to some particular part of his property and effects. And we are unable to perceive anything in the will indicating such an intention.
It is further insisted, that no title passed to the plaintiff by the residuary clause, because, although personalty not disposed- of, will pass to the residuary legatee, yet that the rule is different in regard to real estate, which, when not disposed of, does not pass under the residuary clause, but goes to the heir at law. This position is attempted to be sustained by reference to a loose and inaccurate quotation in the ease of Vick's executor v. McDaniel, 3 How. 341, “ that real estate not disposed of, or ill disposed of, goes to the heir,” and does not pass under the residuary clause to the devisee. It is not correct, in the broad terms in which it is stated, that real estate not disposed of in a will, will not pass to a residuary devisee. There is, it is true, a difference between personalty and real estate, in the operation of the residuary clause of a will. In a will of personalty, a general residuary bequest carries not only everything not disposed of, but everything that is ill disposed of, and everything that in the event turns out not to be disposed of, whether by reason of a partial revocation of the will, of a lapse, or by a gift being void, or not sufficiently disposed of, or given on a contingency which does not happen. 2 Madd. Ch. 94. In a will of real estate the rule is somewhat different. There, if real estate "be specifically de
The next error insisted upon, is the third and fourth instructions given at the instance of the plaintiff, as follows:—
3. That going on the land in controversy by the defendant, either by himself, or his agents, or servants, and erecting substantial improvements thereon, worth ¡$1500, and having such possession anterior to the commencement of this suit, are such facts indicating the defendant’s possession at the time the suit was commenced, as the jury may act upon in making up their verdict, and will warrant the jury in so finding the fact to be, unless the defendant has shown by the proof in the case that the possession previously held by him was abandoned.
4. That the plea of defendant is an admission of fact on the record, which he is estopped from denying; but while it is to be taken as absolutely true as to him, it is not as to' the adverse party, unless sustained by proof.
It appears that the only matter in controversy on the trial, was the plaintiff’s right to recover the land, as presented by the plea of the general issue : there being no evidence offered by either party in relation to the claim for rents and profits set up in the declaration, and the set-off for improvements set up in the second plea or answer. If any evidence had been offered by either party upon that point, it might have been proper for the jury to consider the posi
The court, therefore, erred in giving these instructions, and also in refusing the second instruction of the defendant, which was the reverse of the rule stated in the plaintiff’s fourth instruction.
The only other error complained of, which- we consider it neces
We consider the instruction, as modified, correct, except so far as, by reference to the instructions given for the plaintiff, it treated the second plea as evidence of possession, and assumed the facts, that the defendant had gone into possession prior to the commencement of the suit, and made improvements on the land, as proved.
For the error above stated, the judgment is reversed, and the case remanded for a new trial.