Morris v. Henderson

Handy, J.,

delivered the opinion of the court.

This action was brought by John Henderson to a of land from the possession of the plaintiff in error. Pending the suit, Henderson died, and the cause was revived in the name of the *500 defendant in error. A verdict and judgment having been rendered for the plaintiff, the defendant moved for a new trial on various grounds; and to the overruling of that motion, he filed his bill of exceptions, and thereupon brings the case here.

Numerous errors are assigned and insisted upon, which we will proceed to consider.

The first, second, and fourth assignments of error proceed upon the ground, that after the death of John Henderson, the suit was revived at November term, 1857, in the name of the defendant in error, as executor of John Henderson, and at May term, 1859, that it was revived in his name, in his individual capacity, without any correction of the previous order of revivor, or any abatement of the suit so revived. Hence, it is insisted that the latter order was erroneous, and that, as the record stands, there are two distinct plaintiffs to the action, which renders the judgment void.

These objections appear to be not well founded in point of fact. The record shows that at November term, 1857, the cause was ordered to be revived in the name of St. John Elliott Henderson, as executor of John Henderson, and “ that scire facias should issue to that effect.” It does not appear that that writ was ever issued; and it is plain from the order, as it is entered of record, that the suit was not thereby revived, but that a scire facias was ordered tb be issued, in order that, after service of it, the suit should be revived as stated. For, if it had been actually revived by the order, there would have been no need for the scire facias, which was ordered in order to bring him in to be made a party. It, therefore, appears that, after the order was made, no step was taken to consummate it, and it was abandoned, and .afterwards, at the May term, 1859, that the suit was revived as it stands here in the name of the defendant in error.

There is, therefore, no force in these objections.

The third assignment is, that the court allowed a deed from John Black to John Henderson, for a part of the land in controversy, to go in evidence. Several objections are now urged to the admissibility of this deed, but none of these objections appear to have been specified as a ground for excluding it. It appears to be a deed purporting to be acknowledged by the grantor before a competent officer, but does not appear to have been recorded ; and the prin *501 cipal objection now urged to its competency is, that, the acknowledgment being insufficient, and it not having been recorded, there Ayas no evidence that it was signed by the grantor, or delivered to the grantee.

If it be conceded that the acknowledgment of an unrecorded deed is incompetent and insufficient evidence of its execution and delivery, — a point upon which we express no opinion, — yet the deed was competent evidence, if it was signed by the grantor, and delivered to the grantee. It was valid as to the parties to it, though it might not be so as to creditors and subsequent purchasers of the grantor. As to the delivery, the fact that it was in the possession of the devisee of the grantee, and produced by him on the trial, was sufficient presumptive evidence of delivery. And as to its being signed by the grantor, no objection appears to have been made to it on that ground. It is an objection which was required to be specifically made ; because, from its nature, the party offering the paper' might be able to obviate it by proof of the signature of the grantor; and he should be apprised of the specific objection, in order that he might have an opportunity to do so. An objection of this nature will not, therefore, be entertained in this court, unless it distinctly appears that the paper was objected to on that particular ground in the court below. Wesling v. Noonan, 31 Miss. 599 . For aught that appears, therefore, in the record, we must presume that the execution of the deed was not objected to, and hence, that it must be regarded as the deed of Black; and if so, it was competent evidence, though it was neither acknowledged nor recorded.

The fifth error assigned is, that the court permitted the plaintiff to read in evidence the second answer, setting up a claim for improvements, by ditching, clearing, &c., made on the premises by the defendant, there being another plea of the general issue filed. The purpose for which this plea was offered, and admitted by the court, appears to be, to prove possession of the premises in the defendant.

There can be no doubt but that the two answers must be regarded as distinct and substantive defences to the action. It is true, that the Statute of 1850, in relation to the forms of pleading in actions at law, requires the defence in such actions to be made by “ an answer.” But the defendant is not restricted to one answer; and even *502 if the statute could be so construed, it plainly allows the defendant to “set forth by answer as many defences as he shall have;” so that if the statute could be regarded as allowing but one answer, it expressly authorizes several and distinct defences to be set forth in it, which must have been intended to give him the same rights under his several defences, ás he had under the previous practice in pleading several distinct pleas. But the statute provides that these de-fences “ shall each he separately stated, and refer to the causes of action which they are intended to answer.” This plainly allows the defences to be set up in distinct and separate answers; and, indeed, the language of the statute, as well as the reason and convenience of the thing, would appear to require that they should be set up in that manner, in order to render each defence separate, single, and certain. The same rights and incidents must arise to the defendant from this mode of setting up his separate defences, as arose from the mode of pleading several distinct pleas, by the practice existing before the passage of the statute; and the same general rule which is applicable to distinct pleas must be applicable to separate and distinct answers under the statute.

The rule is well settled, in relation to pleas, that “where there are several distinct pleas, an allegation in one cannot be insisted upon by the adversary as an admission of a fact for a purpose distinct from the proof of the issue upon that plea; for every issue is to be distinctly tried.” 1 Stark. Ev. 337 (7th Amer. Edit. 1842); 2 Id. 20-2; Phill. Ev. (Cow. & Hill’s notes, part 1), 446, and cases there cited.

It was, therefore, error to allow the plaintiff to read as evidence to the jury, the second answer, in support of the plaintiff’s case, which it was incumbent on him to establish upon the plea of the general issue.

The force of this objection will be further considered when we come to notice the exceptions taken to the instructions of the court, in relation to the effect of this second answer as evidence for the plaintiff.

The sixth assignment is, upon the exclusion of the deed of the sheriff to Beall for the land in controversy, and the other deeds from Beall and others, under which the defendant claimed title. The force of this ground of error depends upon the validity of the sheriff’s deed.

*503 That deed was executed by the sheriff and tax-collector of Wash-j ington county, and purported to convey the land in controversy absolutely to Beall, as the purchaser at a sale, for levee taxes, made on the 6th of March, 1854; and it is admitted, that it was executed in virtue of the Act of 30th of November, 1859, which authorized an absolute deed by the sheriff and tax-collector, conveying a perfect title of all lands sold by him for levee taxes. The deed was objected to, and the objection sustained, on the ground, that the Act of 1850, authorizing it, was superseded and repealed by the Act of 1st of March, 1854, which was passed and went into operation before the sale to Beall was made. And the question raised is, whether the Act of 1850 is repealed by that of 1854, so as to render the deed in question invalid.

As before stated, the deed authorized by the former act was a conveyance absolutely of a perfect title to the land sold. The Act of 1854 provides, in substance, that whenever any land should thereafter be sold for levee taxes, the tax-collector selling the same shall give to the purchaser a certificate of such sale, specifying the land sold, &c., and the amount paid by the purchaser at the sale, setting forth the name of the owner, if known, or the name to whom it was assessed; which certificate shall be acknowledged by him and filed in the office of the probate clerk for and during the period allowed for redemption, which is two years ; the redemption to be made by paying the redemption-money to the clerk. But after the lapse of two years from such sale, if the land should not be redeemed, that the purchaser should withdraw the certificate and file his bill in chancery against the owner and other parties interested, setting forth his purchase and claim, and the lapse of the two years without redemption, and praying a foreclosure; and if, on the return of process duly served or notice given, the parties should not appear and pay the money due, and subsequently accrued taxes and all costs, &c., the owner should be decreed to be foreclosed of all right or claim, and the title vested absolutely in the purchaser at the tax sale.

This statute does not expressly repeal that of 1850; but we consider its provisions so repugnant to that act as necessarily to operate as a repeal of it. By the Act of 1850, the title acquired by the purchaser was a legal title by conveyance absolute on its face, *504 but subject, perhaps, to the right of redemption by the owner. If such right existed under the general statute, for it does not appear to be given by the act, after the lapse of the period allowed for redemption, it ceased, and the title of the purchaser became perfect, according to the terms of the act, by force of the deed authorized by the act. Instead of a deed of this character, the Act of 1854 requires, that in such sales thereafter made, the tax-collector should give the purchaser a certificate of his purchase, having merely the effect of a mortgage, requiring to be foreclosed by suit in chancery as such, and giving to the owner the right, even after the lapse of the period allowed for redemption, and after the commencement of the suit for foreclosure, to come forward and redeem the land. Under the one statute, the purchaser obtained the legal title, defea-sible pei'haps by redemption; under the other, he acquired a mere mortgage interest, with the right of redemption to the owner for an indefinite period, which could only be foreclosed by suit in chancery. It is manifest that the rights of purchasers under the provisions of the two statutes are essentially different; and it must be taken that the legislature intended to establish the mode of proceeding for securing the interests of purchasers provided by the Act of 1854, as a substitute for that authorized by the Act of 1850. The Act of 1854 requires, that the mode of proceeding with reference to the rights of the purchaser therein prescribed shall he complied with; and unless 'this was done, it is clear that the purchaser at a tax sale, made after that act took effect, acquired no title or right under his purchase. In prescribing a mode of proceeding for protecting the rights of the purchaser, inconsistent with that authorized by the previous statute, the latter statute necessarily abrogated the mode of proceeding, and the rights of purchasers established by the former. Such, we think, was the legal effect, as it was doubtless the intention, of the Act of 1854; and it follows that the deed in question was executed without authority of law, and it was properly excluded as evidence on the trial.

The seventh error assigned is, the first instruction given by the court, in behalf of the plaintiff, as follows : “ That the will of John Henderson vests the legal title to the property in controversy in the plaintiff, and is sufficient to enable him to sustain this suit, if they *505 believe, from the evidence, that John Henderson, at the time of his death, was the legal owner of the land.”

The first objection taken to this instruction is, that it appeared, by the declaration and the date of the probate of the will, that the defendant had been in adverse possession of the land for three years before the will was probated ; and that the testator, being disseised of the premises at the time of his death, his devise of the same was void. But this position was not correct. It is settled that the rules in relation to champerty and maintenance do not apply to persons standing in the relation of father and son, husband and wife, brothers, &c., and that a conveyance or devise of lands held adversely, or in litigation, made by such parties, is not void. 4 Kent’s Comm. 449, note b, 7th edit.

Another objection urged against the instruction is, that by the terms of the will, the land in controversy cannot be held to he devised to the plaintiff.

The will first enumerates his wife and -children, who are to be the objects of his bounty. He then proceeds to state that his “ property consists principally in landed estate at and near Pass Christian, and in Attala and Leake counties, fifteen slaves, personal property about his 'household at Pass Christian, and a considerable interest in claims and debts due,” which are not specified. He disposes of his personal and real estate at Pass Christian, his lands in Leake and Attala counties, his slaves, his stock in the Grand Junction Canal Company, certain Cuban bonds, and provides, that certain specified debts shall be paid by means of certain claims due him, and of which he would leave a list; and the will concludes in these words : — “ All else of my property and effects, I will and bequeath all to my son JSUiott, for his and his mother’s exclusive use.”

It is insisted that the words “ all else of my property and effects,” were intended to apply to all the property and effects which he had previously enumerated, and which he had not disposed of, and cannot embrace other property not enumerated. But this construction is manifestly not tenable. It proceeds upon the idea that, in the mention which he made of his property in the commencement of the will, he enumerated all his property which he wished to make disposition of. But this view is clearly not sustained by the contents *506 of the will; for he states that his estate consists principally of the property and effects which he specifies, thereby clearly showing that he did not undertake to give a full enumeration of his property; and, for aught that appears, he makes disposition in subsequent parts of the will of all the property and effects which he had enumerated, and even more, for he does not enumerate the canal stock and the large amount of Cuban bonds, his miscellaneous and law libraries, which he subsequently disposes of.

But the language of the residuary clause is very general and comprehensive. It is sufficiently broad to embrace both the real and personal estate of which the testator died seised and possessed, whether enumerated or not in the preceding parts of the will, and which he had not thereby disposed of. Doe v. Langlands, 14 East. 370; Doe v. Morgan, 6 Barn, & Cres. 512. This plain, legal force of the words must prevail, unless there was something in the will showing an intention to restrict them to some particular part of his property and effects. And we are unable to perceive anything in the will indicating such an intention.

It is further insisted, that no title passed to the plaintiff by the residuary clause, because, although personalty not disposed- of, will pass to the residuary legatee, yet that the rule is different in regard to real estate, which, when not disposed of, does not pass under the residuary clause, but goes to the heir at law. This position is attempted to be sustained by reference to a loose and inaccurate quotation in the ease of Vick's executor v. McDaniel, 3 How. 341 , “ that real estate not disposed of, or ill disposed of, goes to the heir,” and does not pass under the residuary clause to the devisee. It is not correct, in the broad terms in which it is stated, that real estate not disposed of in a will, will not pass to a residuary devisee. There is, it is true, a difference between personalty and real estate, in the operation of the residuary clause of a will. In a will of personalty, a general residuary bequest carries not only everything not disposed of, but everything that is ill disposed of, and everything that in the event turns out not to be disposed of, whether by reason of a partial revocation of the will, of a lapse, or by a gift being void, or not sufficiently disposed of, or given on a contingency which does not happen. 2 Madd. Ch. 94. In a will of real estate the rule is somewhat different. There, if real estate "be specifically de *507 vised, and the devise does not take effect, either from, the in competency of the devisee to take, from a partial revocation of the will, a lapse by the death of the devisee in the lifetime of the testator, or from the contingency not happening upon which, as a condition precedent the devise was made, or was to take effect, it descends to the heir, as property undisposed of by the will,” and does not go to the residuary devisee under the general residuary clause. James v. James, 4 Paige, 117 . But if the real estate be not attempted to be disposed of specifically by the will, it will pass to the general residuary devisee, unless restricted by other clauses of the will; for, not being disposed of, nor attempted to be disposed of, it must be taken to have been intended to be embraced in the positive disposition of -the residuary clause. 1 Jarman on Wills, 588-590 (1st Amer. edit.). In such a case, it would be doing violence to the express disposition of the will to say, that, as to such real estate, the testator intended to die intestate.

The next error insisted upon, is the third and fourth instructions given at the instance of the plaintiff, as follows:—

3. That going on the land in controversy by the defendant, either by himself, or his agents, or servants, and erecting substantial improvements thereon, worth ¡$1500, and having such possession anterior to the commencement of this suit, are such facts indicating the defendant’s possession at the time the suit was commenced, as the jury may act upon in making up their verdict, and will warrant the jury in so finding the fact to be, unless the defendant has shown by the proof in the case that the possession previously held by him was abandoned.

4. That the plea of defendant is an admission of fact on the record, which he is estopped from denying; but while it is to be taken as absolutely true as to him, it is not as to' the adverse party, unless sustained by proof.

It appears that the only matter in controversy on the trial, was the plaintiff’s right to recover the land, as presented by the plea of the general issue : there being no evidence offered by either party in relation to the claim for rents and profits set up in the declaration, and the set-off for improvements set up in the second plea or answer. If any evidence had been offered by either party upon that point, it might have been proper for the jury to consider the posi *508 tion in which the defendant placed himself by his second plea, in determining the question of possession of the premises involved in the first plea; for it would then have been a part of the evidence in the cause, to which the jury could not shut their eyes in the trial of both issues. But the case appears to have turned entirely on the first plea, under which it was incumbent on the plaintiff to show, by sufficient legal evidence, satisfactory to the minds of the jury, that the defendant was in possession of the premises at the time of the institution of the suit. Such being the real issue on trial, we have above seen, that it was not competent to read the second plea of the defendant as evidence of his possession, much less could it be considered as an admission of the fact, which estopped him from denying it. For the subject-matter of each plea is a distinct and separate ground of defence, which cannot be used in evidence when the case turns upon an issue presented by another plea. Yet it is true, that whatever is_ sufficiently admitted -in one plea, is to be taken st-s true upon the trial of the issue under that plea. The fourth instruction is, therefore, erroneous. The third instruction appears to be given with reference to the rule of evidence stated in the third. It assumes the facts of the defendant going on the land by liis agents or servants, and erecting substantial improvements thereon, previous to the commencement of the suit; treating these facts as proved or admitted, when there was no evidence clearly establishing them, except the statements of the second plea. If the facts had been proved by competent evidence to the satisfaction of the jury, the conclusion of the instruction would have been correct; that is to say, the facts of possession and making improvements, prior to the institution of the suit, would have warranted the jury in inferring, that the possession was continued up to the time the suit was brought, unless the defendant showed that he had then abandoned the possession. But these facts should have been submitted to the judgment of the jury, and not treated by the instruction as proved; nor should they have been instructed that they were admitted by the defendant’s plea.

The court, therefore, erred in giving these instructions, and also in refusing the second instruction of the defendant, which was the reverse of the rule stated in the plaintiff’s fourth instruction.

The only other error complained of, which- we consider it neces *509 sary to notice, is the general rule stated by the court in modifying the defendant’s first instruction, in relation to proof of the defendant’s possession. That modification referred to the rules stated by the court in its second, third, and fifth instructions in behalf of the plaintiff.

We consider the instruction, as modified, correct, except so far as, by reference to the instructions given for the plaintiff, it treated the second plea as evidence of possession, and assumed the facts, that the defendant had gone into possession prior to the commencement of the suit, and made improvements on the land, as proved.

For the error above stated, the judgment is reversed, and the case remanded for a new trial.