| Miss. | Apr 15, 1876
delivered the opinion of the court.,
Elgin M.-and Duncan S. .-Wells.as heirs at law of their maternal grandfather, Duncan McAlpine, instituted their action of ejectment in the circuit court of Hinds coiinty, district No. 2,:
The land, having descended from their maternal grandfather after the death of their mother, could not of course be conveyed by their father’s deed.
Defendant offered no testimony except as to rents and improvements ; neither party called upon the other for any bill of particulars of their claim of title, under the provisions of § 1551 of the Code.
There was verdict and judgment for plaintiffs, and defendant appealed. The principal error complained of is the action of the court in giving and refusing instructions. . '■
The court instructed the jury, at the instance of plaintiffs, that “ it was not necessary for them to trace their title from the government, but that it was sufficient for them to show and trace their title from Duncan McAlpine, the common source of title to the land in question ; ” and, further, that their grandfather, “ Duncan McAlpine, having survived' their mother, plaintiffs inherited one-fourth part of his lands at his death, and their father, Spira M. Wells, had no interest .in said lands whatever, and the deed executed by him to W. H. McAlpine conveyed no title;” and, further, “that inasmuch as defendant held all of the land under a deed from W.TI. McAlpine, one of the children of Duncan McAlpine (but who was only the heir of one-fourth part thereof), it was not necessary for plaintiffs to show any title anterior to that of Duncan McAlpine, nor could defendant -set up any outstanding title unless the same- was adverse to the common source.” • The objection to all of these instructions is that they assume as conclusions of law what should have been submitted to the jury as questions of fact.
They had laid before, the jury a deed from their father -to W. H. McAlpine, and one from the latter to the defendant. They had thus raised, perhaps, a strong probability that ■defendant was claiming under their grandfather, through their father and uncle; yet still this should have' been left for the jury to decide as a question of fact.
Certainly their father was no heir of their maternal grandfather, and was therefore a stranger to the title. So their maternal uncle was likewise a stranger to the title, except as to an one-fourth part of the land. When, then, the father and uncle undertook to sell the land, it may be that they did not trace title through the grandfather, but claimed adversely.
Certainly there can be no absolute conclusion of law that in conveying a title which they had not inherited from him they were deriving it from him. The 1st instruction announces, as a legal proposition, that it'was unnecessary for plaintiffs to do more than trace title “to Duncan McAlpine, the common source,” thus assuming that defendant holds under said Duncan, and that he is the common source. The jury should have been instructed that, if they believed from the evidence that defendant’s title was derived through Spira Wells and W. H. McAlpine from Duncan McAlpine, then it was unnecessary for plaintiffs to trace title beyond the latter. So, also, the 2d instruction, instead of stating absolutely that Spira M. Wells had no interest in the land, and consequently conveyed none by his deed, should have been •confined to the statement that he had none as the son-in-law ■of Duncan McAlpine, without excluding the possibility of his having acquired it otherwise. The 3d instruction is liable to the same objection as the 1st, namely, that it assumes that both parties trace title to a common source, instead of leaving this fact to be determined by the jury from the proof. The court below refused to give several instructions asked for
If these instructions had stopped with announcing the converse of the'propositions contained in' those of" plaintiffs,’ it-' would ’ have been error to have refused them; but- they go further, and enunciate the doctrine that the rule of law which: relieves a plaintiff in ejectment'from-'proving a perfect title in • a common source, from which both parties claim, applies only to cases in which both parties claim their title by deed, thus-excluding cases where one or both parties claim by descent, in • wholé or in part. " ...... .
This position, though pressed iir'argument, seems unsup-.. ported by any authorities which have been produced or- with • which we are familiar ; nor do we' see- any reason or principle' why the rulé should’be different'in cases'"Of common descent, from that in'cases of common title deeds. ■ “ ■
Exception was taken on the trial, and it is assigned for error that plaintiffs were permitted to examine a witness as to certain-matters and then dismiss him for the time being, and subse-:. quently recall him,' stating at'the time he was dismissed that' they intended to recall him, and defendant insisting that-they. should go on in the first instance and exhaust him.
There is thought tó be no error in' this. It was a matter in. the discretion of the court, which' seems to have been not unwisely exercised. ... , . ■
The witness was first introduced to prove-the heirship of the. parties, and was dismissed iff order that the' other links in the¡ title might be otherwise supplied. --.-
When the proof of title was concluded,- this witness, with others, was introduced upon the question of mesrLe profits and: improvements. ' 1
It is further assigned’ for error that' defendafit was not permitted to testify that he bought the land in good faith and paid' the purchase money. ' "
There was no error in this.' The question at issue was solely
The testimony was therefore irrelevant.
For the errors, indicated as having; been committed in the-granting of the instruction the cause is reversed and remanded,, and a new trial awarded.