GUNTER ET AL. v. VIVERETT ET AL

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Docket Number

No. 35006.

Attorney(S)

A.B. Amis, Jr., of Newton, for appellants. There is no proof of possession on the part of any person, as to the land involved in this suit, except as to the defendants, and that is a legal conclusion drawn from the fact that the defendants filed the plea of "Not Guilty" which under the provisions of Section 1436, Code of 1930, admits such possession by said defendants. True it is that the appellees in their declaration charged that their ancestor died siezed and possessed of said lands, but there was no proof of such fact, nor was there proof of the fact of possession by any person other than of the defendants. Where plaintiff seeks to recover on a record or paper title, he must show a regular chain of title from the government or from some grantor in possession, and this is especially necessary where neither plaintiff nor his predecessors in title were ever in possession. But it is sufficient either to deraign title from the government or to trace title to a party in possession; it was not necessary to do both. Where plaintiff's title does not reach back to the sovereignty of the soil, at least one of the grantors in the chain of title must be shown to have been in possession of the premises at or near the time his deed was executed. Hence if neither plaintiff's immediate grantor nor any of those through whom his title is derived ever had any title or possession, he cannot recover. 19 C.J. 1053, par. 33. Defects in plaintiff's title constitute a good defense in an action against one in peaceable possession, although without color of title. 19 C.J. 1075, par. 63. In the case at bar the defendants were certainly in possession under color of title, but even had they not so been in possession under color of title then the plaintiffs could not recover under the foregoing rule which seems to us to be the proper and correct rule. The possession of the locus in quo by the ancestor of the plaintiffs under claim of title is prima facie evidence of a seizen in fee, and is sufficient to enable them to recover against a mere intruder or one claiming under a title shown to be void. Dingey v. Paxton, 60 Miss. 1038. Nor is it necessary for the defendant to make full proof of the validity of his title. His possession under his deed from a stranger, if it be bona fide and not collusive, is sufficient to rebut the proof of title from a common source made out in the first instance by the plaintiff, and to cast upon the plaintiff the burden of proving his title by regular deraignment, or of showing that the title set up by the defendant is invalid. If he fails to do this, he neither shows that he is entitled to the possession, nor that the defendant wrongfully is in possession. Hughes v. Wilkinson, 28 Miss. 600. See, also, Griffin v. Sheffield, 38 Miss. 359; Nixon v. Porter, 38 Miss. 401; Cunningham v. Dean, 33 Miss. 46. Instruction number 3 is defective in that it states that the mere fact that Bill Viverett had a deed to the property gives him legal title to the land in question, and gives him the right to possession of said land, and then says that such deed raises a presumption in favor of the said Bill Viverett, thereby ignoring the question of possession or right of possession by other parties under a similar right or claim of title. W.T. Weir, of Philadelphia, for appellees. As to the proof of possession, the record shows a deed to Bill Viverett in 1911 and the sworn declaration alleges that in 1936 Van Gunter unlawfully deprived the heirs of the possession thereof. It further alleges that the said Bill Viverett died siezed and possessed of said lands and according to this record the heirs were not divested of possession until 1936. The instructions complained of placed the issues squarely before the jury.

Judges

Roberds, J., delivered the opinion of the court.

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GUNTER et al. v. VIVERETT et al.

1. TRIAL.

Where both plaintiffs and defendants in ejectment action showed record, but imperfect, title to realty and defendants were in possession, instruction that deed to plaintiffs' ancestor gave such grantee legal title to the land and to ancestor and his heirs the right to possession thereof was erroneous as being an instruction on the weight and effect of evidence and amounted to a "peremptory instruction" for plaintiffs.

2. EJECTMENT.

In ejectment action, plaintiff must not only show title, but also right of immediate possession in himself.

3. EJECTMENT.

Ejectment is essentially a "possessory action" although its scope has been enlarged by statute to include trial of the title and recovery of mesne profits and damages.

4. EJECTMENT.

Where both plaintiffs and defendants in ejectment action showed record, but imperfect, title to realty, an instruction that record title of plaintiffs' ancestor gave rise to a presumption of title in ancestor and plaintiffs was erroneous, since under the facts shown the record either did, or did not, vest title, and there was no place for a presumption.

Roberds, J., delivered the opinion of the court.

Appellees brought an action to eject Van Gunter from twenty acres of land. Appellants, Brown, Conklin and Sartin, on their petition, were permitted to become defendants, the petition alleging that they were the owners and Gunter was their tenant in possession of the premises. Defendants filed a plea of not guilty. There was a verdict and judgment for plaintiffs and defendants appeal.

On the trial plaintiffs relied alone on their record title. That consisted of a Government patent and six mesne conveyances, the last being to Bill Viverett in 1911. The record title was imperfect: there were two breaks, or skips, from record holders. They then proved that Viverett died in 1916 and that they were his legal heirs. This action was begun in January, 1940. No proof whatever was made that Viverett, or any predecessor in title, or any of the plaintiffs, his heirs, ever had possession of the land.

Defendants then introduced their record title, showing a deed to Sartin in 1917, and one from Sartin to Brown and Conklin in 1920, which recites that Sartin had held title under his deed as trustee for himself, Brown and Conklin. There were breaks in the record title of defendants also. They offered no other proof. The declaration stated that Gunter went into possession of the premises in 1936. There is no proof as to who had possession prior to Gunter, nor the circumstances under which he went into, or has since held, possession.

In that state of the record the court granted this instruction: "The Court instructs you that the deed to the lands by E.L. Walton and his predecessors in title to Bill Viverett is sufficient to give the said Bill Viverett a legal title to said lands, together with the right of possession by the said Bill Viverett and his heirs, and raises a presumption in favor of the title being in said Bill Viverett and his heirs." Appellants contend that was error.

This was not only an instruction on the weight and effect of the evidence but it amounted to a peremptory for the plaintiffs. Both parties had record, but imperfect, title, and defendants were in possession. Plaintiff in ejectment must not only show title but also right of immediate possession in himself. Aside from the question of legal title, these plaintiffs certainly did not show any right of immediate possession. This instruction told the jury plaintiffs were entitled to possession. Originally ejectment was a purely possessory action, and, although some modern statutes have enlarged the scope of the action to include trial of the title and recovery of mesne profits and damages, it remains essentially a possessory action. 28 C.J.S., Ejectment, Secs., 1, 2 and 3, pp. 848, 849, 18 Am. Jur., pp. 8, 9, 10 and 11. One may have title and yet not be entitled to immediate possession.

Again the instruction was erroneous in telling the jury the record title of Viverett gave rise to a presumption of title in Viverett and the plaintiffs. The record either did, or did not, vest title under the facts here. There was no place for a presumption. We do not decide whether plaintiffs showed sufficient legal title, in the hope that on a new trial the facts may be fully developed so that the case may be decided on its merits.

Reversed and remanded.

GUNTER et al. v. VIVERETT et al.

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