1. Plaintiffs relied exclusively on their possession; and defendants could not be permitted to show that plaintiffs held under the Carzadores grant.
Besides, there is nothing in the record to connect Martin Murphy with the Carzadores grant, or to show that he ever had possession of the land in dispute; and hence no title could be shown in Ingoldsbe and others or their grantees. The deeds offered by defendants were blank paper in effect. They showed no title in any one, because they did not come from any source of title. Plaintiffs being in possession, their purchase frem Ingoldsbe and others may have been to buy peace; it was no evidence that they recognized the title of the grantors. Ingoldsbe et al. may have held one-half the grant from Murphy, the other half from another person. So that there was no evidence tending to show a tenancy in common, or joint tenancy, between plaintiffs and defendants, and the Court below correctly ruled that they held adversely. The true rule as to holding under common title and purchasingoutstanding title is laid down in Jackson ex dem. Preston v. Smith, 13 Johns. 406.
2. The parol agreement to divide the land was not carried into effect, and plaintiffs had the right to rescind it. (Smith's Leading Cases, 566.)
3. There was no error in allowing witnesses to give their estimate of the damages. (1 Greenl. Ev. sec. 440.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
We find no error in the record. The principal errors assigned are, the charge of the Court and its rulings, and its refusal to instruct in respect to the effect of certain deeds from Murphy to the plaintiffs and to the defendants respectively, of an undivided interest in the land sued for. The plaintiffs offered evidence--which was not disputed--tending to show the possession and actual occupancy of the tract in controversy, by the plaintiffs. The defendants sought to introduce these deeds for the purpose of showing that the plaintiffs and defendants were tenants in common of these premises, and therefore that the plaintiffs could not maintain this action. The error assigned in connection with this subject cannot be maintained, for the reason that no deraignment of title was made from its source, nor any proof to connect the holding of the parties with these deeds, or to show that possession was taken or claimed under them. It is true, that where the plaintiff and defendant hold under a common source of title, it is not necessary, upon a question of title, for either to go beyond that source; but the mere production of a deed from a stranger is not sufficient to show either that he had title, or that the grantee entered under or holds in subordination to the deed. The deed may have been taken merely to quiet a better title or to fortify a possession already taken under a precedent and better claim. Prima facie the deed, in the absence of explanation or other proof, was not relevant, or, at least, no proffer of such proof having been made, we can perceive no error in its exclusion to the injury of the defendants.
2. The Court did not err in charging that a mere unexecuted oral agreement for the division of the land according to certain boundaries was not binding on the plaintiffs.
3. Nor did it err in admitting testimony as to the extent of the injury of the defendant's cattle to the land or grass; in the manner in which the question was put and answered, this proof amounts to little, if anything, more than an estimate of the value of the pasturage or of the grass.
It is not necessary to notice the other points.
Judgment affirmed.