Wallace v. Wilcox

An instrument of writing executed by L. J., in which he recites, that for and in consideration of one hundred dollars to him in hand paid, and for the further consideration of other money to be paid to the general government, he bargained and sold to J. S. the south half of the league of land on which he resides, and bound himself to make to J. S., his heirs or assigns, a deed in fee simple as soon as he could do it according to law, was held to be a bond for title, and not an absolute conveyance. Possession by a tenant will support the plea of the statute of limitation of three years in favor of the landlord. The declarations of a tenant, as to the character of his possession, made when about to enter into possession, or while in possession, in disparagement of Ms own title, are admissible in evidence in support of the title of Ms landlord, in a suit of trespass to try title, brought by a third party against himself and Ms landlord. ' One of the defendants, in a suit of trespass to try title, made oath that the original deeds had been lost, that he cannot procure the originals, that he has made diligent search for the originals in the places where the same were most likely to be foiítid; it was held to be a sufficient compliance with the statute to lay the foundation for the introduction of copies.

Appeal from Cherokee. Tried below before the Hon. R. A. Reeves. This was a suit of trespass to try title brought by Benjamin R. Wallace and William W. Wallace, appellants, against William Wilcox, one of the appellees, for a half league of land in Cherokee county. William Wilcox stated, that he was tenant in possession under William Scott and Edmund Scott, and disclaimed all title in himself. William and Edmund Scott, by petition, alleged that they were the real owners of the land, and prayed to be made parties defendant. Rebecca R. Wallace intervened and claimed • a life estate in the upper half of the half league in controversy. On the trial, by consent, the original grant to Levi Jordan of one league of land, under which all parties claimed, was read in evidence. The plaintiff then introduced in evidence the following instrument, .to wit: “ Under the consideration of one hundred dollars to me in hand paid, and furthermore for and in consideration of other moneys which are to be paid to the general government, I do by these presents bargain and sell to Jeremiah Strode one equal half of the league of land on which I now live, which being the lower or the south end, and I do bind myself and heirs to make to the said Strode or his heirs or assigns, a deed in fee simple as soon as I or they can do it according to law. In testimony whereof, I have hereunto set my hand and seal this 4th day of February, in the year of our Lord 1835. ■ “Levi Jordan, [l. s.] “Attest, W. R. Peyton, “Thos. J. Rusk) “John M. Dor.” He also read deeds from Jeremiah Strode to B. R. Wallace, and from the latter to W. W. Wallace, for the upper half of the half of the league for the use of Rebecca Wallace during her life. e Defendants read in evidence a certified copy of a deed from Levi Jordan and Cynthia Jordan his wife, to Jesse Duren; also, a certified copy of a deed from the latter to M. Y. Lacey, and a deed from him to defendants. As a foundation for the introduction of certified copies of the foregoing deeds, William Scott, one of the defendants, made affidavit that “the original deeds have been lost, that he has made diligent search for said originals in the places where the same were most likely to be found.” Defendants then introduced witness, Elias Kelson, and offered to prove by him the time when Wilcox entered upon the land, and that he, at the time, declared that he entered as tenant for Scott. To which plaintiffs objected, because defendants could not avail themselves of the possession of the tenant Wilcox under the plea of the statute of limitation of three years, unless they showed a written tenancy or contract of tenancy between the defendants Scott and Wilcox, and because the declarations of Wilcox were not proper evidence of the contract of tenancy, and could not be given to sustain the pleas of the statute of limitation, for the defendants Scott, or that Wilcox was their tenant. The court overruled the objections. Witness then stated that defendant Wilcox came to Cherokee county in the year 1850, called on witness, asked him to show him the land in controversy; witness showed him the land and the lines. Wilcox went upon the land about the time above stated, and said that he had a contract or understanding with defendants Scott, that he should take possession of the land for them, and that he, Wilcox, should clear forty acres of the land in controversy, and occupy the land until the Scotts came to the country. Wilcox then entered upon the land, • and continued to live thereon to the present time; made improvements, cleared some forty acres; had never cleared any more; had enclosed no more; but held the land for the Scotts, who lived in Alabama, and had never lived on the land; had Visited it frequently. The court charged the jury, “ If you believe from the evidence that Strode, or any one for him, complied with the bond for title by paying to Jordan the purchase money, then Jordan could not defeat the title by conveying the land to another. If you find the bond was complied with by Strode, though a deed was not made, and you find that the plaintiffs have the older right, they would be entitled to recover the land, and such damages as they may have sustained by the wrongful acts of the defendants, unless the plaintiffs are barred by the statute of limitations of three years, to be decided from the evidence. Possession under the statute may be by the true owner or his tenant. In either case the possession must be actual, continuous, adverse and exclusive, for the period of three years or longer, next before the filing of the original petition claiming under a regular chain of title from the government to the claimant, and duly recorded. Possession by the tenant must be open and notorious." It must be taken and held in good faith in the name of the owner, and for his benefit. Declarations of the terms made and accompanying the act of possession, are admissible to explain the character of his possession, when made in good faith, to be decided from the evidence. Possession under a deed in which the land is described, extends to and includes the land within the limits of the deed or boundary.” The following instructions Were asked by the plaintiffs and refused by the court: “ 1st. Plaintiffs- ask the court to charge the jury, that the provision in the instrument of writing from Jordan to Strode, with regard to the payment of dues to the government, did not make it obligatory on plaintiffs to prove that the dues had been paid to the* government, and even if they had not been paid, it would not affect the validity of the instrument so as td defeat the plaintiffs’ tights under it. That the instrument is evidence that all was paid by Strode for the land that he would be required to prove that he had paid. “ 2d. That the instrument of writing Was a conveyance of the legal and equitable title to the land described, and is sufficient evidence of title to maintain an action of trespass to try title.That the declarations of Wilcox, while upon the land, would be no evidence for the defendants Scott. That the occupation of the land by the defendant Wilcox, cannot avail the defendants Scott, unless the defendant Wilcox held the land in controversy for three-years by a written contract of tenancy.” Verdict and judgment for defendants; motion for new trial overruled, and appeal by plaintiffs.