Hauer v. Davidson

1. Tkial. Direction of verdict. Review. Where upon a trial, plaintiff introduced his evidence and rested and thereupon defendant moved to exclude the testimony and for a premptory instruction, which motion being overruled, defendant introduced his own evidence; in such case on appeal the correctness of the judgment rendered must be determined by the whole evidence without reference to the ruling on the motion to exclude. ¿. Descent and Distbibtjtion. Eushand and wife. Estate Toy curtesy. Statute. Estates by curtesy were abolished in 1880 and since that time where a wife dies intestate her lands descend to her husband and children as tenants in common and a conveyance of such lands by the husband after her death vest in the grantee only an undivided interest. 3. Tenancy in Common. Adverse possession. Cotenants. Presumption. Possession by one cotenant will be presumed not to be hostile to his cotenants unless the contrary is shown. 4. Ejectment. Title from common source. Evidence. In the action of ejectment in this case the court held that the evidence set out in its opinion, failed to show that a complete paper title was in plaintiff or that she and defendant claimed from a common source.

Appeal from the circuit court of Wilkinson county. Hon. E.. E. Jackson, Judge. Ejectment hv Mrs. M. M. Davidson against Mrs. Mamie K. Hauer. From a judgment for plaintiff, defendant appeals. ■ The facts are fully stated in the opinion of the court. In support of first assignment of error that the court below erred in admitting in evidence the deed from Ann Davis to Charlotte C. Philbrick and John Philbrick we say that proof was necessary that, Ann Davis was the heir at law of Landon Davis, in whom title vested by entry. See 2 Greenleaf on Evidence section 354, sixth edition. It is' true that this deed recites that the grantor Ann Davis and Charlotte C. Philbrick are the sole surviving heirs of Landon Davis, but this is not evidence. For if such statements are to be received as evidence, any person, by a grant of lands could create title in himself by saying that he was the heir of the person dying with title to the land. And we here call the attention of the court to plaintiff’s bill of particulars of her title, filed in this case. And to this bill of particulars plaintiff is strictly bound. Section 1827, Code 1906, which is construed in Goforth, v. Stingly Taylor Go., 79 Miss. 398. On page 401 the court says: “Plaintiff conld not travel ont of the bill of particulars they did file, etc.” Plaintiff made no claim to the land by adverse possession, and certainly had no title by documentary evidence, and defendant’s motion to exclude plaintiff’s testimony, and for judgment for defendant should have been sustained. This motion is as follows: “At the conclusion of plaintiff’s testimony, the defendant made a motion to exclude the testimony of plaintiff and for judgment for defendant, because the evidence shows that the plaintiff has no right or title to the land in question, and further because the evidence shows title by adverse possession' in D. C. Brannan, and fails to show who are the heirs of D. C. Brannan, and does not show that plaintiff is such an heir; and further because plaintiff was permitted over defendant’s objection to introduce testimony showing the location of the land in suit, and plaintiff’s right and title thereto, which parol testimony, or any parol testimony -whatever is not and was not embraced in plaintiff’s abstract of title, and defendant is entitled to a judgment. And to the overruling óf this motion defendant excepted. This motion should' have been sustained, for we submit that we have above shown that the documentary evidence of plaintiff, which is that embraced in plaintiff’s abstract of title, wholly fails to establish right of possession or title in plaintiff to the land sued for, and the parol evidence even if competent does not give title to plaintiff, which it Was error to admit. Defendant offered to prove by T. W. Cavin that the land is a well-defined ginlot. Objected to by plaintiff, objection sustained, and defendant excepted, deed from D. C. Brannan to T. B. Knight conveying his ginhouse and one acre of land on the north side of the public road, and then offered in evidence deed from T. B. Knight, conveying said land to Mamie E. Knight (Hauer), and offered to prove by T. W. Cavin that the land mentioned in said deeds could be easily ascertained. Tbis proposed evidence was objected to by plaintiff, objection sustained, and defendant excepted. Tbis was, we tbink, unquestioned error in tbe court below. Tbis land, by this testimony could have been definitely located, and tbis is all. the law demands. Tucker v. Field, 51 Miss. 191, at lower part of p. 194. And we further say, that if plaintiff had shown title in Frances Brannan, which the court below held, and further held that Frances Brannan and D. C. i Brannan, having married before 1880, when the estate of tenant by the curtesy existed under the law, and that although Frances Brannan died in 1890, that D. C. Brannan held the land by the law in force at the marriage and not under that in force at the date of Frances Brannan’s death. This we submit was error; the estate of tenant by the curtesy was abolished by the Code of 1880, section 1170, and in lieu, of this section 1271 of this Code-paragraph four gave the surviving husband a child’s part, which has since been, and is now the law. If the ruling of the court below was right, the result was that D. C. Brannan held all the wife’s land as tenant by the courtesy for life under the law prior to the Code , of 1880, and a child’s part under that Code. To say the least of it this is an extreme view, which was not and could not be the law. If it is, there are thousands of widowers in this state entitled to both estates and more husbands who will be entitled to them on the death of their wives. If that is the law, it is hard to characterize it. To us in. the present case, it is plain that D. C. Brannan inherited a child’s part of his wife’s land at her death in 1800, and defendant — appellant— acquired that part under the deeds to defendant, even if the court was right in holding that title vested in Frances Brannan. And from what we have submitted in argument, it is plain to us that the peremptory instruction given for plaintiff was error. And it was error in giving judgment for all the land sued for, the witness McNeil failing to locate the same. The parties claim through a common source, Mrs. Sarah Frances Brannon, and therefore the rule that plaintiff must show title as against the world and must depend on the strength of her own title, does not apply. Doe v. Parker, 3 S. & M. 114; Doe v. Pritchard, 11 S. & M. 327; Wolfe v. Dowell, 13 S. & M. 103; Gordon v. Sizer, 39 Miss. 805. He who has the better claim from the common source will prevail. McCready v. Landsdale, 58 Miss. 877. In part, deraignment from the government down is unnecessary where the plaintiff shows a perfect title in himself from the common source. Richards v. Lee, 91 Miss. 657. It is to be noted that the plaintiff did not demand of the defendant any bill of particulars of her title. On that feature it is to be presumed that plaintiff knew just what the claim of defendant was. Tn response to the demand of defendant for a bill of particulars, plaintiff supplied the one shown in the record, and which apprised the defendant of her claim, in full. Attention is called to the fact that the defendant made no attempt to introduce any evidence, of any nature, to show any superior title in herself, or in D. C. Brannon, her grantor. The only evidence offered by her was an attempt to show by T. W. Gavin, that the land sued for is a well-defined ginlot and two deeds of conveyance one from D. C. Brannon to T. B. Knight and the other from T. B. Knight to the defendant. The plaintiff, after introducing the record evidence, which could have begun with the conveyance into Mrs. •Sarah Frances Brannon, the common scource of title proved by Davidson and McNeil the identity of the land sued for. That this was proper, under the description contained in the deed to plaintiff, is in my opinion, unquestionable. The motion unquestionable. The motion to exclude by defendant embraced several grounds. First was the objection that no title was shown in plaintiff. Much stress is put on the fact that the deed made by Ann Davis to John and Charlotte Philbrick in 1828 recited that she, Ann Davis and the grantee, Charlotte. Philbrick, were the sole heirs of Landon Davis, and because of the fact that no proof was made that they were the only heirs, it is argued that no title was shown in the predecessors of plaintiff. Examination of the record will show that each and every conveyance connects itself with the prior ones. And -it is to be noted that this land is the identical land confirmed into Landon Davis and conveyed by Ann Davis to John and Charlotte Philbrick and from them to Woodson Wren. As said by the court in Stovall v. 'Judah, 74 Miss. 747, 754, the fact that this mortgage was recorded would point to the execution of the deed of conveyance. The second ground of the motion to exclude was that the testimony showed title by adverse possession in D. C. Brannon. I confidently submit that there is not one word in this record supporting that ground. That plaintiff is an heir of D. C. Brannon as well as an heir of Sarah Frances Brannon, her father and mother, is fully shown, but this case is not dependent on the heirship from Mr. D. C. Brannon, but is on tfie heirship from Mrs. Fannie' Brannon, his wife, and mother of the plaintiff. The case up to this point stands thus: Mrs. Fannie Brannon, wife of D. C. Brannon, and mother of the plaintiff, was the owner of the land, acquiring title m the year 1878; she is dead; her husband, father of plaintiff, is dead; on the death of Mrs. Fannie Bran-non the lands descended to her children subject to the curtesy of' her husband,. D. C. Brannon. Her husband, D. C. Brannon, as. tenant by curtesy, liad the right to the possession of the land, but this possession could not be adverse to his children. Upon his death, the title being in the three children, two conveyed their interests to the third, the plaintiff. On these facts the court properly overruled the motion to exclude. I say that D. E. Brannon was tenant by the curtesy and that while he lived he had the right to use this land, and to have it called Dub Brannon’s gin, but that immediately on his death any anc[ all rights he had, or any grantee from him, ceased and determined and the real owners were entitled to the immediate possession, and that too, whether the deeds made by him in his lifetime were correctly drawn, the lands correctly described or not. Mrs. Brannon acquired these lands in 1878, when the Code of 1871 was in force. By section 1786 of that Code, on the death of a married woman owning real estate, it was provided that nothing therein contained should deprive the husband of his right of curtesy. By section 1948, the lands descended to the children. The husband having the right to curtesy, he inherited nothing else. The law in effect at the time of the contract enters into it and forms a part of it. The state itself cannot impair the contracts so entered into, much less any parties thereto, except by consent. Lessley v. Phipps, 49 Miss. 790, 801;. Mus grove v. Railroad, 50 Miss. 683; Johnson v. Fletcher, 54 Miss. 628; Rice v. Smith, 72 Miss. 42, 46. The Code of 1880 became operative on November 1, 1880, and under section 1170 thereof dower and curtesy were abolished. This abolition, however, was prospective only. It is an established rule for the construction of statutes that a retroactive operation will not be given, unless it be the manifest intention, plainly and clearly expressed. In fact, by the Code of 1880 itself, and section 4 of the same, it is expressly provided that the repeal of any statutory provision should not affect any right then accrued. This was necessary under the Constitution of the state, and eminently proper and correct. The statute abolishing dower — and the same statute also abolished curtesy — was not retroactive. McKensie v. Donald, 61 Miss. 452; See, also, Hill v. Nash, 73 Miss. 849, 860 and Gresham v. King, 65 Miss. 387. The conveyance to Mrs. Bránnon was in 1878. It was such a contract as was contemplated by the Constitution and all the rulings of the courts. She paid her money based on what the law then said would be her rights; the rights of her husband, and the rights of her children. No subsequent legislation could change that. There can be no confusion, such as conjured by appellant here, of the husband inheriting a child’s part, under the Code of 1880, and-yet having the entire estate as tenant by curtesy under the Code of 1871. If his wife, the mother of his children, acquired or purchased the land prior to 1880, he is tenant by curtesy and nothing more. Taking the entire record, I say that it is apparent that no error occurred; that if so they were immaterial, and the same result would be reached. The plaintiff was entitled to the land, the judgment was correct and this case should be affirmed.