1 Chand. 52 | Wis. | 1849
The only question arising in this case is, whether the instructions given by the judge to the jury were correct.
The action was ejectment, and the bill of exceptions shows that the plaintiff, to establish his title to the land, showed a patent from the United States to Albert G. Ellis, and a deed from Ellis to him; the deed was executed on the 8th day of June, 1846, and recorded on the 10th day of December, in the same year.
The defendant showed that he took possession of the land, claiming title, on the 1st day of December, 1844, and that
The errors assigned are, that the judge erred in charging the jury that the conveyance from Ellis to the plaintiff was void; also in not leaving the question of adverse possession to the jury as a question of fact; and also that the court rendered a wrong judgment.
The first error assigned brings before the court a very important question, and one which cannot be solved without some difficulty. In many of the states no such difficulty exists, as conveyances of this description are expressly forbidden by statutes which seem to re-enact, in a modified form, the statute of 32 Hen. VID, ch. 9, against purchasing or selling pretended titles. By that statute, the seller of land forfeited the whole value of the land attempted to be sold ; and the purchaser also, if he purchased knowingly, unless the former had possession of the land at the time of the convey-anee. 4 Kent’s Com. 447.
But it is contended by the plaintiff in error, that in this state, where there is no statute in existence against such conveyances, they may be executed, and will have the effect to .convejr to the purchaser the title which the seller has to the land at the time the conveyance is executed. If conveyances of this description were forbidden by statute alone, this argument would be conclusive ; but the statute of 32 Hen. VIII, above alluded to, was passed in affirmance of the common
In Massachusetts and Indiana, where such conveyances are not forbidden by statute, they are held to be void by common law. Brimley v. Whiting, 5 Pick. 348; Fite v. Doe, 1 Blackf. 127. And I see no reason why such should not be the rule here.
The bill of exceptions shows that, at the time the plaintiff obtained his deed from Ellis, the defendant was in possession, claiming title under his deed from Conlding, and it must follow that his possession was adverse and operated as a dis-seizin of Ellis, and rendered his deed to the plaintiff void, if the defendant acted in good faith and believed his title was valid. Livingston v. Peru Iron Co. 9 Wend. 511.
It was contended, in the argument for the plaintiff in error, that the statute of this state (Ter. Stat. 259, § 6), would have the effect to entitle the plaintiff to recover, for the reason that the possession of the defendant had not continued for twenty years.
It is manifest that this section cannot have the effect contended for, if the deed from Ellis to plaintiff is void, as it only enables the party, who establishes a legal title to the premises, to recover against the person in possession, unless his possession has continued for twenty years.
But we are satisfied that, in one respect, the charge of the judge was incorrect, and that, for this reason, the judgment must be reversed. The jury were instructed that the deed from Ellis to the plaintiff was void ; this was probably the case, but if so, it must have been for the reason that the possession of the defendant, at the time it was executed, was adverse ; and in order to constitute an adverse possession, the defendant must have acted in good faith; he must have
Judgment reversed.
