McMullin v. Erwin

1. In order for tie defendant in ejectment to rely on a deed as color, in establishing title by prescription, it is not necessary for him to show affirmatively that the person who made the deed had either title or possession. It is enough that nothing appears indicative of fraud. 3. Prescription runs in favor of one who has color of title and possession under it, whether he holds the possession in person or by a tenant. 3. The verdict is not contrary to law or to evidence.

Ejectmeut. Title. Prescription. Deeds. Before Judge Rice. White Superior Court. October Term, 1876. Neal McMullin and Thomas P. Neal brought ejectment against Pal Erwin, to recover a certain tract of land in White county. Defendant, besides the general issue, pleaded title by prescription. On the trial, plaintiffs introduced the following evidence : (1.) A copy grant from the state to Neal McMullin for the land in dispute, dated December 3d, 1829 — the absence of the original grant was duly accounted for. (2.) Evidence of Thomas P. Neal, who testified, in brief, as follows: The lot in dispute is in White county; went to see it on August 12th, 1874; Hezekiah Erwin, defendant’s father, was then in possession. Witness showed said Erwin his title to the land. The latter said that his own title was of no account; that he would buy the land, and give witness more for it than any one else. Witness notified him not to cut timber, or commit other trespasses, on the property. He replied that he had a plenty of land of his own on which to cut timber. (3.) Evidence of E- A. Eurgerson, who testified, in brief, as follows: Heard part of the conversation between Neal and Erwin; corroborates evidence of Neal as to notice to Erwin not to commit trespasses, and the reply of the latter. Defendant introduced the following evidence: (1.) A warranty deed from one Granville Gay to H. C. Hill for the lot in dispute, dated January 7th, 1867. (2.) A warranty deed to the lot from H. 0. Hill to Hezekiah Erwin, dated August 7th, 1871. (3.) A warranty deed to the lot from Hezekiah Erwin to defendant, dated 7th December, 1874. (4.) Evidence of Hezekiah Erwin, who testified, in brief, as follows : Hill went into possession of land when he took the deed from Gay ; he cleared and cultivated a portion of it, and built a house thereon; he continued to hold and cultivate the land until he sold it to witness; the latter then placed a tenant in possession, who so continued until the sale to defendant, who then went into possession; witness testified to a consideration for the deeds from Hill to him, and from witness to defendant; denies having said he had no title to the place. In 1874, Neal came to witness and said that he owned one-half of the land; witness proposed to refer their titles to some person competent to decide which was the better; did not offer to buy the lot from Neal; Neal tendered to witness a paper, saying that it was a notice not to commit trespass on the land ; the latter refused to take it, and it fell to the ground, where he left it. (5.) The evidence of Miles S. Hill and of defendant, which was, in brief, as follows: Corroborate evidence of Erwin, except as to conversation between him and Neal. Gay claimed the land in dispute; never knew of his going into possession; Hill was the first person, of whom witnesses knew, who lived on the place ; he built a house on it in 1867. The jury found for the defendant. Plaintiffs moved for a new trial, on the following, among other, grounds: (1.) Because the verdict was contrary to law and evidence. (2.) Because the court failed to charge the jury, that if it had not been shown that Gay had either title or possession, and the jury did not believe that he had either, then he could convey nothing to defendant, or those under whom he claimed; that such a title would be founded in fraud, and could not be the basis of a good prescriptive title. The motion was overruled, and plaintiffs excepted.