4 Indian Terr. 679 | Ct. App. Ind. Terr. | 1903
Appellants make three several assignments of error, which are as follows: “First. The court erred in instructing the jury, substantially, that plaintiffs were entitled to recover unless defendants showed a better title than plaintiffs. Second. The court erred in instructing the jury that unless defendants had some conveyance from somebody who had a better title, or an ‘equal title/ they could not hold the land against plaintiffs. Third. Thie court erred in refusing to instruct the jury, as requested by defendants, that if plaintiffs’ grantor had given the lands in controversy to defendants, or had abandoned the same, and agreed with defendants on a line, plaintiffs could not recover.”
The court instructed the jury as follows:
“This is an action brought by the plaintiffs against the defendants for the recovery of the possession of certain lands and for damages for the use of same while the defendants were in possession or since the institution of this suit. ■ The burden is upon the plaintiff to establish by a fair preponderance of the evidence the casé that he sets up in his pleading —the allegations he makes in his complaint.
“You’are the sole judge of the weight of the testimony and of the credibility of the witnesses. The question of fact is one exclusively for your consideration. The court would instruct you that in an action of ejectment the plaintiff recovers upon the strength of his own title. If you are satisfied from the evidence that the plaintiff is the owner of this land by purchase
“The court would instruct you that, unless the defendant has some conveyance from somebody who had a better title, he cannot hold possession of this land as against the plaintiff, provided the proof may show you that the plaintiff had a regular chain of title from the original parties who put it in, as against the plaintiff's title, if the evidence satisfies you that he has a regular chain of title, unless the defendant has shown an equal title or a better title from some one else, why your verdict should be for the plaintiff. If the evidence has not shown that, then your verdict should be for the defendant.
“Mr. Cruce: We except to the court's charge as given to the jury.
“Mr. Gilbert: I think they should be instructed to disregard the alleged verbal gift the defendant claimed.
“The Court: I don't think that amounts to anything, unless they are satisfied that it was an absolute transfer to. defendants.
“Mr. Cruce: We except to that portion of the court’s, charge, and we ask the court to instruct the jury that if they believe from the evidence that the plaintiff, or those through whom he claims, had abandoned the premises in controversy, or if they believe they had given the lands to the defendants, or agreed upon the boundary line and agreed to move the fpnceon .the same, defendants are entitled to the possession of the-premises, and plaintiff cannot recover.
“Mr. Cruce: To which we except.”
Objection is made to the court’s instruction because it used the words in the instruction, “If the evidence shall satisfy you that the defendant has a better title than the plaintiff, then your verdict should be for the defendant.”
It is urged that a plaintiff in an action of ejectment is under the ordinary rule that he must recover by the strength of his ■own title, and not on the weakness of his adversary’s, and this is certainly the rule required in actions of ejectment. And were these parties claiming through a different source, we are inclined to think that the instruction in the form presented, as requiring the defendant to show a better title, would not correctly state the law; but where two parties claim from a common source, both deraigning their title from the same source, it is certainly incumbent upon a defendant claiming to have ownership that he have the better claim to the premises, because it alone must prevail.
“Where both parties claim under the same person, since neither of them can deny his right as between them, the elder is the better title and must prevail.” Finch vs Ulman, 105, Mo. 255, 16 S. W. 863, 24 Am. St. Rep. 383; Gilliam vs Bird, 30 N. C. 280, 49 Am. Dec. 379, Christenbury vs King, 85 N. C. 229; Schwallback vs Chicago, M. & St. P. Ry. Co., 69 Wis. 292, 34 N. W. 128, 2 Am. St. Rep. 740; Renneker vs Warren, 17 S. C. 139.
Éut in the case at bar the defendant in his pleading claims that the grantor O. W. Seay abandoned all claim, right, or title that he had in and to the premises sued for, and permitted said land to be a part of the public domain.- This was affirmative matter, and the defendant would be bound to establish this fact. The evidence of the defendant upon this point was sub
Upon this point, Oscar Seay, being recalled, testified as follows: “My brother Jeff and myself were at Mr. Reynolds some time in the summer of 1898, and I was talking to Mr. Reynolds about this land, .and told him that if he would pay me one hundred dollars 'for the land west of the section line I would deed it to him or the Duford heirs, and that he could then put the fence on the section line; but I did not tell him I could not hold the land, or did not want to hold it, or that I would give it the Duford heirs, or that he could move the fence out unless he paid me for the land.”
In view of this evidence, the court told the jury that the equal or better title to these premises' should prevail; and we do not think in view of the particular facts of this case, that the instruction of the court was error, or, if there were error in such instruction, it was not such as to be prejudicial to the right of the defendants. The rule of law is that a legal title to land cannot be proved by parol, evidence in an action of ejectment. Kirkpatrick vs Clark, 132 Ill. 342, 24 N, E. 71, 8 L. R. A. 511, 22 Am. St. Rep. 531, and note.
We are satisfied, on the whole case, that the jury was properly advised by the court as to the law, and it was in their province to say which of these two parties had the better title to these premises.
The evidence in the case was conflicting as to whether or not possession of the premises had ever been given to Reynolds
There being no error ascertained in the case, the decision of the court below is therefore affirmed.