| Miss. | Apr 15, 1876
delivered the opinion of the court.
This was an action of ejectment in circuit court of Yazoo county. Plaintiffs below (defendants in error) claimed under a patent from the United States government to their father, issued in 1840. Defendant below claimed under successive conveyances from E. S. Holt, who had tax title.
Holt’s tax title was void, but it afforded color of title to his sub-vendee, Iiowai’d, who went into actual possession under a deed from Holt’s vendee, Michie. The claim of defendants below was, therefore, that of an adverse possession under color of title, claimed to be rendered perfect by the statute of limitations.
There was verdict and judgment for plaintiffs below, from which defendant appealed, and assign various errors:
1. There was no error in striking out the special pleas of the statute of limitations. Thejr were nullities. The defense was available under plea of not guilty. Hutto v. Thornton, 44 Miss., 166" court="Miss." date_filed="1870-10-15" href="https://app.midpage.ai/document/hutto-v-thornton-7983939?utm_source=webapp" opinion_id="7983939">44 Miss., 166. The case of Teagarden v. Carpenter, 36; ib., 404 was decided under the no-pleading act of 1850.
2. There was no error in holding that the case was governed by the ten yeai’s statute of limitations of 1854, instead of by the seven years statute of 1844. Howard, through whom defendants claimed, had not been in possession for seven years at the date of the passage of the act of 1854, hence his right by prescription had not become complete, and it was
3. There was no error in excluding the tax deed to Holt,. nor the deed of Holt to Michie. The tax sale was invalid and the deed void. The deed from Michie to Howard, under which the latter took possession, was admitted, and this constitutes color of title, which is all that could have been accom- ■ plished by the other deeds.
4. There was error in several instructions given for plaintiffs, in which the jury were instructed, in substance, that Howard’s possession was insufficient to lay the foundation for a claim to the whole premises, if they believed that it was confined to a narrow strip near the boundary. These instructions were erroneous both as to the facts and the law of the case. The facts proved show acts of ownership, by the cutting of wood and establishment of a wood-yard, as to much more than a narrow strip near the boundaries. Howard went into possession under a deed duly recorded, and his possession was therefore co-extensive with the boundaries defined thereby. Angell on Lint., § 400; 32 Miss., 124" court="Miss." date_filed="1856-10-15" href="https://app.midpage.ai/document/calvit-v-calvit-8257080?utm_source=webapp" opinion_id="8257080">32 Miss., 124.
5. Several of the instructions granted to plaintiffs were erro- ■ neous in stating to the jury that plaintiffs were not bound by the adverse possession of defendant unless they had actual or ■ presumptive notice thereof. Actual notice was not necessary. It was erroneous to tell the jury that there must be presumptive notice, without instructing them as to what constituted such notice. Presumptive notice is an inference of law arising from certain facts. These facts should have been stated hypothetically, and the jury instructed that if they existed plaintiff' had notice in law, and if not that he did not have it. Young v. Power, 41 Miss., 209; ib., 358; Greenwade v. Mills, 31 ib., 464.
6. The 13th and 14th instructions granted plaintiffs informed the jury that if the defendants, who were children of Howard,, made a parol partition of the land among themselves, that then, before any one of them could defend under a claim of"
The court erred in refusing to charge the jury that defendant was entitled to the value of all improvements, valuable and ■ not ornamental in their character. This is guaranteed in all • cases by act of 1872, p. 25. The notice given of the claim with ■■the plea was, we think, sufficiently definite. It stated the nature and value of the improvements.
As the case must undergo a new trial we forbear to comment on the evidence, under the assignment of error that the verdict was contrary to the evidence, which was also embraced in the •motion for a new trial in the court below.
For the errors indicated above the judgment is reversed, ■.the cause remanded, and new trial awarded.