Rothschild v. Hatch

1. Ejectment. Adverse possession. Color of title. Defective will. To show color of title, the defence in ejectment offered two witnesses to prove that they had seen a paper purporting to he a will, with the signature of her who was the plaintiff’s source of title attached, devising the land to her husband, by virtue of whose continuous possession the Statute of Limitations was relied on. Held, that it was not error to exclude the evidence, because the alleged will was never probated nor regarded and acted on as conferring right. 2. Evidence. Hearsay. Marriage settlement. Testimony that the husband of the original owner of land had remarked to the witness that it was agreed or settled between him and his wife that she should keep her separate property, is incompetent to prove a marriage settlement. 8. Party as Witness against Estate of Deceased Person. Claim assigned before suit. Code 1871, § 758, which provides that “no person shall testify as a witness to establish his own claim of any amount for or against the estate of a deceased person which originated during the lifetime of such deceased person,” does not apply where the witness has conveyed his claim by deed of gift before suit, which is prosecuted by his grantee. 4. Same. Reinhardt v. Evans overruled. Competency, under § 758 Code 1871, relates to the time when the witness testifies. Reinhardt v. Evans, 48 Miss. 280, overruled. 5. Same. Ejectment. Permissive possession. A plaintiff in ejectment is not a competent witness to prove a permissive possession for himself by admissions made by the deceased landholder in his lifetime. 6. Same. Code 1871, § 758. Construction. In Code 1871, § 758 (Code 1857, p. 510, art. 190), the term “claim” includes any demand or right asserted and relied on against the estate of a deceased person, Lamar v. Williams, 39 Miss. 342; and the expression “estate of a deceased person” means all the property of every kind which one leaves at his death, Jacks v. Bridewell, 51 Miss. 881. 7. New Trial. Erroneous admission of evidence. Immaterial error. Notwithstanding the erroneous admission of testimony, a verdict which, apart from that evidence, is fully supported by the facts, should not be set aside. 8. Ejectment. Statute of Limitations. Possession adverse and permissive. Possession commenced in subordination to the title of the ancestor of the plaintiff in ejectment, which never assumes an adversary chai’-acter, but is accompanied by a recognition of permissive holding, will not bar the right of entry, however long continued.

Eeros, to the Circuit Court of Warren County. Hon. UptoN M. YouNG, Judge. This was ejectment by the heirs-at-law of Sarah B. Hatch, who in 1843 married Richard Griffith, and a few months thereafter died without issue born alive. She was at the time of her marriage, and for some time before, the owner and in possession of the property in controversy. Richard Griffith continued in possession to his death, in 1862 ; his second wife, and his children by her, have retained possession ever since, and under them the defendant claimed as lessee. The only defence was the Statute of Limitations, on the theory that Griffith’s possession was ad vérse after the death of his first wife. The plaintiffs showed possession, title in their ancestor and her marriage, and rested. The defence showed that Griffith collected the rents and paid the taxes from 1843 to 1862. For the purpose of showing color of title, the defence then offered to prove by two witnesses that they had seen a paper purporting to be a will, with the signature of Sarah B. Griffith attached, devising the property in controversy to Richard Griffith. It was admitted that the will was never probated. This was- excluded by the court. In order to establish a marriage settlement, the defence offered to prove by a witness that Griffith had remarked to him “ that it was agreed or settled between him (Griffith) and Miss Hatch that she should keep her separate property.” This was also excluded. The plaintiffs, in rebuttal, proved declarations of Griffith to show the permissive character of his possession. To two of the witnesses offered to prove the declarations — A. L. Hatch and B. L. Hatch— objections were urged, upon the ground of their incompetency as parties in interest. A. L. Hatch is a co-plaintiff; but B. L. Hatch, having made a deed of gift to one of the plaintiffs, before suit, is not a party thereto. The court overruled the objections. The writ of error is by the defendant from judgment for the plaintiffs. 1. The defendant should have been permitted to show color of title by proving the contents of the will. Hanna v. Ren-fro, 82 Miss. 129 ; La Frombois v. Jaahson, 8 Cow. 597 ; Olapp v. Bromagham, 9 Cow. 557; Angelí on Lim. § 404, note; Gregg v. Sayre, 8 Pet. 244 ; Q-arrett v. Dabney, 27 Miss. 346 ; Hinhley v. Greene, 52 Ill. 223; Orispen . v. Hannavan, 50 Mo. 536 ; Rannels v. Rannels, 52 Mo. 108. An insufficient will is sufficient color of title, McConnell v. McConnell, 64 N. C. 342; or a deed from a mortgagee, Stevens v. Brooks, 24 Wis. 326; Griffin v. Stamper, 17 Ga. 108; or a deed from an administrator, Fagan v. Hosier, 68 Ill. 84; Brooks v. Bruyn, 85 Ill. 895. 2. The testimony of A. L. Hatch and B. L. Hatch should not have been admitted. Reinhardt v. Hvans, 48 Miss. 280 ; Jacks v. Bridewell, 51 Miss. 888. 8. The counsel reviewed the facts at length, contending that the adverse possession for a sufficient time to bar the suit was fully made out, and that the verdict was against the great preponderance of evidence. 1. Color of title cannot be predicated of the evidence offered concerning the pretended will. The authorities, with rare exception, involve the idea of documentary evidence. True, there is authority that written instruments are not essential to color of title; but it seems that the term was inaccurately used in the sense of claim of title, — a distinction perceived from the language in Bell v. Longworth, 6 Ind. 273. Strictly speaking, color of title rests upon some documentary evidence or muniment of title. We are limited in this case to documentary evidence. A void will is not color of title. Angelí on Lim. 404; La Frombois v. Jackson, 8 Cow. 589, 605; Bufour v. Camfranc, 11 Mart. 715; Frique v. Hopkins, 4 Mart. N. s. 224; Moore v. Brown, 11 How. (ü. S.) 424; 25 Ga. 178. A deed containing no description cannot be evidence of claim of title. 37 N. H. 35 ; 4 Heisk. 570. The court said, in Marsh v. Weir, 21 Texas, 97, that a conveyance which has been adjudged void gives no color of title. Bernal v. Crleim, 33 Cal. 676. 2. The marriage settlement attempted to be proved hardly merits notice. By the statute, Hutch. Code, p. 637, such agreements are void, unless made in writing. Even if it were legal and competent to make parol agreements of this character, yet by the plainest principles of evidence the testimony offered — the remark or statement of Griffith — was inadmissible to show it. 3. The testimony of A. L. Hatch was properly admitted. He testified to declarations of Griffith, pertaining to his possession of the property in controversy. It'is not a suit to establish a claim against the estate of a deceased person. It is a controversy as to the title to property, once the' estate of Sarah B. Hatch, among her heirs-at-law. We are confronted with strong and broad dicta in the case of Jades v. Bridewell, 51 Miss. 881. The disqualification by the statute is to proof by parties in interest of claims “for or against the' estate of a deceased person, which originated during the lifetime of such deceased person.” In these words is contained the limitation as to competency. First, it must be a claim against the estate of a deceased person, and, second, such as originated in the lifetime of such person. In Green v. Mizelle, ante, 220, reference is made to Jacks v. Bridewell. But in the language employed there seems a manifest purpose to evade the application of the doctrine as broadly laid down in that case. “ We waive the competency of the testimony and of the witness for the present,” said the court, “but adhere to Jacks v. Bridewell.” We submit that this adherence to a correct decision is no application or approval of its dicta. It is begging the question to say that the property sued for is a part of the estate of Richard Griffith, or that the claim originated in his lifetime. That is the initial point of controversy. 4. B. L. Hatch has no interest in this suit. Disqualification by the statute is upon the theory of interest. It is the exception to the statute abolishing the common-law disqualification for interest. It means a subsisting, actual interest, notwithstanding the decision of Reinhardt v. Evans, 48 Miss. 230, the reasoning of which is a mere quibble upon words, without any force. 5. If the court should consider the witnesses A. L. and B. L. Hatch incompetent, the verdict should nevertheless stand. It is amply and clearly sustained by the other evidence. Garrard v. State, 50 Miss. 152 ; Barringer v. Nesbit, 1 S. & M. 22; McMullen v. Mayo, 8 S. & M. 303 ; Fore v. Williams, 35 Miss. 533; Routh v. Agricultural Bank, 12 S. & M. 161.