Hauer v. Davidson

• Decision Date: 26 March 1917
• Docket Number: 18963
• Citation: 74 So. 621,113 Miss. 696
• Court: Mississippi Supreme Court
• Parties: HAUER v. DAVIDSON

74 So. 621

113 Miss. 696

HAUER v. DAVIDSON

No. 18963

Supreme Court of Mississippi

March 26, 1917

Division A

APPEAL from the circuit court of Wilkinson county, HON. R. E JACKSON, Judge.

Ejectment by 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.

Reversed and remanded.

Bramblett & Bramblett, for appellant.

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 Co., 79 Miss. 398. On page 401 the court says "Plaintiff could not travel out 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 of 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. This proposed evidence was objected to by plaintiff, objection sustained, and defendant excepted. This was, we think, unquestioned error in the court below. This land, by this testimony could have been definitely located, and this 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. 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 1890, 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.

Ackland H. Jones, for appellee.

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. In 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. Cavin, 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 source 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 the 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 in the year 1878; she is dead; her husband, father of plaintiff, is dead; on the death of Mrs. Fannie Brannon 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, had 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 and 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...