The evident theory on which plaintiff's instruction is based is, that in actions to recover damages for trespass on real property it is essential to a right of recovery that plaintiff show, among other things, that at the commencement of the action he was in actual possession of the property trespassed upon. We say this is the evident theory of the instruction, because it asserts this in legal effect; and though coupled with a statement of an adverse, actual, and peaceable possession of defendants, " for more than one month before the time" (commencement of suit), it is not perceived how the clause last quoted forms any essential qualification to the first clause of the instruction, relating to the defendants' " exclusive and peaceable possession of the ground in dispute," at the commencement of the action. The period " for more than one month" named, has no relation to any period designated in the law as constituting a bar to the right of action in any supposable case, nor has it any relation, in the light of the pleadings and proofs in this case, to the time of the first trespass or entry of defendants upon the plaintiff's mining claim. The plaintiff's pleading and proofs show that defendants first made their entry about April 21st, 1870, and the action was only commenced June 25th, 1870, or more than two months after defendant's first entry. It follows, therefore, that unless this theory as stated, on which the instruction refused was based, is correct in law, the Court did not err in its refusal.
We do not reply to any citations of authority contained in appellant's brief on this point, since we are not able to procure a copy for the purpose; but we confidently assert that there is no authority in the law for such a rule as is asserted in this instruction. The true rule is correctly stated by Mr. Chitty, thus (1 Ch. Pl., top p. 174): " The gist of the action (trespass quare clausum fregit ), is the injury to the possession; and the general rule is, that unless at the time the injury was committed, the plaintiff was in actual possession, trespass cannot be supported; and though the title may come in question, yet it is not essential to the action that it should:" See, also, Id., top pp. 176, 177.
From the last citation, it appears the rule is held by Mr. Chitty to be, that trespass may be maintained by a plaintiff against a defendant by whom he has been dispossessed, for the disseisin itself, but not for an injury after the disseisin, until he has regained possession: See, also, Stuyvesant v. Tompkins, 9 Johns. 60; Markham v. Freeman, 12 Johns. 183; Van Brunt v. Schenck, 11 Johns. 385, 386.
The rule as established by all the authorities seems to be, not that plaintiff must show himself to have been in possession of the premises trespassed upon at the commencement of the action brought to recover damages therefor, as is asserted in defendant's requested instruction, but that he was in possession at the time of the trespass complained of, since the gist of the action is the injury to his possession; and the fact that the trespass from which the injury results is shown to be of so flagrant a nature as to work a disseisin of the plaintiff, constitutes no defense to the action, as asserted in said instruction, although, as it is sometimes held, the effect may be to limit the plaintiff's recovery in damages for the injuries sustained to the plaintiff's possession, or to such as accrued up to the time that such disseisin was fully accomplished. If, as we think, this is the true rule, there was no error in refusing the instruction.
JUDGES: Belcher, J. Mr. Chief Justice Wallace did not express an opinion.
OPINION
BELCHER, Judge
This is an action to recover damages for certain trespasses alleged to have been committed upon the plaintiff's mining claim. The defendants deny the plaintiff's title to the claim, and set up title in themselves. It is admitted that the claim in dispute is a part of a larger claim, known as the Willow Bar claim, which formerly belonged to one James Hudson, under whom both parties claim title. To establish his own title, the plaintiff proved that in January, 1868, Hudson made a verbal sale of the claim to him, and in the August following, placed him in possession of it, and that he then began to mine on the claim, and continued mining there until November, when he was stopped by high water. He also proved that in March, 1869, Hudson made and delivered to him a bill of sale, which reads as follows:
" Michigan Bluff, March 9th, 1869.
" This is to certify that on or about the 1st day of January, 1868, that I presented to and sold C. G. Myers, and on or about the 1st of July, 1868, did give the said C. G. Myers possession, by a verbal agreement, of a certain piece of ground; and, to avoid further trouble in regard to said claim, I do this day give him a clear bill of sale, defining the lines as before, thus: Commencing at an oak bush near the gate of Myers' cow-yard, running straight across the river to the head of the wing-dam put in by Owens & Co., in 1868; from thence to a prominent point of granite bedrock in El Dorado County; from this line down to the old Willow Bar line; to have and to hold the same, his heirs, assigns forever. The said C. G. Myers agrees to not back the water, or interfere with the above ground in shape or manner belonging to me, and known as the Willow Bar claim.
" Witness my hand: JAMES HUDSON.
" Witness: Ed. Blifka." The defendants objected to this paper being received in evidence, on the ground that it appeared upon its face to be void for uncertainty, and to be a gift without consideration. The Court overruled the objection, and we think rightly. It is claimed that it is uncertain, because it uses no words of conveyance, and because it does not state in what township, county, or State the property is situated. No precise form of words is necessary in a bill of sale. If it be clear that the maker intended to make a bill of sale, and to pass thereby the title to property, the law will, if possible, so construe the words used as to effectuate that intent. On looking at this paper, there can be no doubt that Hudson intended to make a bill of sale which would pass whatever title to the mining claim described still remained in him.
One of the points named in the description is in El Dorado County, and all of them, so far as we can see, may be well known monuments, easily found and distinguished.
If it was true that Hudson was giving away his mining claim, that fact furnished no ground for refusing to admit the bill of sale in evidence. He had the full right, so far as the Court could know at that stage of the case, to give it away, or do what he pleased with it.
To establish their title, the defendants proved that in November, 1868, Hudson made a mortgage upon the Willow Bar claim to secure a debt then owing by him; that on the 18th of April, 1869, he died, leaving a will, in which he directed his executors to sell all of his property and pay his debts; that the debt secured by mortgage was in due time presented to and allowed by the executors and the Probate Judge, and thereafter, upon an order of the Probate Court, the mortgaged property, including the property in dispute, was sold, and the proceeds of the sale applied to the payment of the mortgage debt, and that the defendants hold under the purchasers at this sale.
It is claimed for the defendants that the order of sale made by the Probate Court was, in effect, a foreclosure of the mortgage, and that the purchasers thereunder took, by relation, the title which Hudson had at the date of the mortgage.
This position cannot be maintained. The Probate Court is not a Court of equity, and it has no power to foreclose a mortgage. Sales made under its orders pass only such title as the decedent had at the time of his death, and such as the estate may have subsequently acquired.
At the conclusion of the testimony, the defendants requested the Court to instruct the jury as follows:
" If the jury find that Hudson died in debt, and that before his death he gave away the ground in dispute to Myers by the paper offered in evidence, and received no consideration therefor and should find that Hudson's property would not pay his debts without a sale of the ground in dispute, and that the ground in dispute was sold by Hudson's executors, of necessity, to pay the debts, then the sale by the executors carried the title, and Myers' paper did not give him any title. If the jury find that at the time this suit was commenced, the defendants were in the exclusive and peaceable possession of the ground in dispute, and had been in such exclusive and peaceable possession for more than one month before that time, then this possession of the defendants precludes the plaintiff from bringing this form of action, and the jury must find for the defendants on the question of damages."
The Court refused to instruct as requested, and the refusal is assigned as error.
We see no error in the action of the Court in this respect. If the hypothetical facts stated in the first instruction--of which there is no evidence on the record--existed, they furnished ground for setting aside, in behalf of creditors, the conveyance to the plaintiff; but they furnish no ground for the defendants, who are not creditors, nor in the place of creditors, to assail his title.
The second instruction was properly refused, because, if the plaintiff owned the ground in dispute, the first entry upon it by the defendants was unquestionably a trespass, for which an action would lie. The objection that if the defendants had remained in possession for a month or more after their first entry, the action must wholly fail, cannot, therefore, be maintained.
The other points made do not require special notice.
Judgment affirmed.