Archer v. Helm

• Decision Date: 27 March 1893
• Citation: 70 Miss. 874,12 So. 702
• Court: Mississippi Supreme Court
• Parties: GEORGE F. ARCHER v. G. M. HELM

12 So. 702

70 Miss. 874

GEORGE F. ARCHER v. G. M. HELM

Supreme Court of Mississippi

March 27, 1893

March 1893

FROM the circuit court of Washington county, HON. R. W WILLIAMSON, Judge.

The facts are stated in the opinion. For a report of this case on a former appeal, when only a question of law was decided, see Archer v. Helm, 69 Miss. 730.

Reversed and remanded.

Campbell & Starling, for appellants.

1. The court erred in admitting the testimony of Fontaine that he was employed by appellant, Archer, in conjunction with Toombs and others, to make the survey in 1888. This testimony was incompetent and misleading. It did not go to show that Archer employed the surveyor to locate the line between Helm and himself. The purpose of the survey, as Fontaine said, was to find the true lines and corners around the lands of these several parties. Helm was not a party to that employment, and the testimony did not tend to show any act or conduct on the part of Archer inconsistent with the existence of an agreement between Helm and himself locating the line in controversy.

2. The court erred in excluding the testimony of Toombs as to what Archer said with reference to the line between Helm and himself just before the employment of Fontaine to make the survey. If the fact that Archer employed Fontaine to make the survey was competent evidence, as tending to prove conduct on Archer's part inconsistent with the existence of the agreement settling the line, certainly his declarations, made at the time of the negotiation, to the effect that this line had already been located by agreement, was competent to limit and explain the effect of his conduct. An admission is to be taken as an entirety, with the qualifications which limit modify or destroy its effect. 1 Greenleaf's Ev., § 201; Insurance Co. v. Newton, 22 Wall., 32.

3. The testimony to the effect that Helm, as soon as he learned the error in the location of the lines, bought a strip of land along his western boundary, we admit, is not very definite yet we think it was as competent to prove an act on the part of Helm consistent with the fact that the line in controversy had been fixed by agreement, as Archer's act in employing Fontaine to make the survey was inconsistent therewith.

4. The court erred in admitting the testimony of J. H. Moore, to the effect that he had agreed with Archer that, in case he lost this suit, he would not hold Archer to the line fixed between them. In view of the instruction given for plaintiff, this testimony, without limitation, was calculated to prejudice the defendant's cause.

5. The court erred in admitting the testimony of Archer's tenants to the effect that they had cultivated land west of the agreed line. Archer had testified that no one, with his knowledge or consent, had done this, and it was not proved that he consented to such cultivation, or had knowledge of it.

6. The court erred in refusing to permit Archer to testify in rebuttal. No evidence as to the settlement of the line was offered by Helm until all the witnesses for defendant had testified thereto. In his testimony, Helm spoke of a conversation with Archer in regard to two dividing lines, as to which Archer had not been interrogated. The court held that the defendant had the burden of proof as to the agreement, and yet denied him the right of closing the evidence on that point.

7. The court erred in instructing the jury for plaintiff, that the burden of proof was on defendant as to the location of the line in question. The affirmative of the issue and the burden of proof was on the plaintiff from the beginning to the end. Only the weight of evidence shifted, and not the burden of proof. 1 Greenleaf's Ev., § 74, note a. There are no special pleas allowable in ejectment. Reliance on the agreement settling the disputed boundary was not in the nature of confession and avoidance, but of a denial of the allegation of the declaration that the land was located as claimed.

The instruction is also erroneous in telling the jury that the burden was on defendant to prove that the line was permanently located by the agreement. From the language used in the instruction, the jury was apt to infer that it was necessary that there should be embraced in the agreement the word "permanently." We admit that the line must have, been intended as the permanent dividing line; but when defendant proved that it was agreed on, the presumption was that it was permanent, and the weight of evidence shifted to plaintiff to meet this presumption.

8. Plaintiff's instruction is also erroneous in telling the jury to find the rental value of the land from and including the year 1886 to the time of trial. According to plaintiff's own testimony, he agreed that Archer might occupy to the Gordon line until the true line should be located. If the line was found to be at another place, Archer, under these circumstances, was not a trespasser. Besides, Archer took possession in the latter part of 1886, and the jury was instructed to allow for that year. See 9 Wend., 65.

Another view is that the instruction is erroneous because it excludes the idea that plaintiff was estopped by his knowledge of defendants' acts in improving the property with reference to the line. 49 Mo. 98.

9. The verdict is manifestly wrong. This court will reverse the judgment, and grant a new trial, where there are facts in evidence about which there is no dispute, which clearly show that the verdict is wrong, even though there be direct conflict in the testimony on the main point in issue. 37 Miss. 477.

Yerger & Percy, for appellee.

1. Appellant abandoned the claim that the land was located within the calls of his deed, and introduced testimony to show that there was uncertainty about the true line, which rendered the making of the parol agreement fixing it admissible. At any rate, the question as to whether the land was situated within the calls of his deed was fairly submitted to the jury, and the evidence in support of the verdict is overwhelming.

2. The court properly admitted the testimony of Fontaine as to how he came to make the survey of lines in the township where the land is situated. It was proper for plaintiff to show that the witness made the survey with no bias in his favor, and that he was employed by defendant. The employment of the surveyor subsequent to the time of the alleged parol agreement, was an important circumstance to go to the jury.

3. It was competent to prove that the witness, Moore, would gain a certain amount of land if the Gordon line should be established. According to appellant's theory, some novel doctrine of sanctity is to protect the interest of this witness from the vulgar gaze, and he is to be permitted to masquerade as an unbiased witness when he had a direct interest in the result of the suit.

4. There was no error in admitting testimony that defendant's tenants occupied land west of the agreed line. It was for the jury to say, under the evidence, what knowledge the defendant had as to this.

5. The court did not err in excluding the testimony of the witness, Toombs, as to the alleged reasons that actuated Archer in the employment of Fontaine to survey the township lines. The fact that Archer did not join in the employment was competent, but the reasons that he may have assigned for not doing so were entirely irrelevant, and not admissible under any principle. It was mere hearsay. If it had been attempted simply to prove that Archer had for two years been claiming that the line had been agreed upon, the incompetency of the testimony would have been palpable. It cannot be smuggled in as an attache of the fact that Archer did not employ Fontaine. The reason does not strengthen the fact. The fact does not make the reason evidence.

6. The court properly refused to allow defendant to again testify after plaintiff's testimony was closed. When on the stand, he was asked about certain matters, which he flatly denied, and the parties were clearly at variance before the jury. Nothing prompted this effort to re-introduce defendant except the "last tag" principle.

7. The court will notice, from the similarity of the instructions given for plaintiff and defendant, respectively, that opposing counsel entertained substantially the same views as to the law of the case. The serious objections now urged to plaintiff's instructions have their origin largely in the untoward verdict of the jury.

It was proper to hold the defendant for rents. He did not claim that he was in possession of the land under Helm. He not only claimed to be the absolute owner, under his deed, up to the Gordon line, but believed his land extended to the O'Hea line. He agreed, according to his evidence, to assert his claim only up to the Gordon line, and up to that line he held possession as owner, under his deed, openly and adversely to the whole world, and to Helm especially. As licensee, adverse possession could confer no title. 13 Am. & Eng. Enc. L., 547. The fact that each party believed he was in possession of his own land, and claimed title thereto, entitled the successful litigant to rents, and the unsuccessful one to the value of improvements.

7. It is not a valid objection to plaintiff's instruction that it imposed upon defendant the burden of proving that the dividing line should be permanently located. Counsel especially except to the using of the word "permanently." This is verbal quibbling. The burden of proof is imposed upon the party who alleges the existence of a fact necessary in the prosecution or defense of an action to establish it. 2 Am. & Eng. Enc. L., 649.

The word "permanently," to the use of which counsel so strenuously objects, is of the essence of the word "establish," used in his own instructions. The...