Wightman v. Doe ex dem. Reynolds, 24 Miss. 675

Wightman v. Doe ex dem. Reynolds

24 Miss. 675 | Miss. Ct. App. | 1852

Mr. Justice Fisher

delivered the opinion of the court.

This was an action of ejectment tried at the October term, 1849, of the circuit court of Monroe county, to recover certain lots in the possession of.the plaintiff in error, situate in the town of Aberdeen.

The jury found the issue for the plaintiff, whereupon the court rendered a judgment only for the nominal damages assessed by the jury at one cent, and for costs, in favor of the plaintiff’s lessor. This was no judgment upon the issue tried-by the jury. It should have been, that the plaintiff recover his term yet to come, in and to the lots in controversy. The failure to render the judgment will not, however, affect the verdict, upon which the proper judgment may still be rendered.

The important question for our adjudication arises upon the defendant’s motion in the court below for a new trial, which was overruled by the court, when a bill of exceptions was taken embodying the evidence, which we will only notice so far as it may be necessary to understand the main point presented by the record, and that is, that the verdict is not sustained by the evidence before the jury.

The counsel for the plaintiff in error insist that the plaintiff wholly failed in establishing a title to the premises in- question. But for the proof introduced by the plaintiff in error, this position no doubt would be correct. The jury must be guided by the whole testimony before them, whether offered by the plaintiff or defendant, and if it will sustain then- verdict, it must be treated as correct.

After the plaintiff had closed his evidence, the defendant below proved that she was the widow of George Wightman, deceased, and that her husband took possession of the lots in controversy in the year 1847, and that she had since that time held possession. This was all the testimony which she introduced;. *680and if it means any thing, it means that she was, at the commencement of the suit, only in the enjoyment of such right and title as her husband had before his death. Admitting, then, that she is entitled to make any defence which her husband could make, if living, let us ascertain how the plaintiff’s evidence places him. He, jointly with one Henry Anderson, on the 20th of February, 1843, as trustees of the town of Aberdeen, conveyed the lots in suit, to Samuel J. Gholson. In this deed is the following covenant: “And the said trustees, parties of the first part, for themselves and their successors, covenant with the party of the second part, that they have full right to convey said premises by virtue of a deed made to us by Robert Gordon and James Davis; and further, that the said premises are not, nor shall be embarrassed by any acts of our own,” &c. By this covenant, "Wightman not only admitted that he had a good title to the premises at the date of the deed, but he thereby precluded himself from acquiring any title in future which could in any manner embarrass the title conveyed, or the rights of his vendee under the same. In the attitude in which the defendant stood in the suit, it was, therefore, wholly unnecessary for the plaintiff below to go behind this deed. Wightman, whose title or right of possession is now set up in the defence, could not, after his deed, acquire any right whatever from any third party; he could in future only become interested in the lots by contracting with Gholson, his vendee, or with a person deriving title from Gholson. A title acquired from any other source, would give him, Wightman, no rights whatever in the premises; but it would only enable him to perform in the true spirit the covenant in his 'deed, and such title would inure to the benefit of his vendee.

Our inquiry must therefore be, whether the plaintiff has acquired Gholson’s title; if so, he is entitled under the proof to recover. Gholson, in 1845, conveyed the lots to John Wight-man, who afterwards conveyed the same by deed of trust to Reuben Davis, to secure Reynolds in the payment of a certain debt; and Davis, by virtue of the power vested in him under this deed,- conveyed to the plaintiff’s lessor, Reynolds. The defendant objected to the reading of this deed of trust to the *681jury; but the objection was overruled by the court. The deed appears to have been executed in the county of Pickens, and State of Alabama, and to have been proven by one of the subscribing witnesses thereto, before a justice of the peace of said county. The objection urged is, that the clerk of the county court of Pickens county, who certifies to the official character of said justice, does not certify that it is a court of record. The certificate otherwise appears to be in due form, and attested by the seal of said court. The statute must be construed so as to attain the end. the legislature had in view. "We must suppose that the clerk of that court, in which the evidence of the magistrate’s appointment was, should give the certificate; and thus viewing the question, we think the certificate sufficient.' Hutch. Code, 617, 618.

The next objection urged is, that the deed of Reuben Davis to the plaintiff’s lessor, was read to the jury, without showing that he had given the notice required by the trust; that the debt was due, and that he had power to sell to pay the same. If the defendant below claimed under John Wightman, the grantor in the deed of trust, we might posáibly consider these valid objections. The question, however, has not been argued, but only intimated by counsel on one side; and we, therefore, leave it open till it shall become necessary to decide it.

The failure of the trustee to give the notice, or his making a premature sale, could only prejudice the party who executed the deed of trust, or one claiming under him; and no one, therefore, but.the person sustaining the injury, can make the objection. As to third parties the sale will be regarded as valid, because they cannot question the action of the trustee, or call him to account for a breach of trust.

Thus viewing the case, we should feel no hesitation in affirming the judgment, if a proper one had been rendered. We must, therefore, reverse, and render the proper judgment on the verdict; which is, that the plaintiff recover of the defendant his term yet to come in the lots, and costs, the plaintiff releasing the one cent damages. Writ of habere facias awarded.

Judgment against plaintiff’s lessor for the costs of this court.