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