Murf v. Maupin

• Decision Date: 02 April 1917
• Docket Number: 19005
• Citation: 113 Miss. 670,74 So. 614
• Court: Mississippi Supreme Court
• Parties: MURF v. MAUPIN

74 So. 614

113 Miss. 670

MURF v. MAUPIN

No. 19005

Supreme Court of Mississippi

April 2, 1917

Division B

APPEAL from the circuit court of Clay county, HON. T. B. CARROLL Judge.

Suit by R. L. Maupin against S. N. Murf. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and remanded.

Kimbrough & Valentine, for appellant.

We maintain that the court erred in refusing to permit appellant to introduce into the evidence the title deeds of McCord and Weatherby to S. N. Murf, S. N. Murf to Mrs. Ida Howard and Mrs. Ida Howard to R. L. Maupin. We recognize the well settled principle of law that title deeds may not be introduced in evidence in an action of unlawful entry and detainer for the purpose of proving title -- the action being merely possessory, but we insist that the principle is equally as well settled that title deeds may be introduced in evidence in actions of unlawful entry and detainer where the purpose is to show location, boundaries, right of possession and character and extent of possession obtained.

In Rabe v. Fyler, 10 S. & M. 440, a leading case on this question the court says: "Inasmuch as the right of possession was one of the points in controversy the deed was properly admitted in evidence to enable the jury to determine that right. The deed is not the foundation of the action but is the mere evidence of the right to possession. One of the issues submitted was whether the plaintiff had the right of possession. The deed was proper in order for the jury to determine that right." For authority on this question the following authorities are cited: Spears v. McKay, 49 So. 554; Paden v. Gibbs, 40 So. 871, 35 So. 827, 10 S. & M. 170; Armour Pkg. Co. v. Howe, 62 Kan. 487; Wiedeman v. Taylor, 63 Kan. 884; Clarke v. Hutton, 28 Texas, 123; Davis v. Drummond, 67 So. 99; Beck v. Glenn, 69 Ala. 121; Poulan v. Sellers, 20 Ga. 228; McDonald v. Stiles, 7 Okla. 327; Roberts v. McEwen, 81 Ill.App. 413; McGee v. Grady (Tenn.), 12 Lea, 89; Corbitt v. Nutt (Va.), 18 Gratt. 624; Hayes v. Altizer, 24 W.Va. 505; Allison v. Casey, 4 Baxt. (Tenn.), 587; Wilson v. Campbell, 121 Am. State Rep. 406-409 and extended note; 19 Cyc. 1165-(c) and notes.

In unlawful entry and detainer actions the right of possession is involved. Walton v. Wall, 70 So. 549; Clarke v. Bourgeois, 8 So. (Miss.) 187; Rage v. Fyler, 10 S. & M. 440.

The testimony of the appellee taken in its most favorable light shows that he had but a scrambling possession to the land in controversy. This will not maintain the action of unlawful entry and detainer; citing the following authorities: Blake v. McCray, 4 So. 339; Banjamin v. Reach, 65 Miss. 347, and 443; Butler's Case, 49 Cal. 75; Taylor's Case, 56 Ala. 188, 32 L. R. A. (N. S.) 54; 19 Cyc. 1115, 1128, 1132; Prior's Case, 65 Mo. 56; Johnson v. West, 41 Ark. 545; Keene v. Schwizler, 70 Mo. 409.

The court refused to permit the defendant to introduce before the jury evidence of the survey of the land in controversy and the map of the surveyor showing the exact location. This ruling of the court was contrary to all authority. The authorities hold that location may be shown by surveys. Paden v. Gibbs, 40 So. 871; Perry N. S. Co. v. Griffin, 49 So. 554.

The plaintiff in an action of unlawful entry and detainer must show by a preponderance of evidence that he had at and prior to the institution of the suit peacable and exclusive possession. This the appellee failed to do in this case. 19 Cyc. 1128 and notes; Taylor Case, 46 So. 50-136; Seals Case, 31 So. 707; Boggan Case, 52 So. 705; Owen v. Monroe County Alliance, 27 So. 383; O'Donohue v. Holmes, 18 So. (Ala.), 263; Adams v. Helbring, 107 Cal. 298; Stile v. Homer, 21 Conn. 507; Fitzgerald v. Quinn, 165 Ill. 354; Armstrong v. Hendrix, 67 Mo. 542; Funkhauser v. Colley, 67 N. J. 132; Tischler v. Knick, 57 N.Y.S. 3; Clay v. Sloan, 104 Tenn. 401.

The authorities all hold that before an unlawful entry and detainer action will lie it must be shown that the prior possession by the plaintiff was peaceable and exclusive. In Bowers v. Cherokee Bob, 45 Cal. 495, 504, the court says: "The terms 'peaceable possession' means a possession which is acquiesced in by all others including rival claimants." In Otten's Lessees v. Lowery, 15 Ga. 336, the court says: "The words 'peaceable possession' have a meaning very similar to, if not the same as, the words 'quiet enjoyment.'" It cannot be stated with any degree of accuracy that the appellee ever had any quiet enjoyment of the disputed premises prior to the commencement of this action.

Roberds and Beckett, for appellee.

Appellant's contentions on this appeal are five: That the case should be reversed. 1. Because of the refusal of the court to allow the introduction of the title deeds; 2. Because of the alleged refusal of the court to allow the introduction of the map, which it is alleged, defendant wishes to introduce; 3. Because it is alleged that plaintiff's possession of the land was not peaceable, but was only a scrambling possession; 4. Because defendant Murf was not in possession of the land in his own right, but as subtenant from Staggs (no point was made at the trial or in this appeal that Staggs ought to have been joined as a party defendant. That question was never raised; 5. Because it was not shown that at the time of the trial of the case, Mrs. Wier, a coplaintiff, had any right to the possession of the land in controversy.

The question of the introduction of the deeds. In an action of forcible entry and detainer, title considered as a defense is always immaterial. The plaintiff need not establish any title on his part and the defendant will not be permitted to prove as a defense that he was the owner of the property and, therefore, was and is entitled to be in possession thereof. Wilson v. Campbell, 121 Am. St. Rep. 366. See the voluminous note at page 405.

So it is said in 19 Cyc. 1164 "evidence of title either in plaintiff or defendant is not admissible." Young v. Barr, 69 Miss. 879; Parker v. Eason, 68 Miss. 290; Clark v. Bourgeois, 86 Miss. 1.

In a suit for injury to land, proof that plaintiff claimed to own it and had rented it to one who was in possession is sufficient proof of title. Gilchrist-Forney Co. v. Parker, 69 So. 290.

In the case of Rabe v. Fyler, 10 S. & M. 440, on which appellant seems chiefly to rely as a leading case, was a case where a landlord conveyed land to plaintiff. A tenant was on the property at the time. Plaintiff brought unlawful entry and detainer against the tenant. Of course, he had to rely on his deed for the very right to bring the suit.

So, in all of the other cases, cited by appellant, it will be observed that there was some special circumstances rendering title deeds admissible. Such circumstances are exceptional. It is not attempted in this case to show any special justification for the admission of title deeds.

The refusal of the court to allow the map to be introduced is urged as error citing, Paden v. Gibbs, 40 So. 87, 88 Miss. 274; Perry N. S. Cl. v. Griffin, 49 So. 554.

The rule decided in these cases was that where the plaintiff describes the land in his affidavit by a certain description, a surveyor would be allowed to show that he had measured out the land according to that description and that it was not the land of which defendant was in possession. There was no such effort in this case. It is undisputed that the pleadings accurately described the land in controversy. The survey and map was made as described in the deeds. It would have simply placed before the jury a highly colored and persuasive sort of map, which might have influenced them in some illegitimate way.

But, as a matter of fact, the map was never offered to be introduced in evidence. It may be that learned council was discouraged from offering it by the fact that the court limited the surveyor's testimony within certain reasonable bounds. But, in fact, the defendant never offered the map in evidence and the court never ruled on the question of its admissability. Nor did defendant take any exception to the action of the court in ruling out part of the surveyor's testimony.

The erection of a fence around a plot of ground is sufficient, and almost conclusive, evidence of possession. Allen v. Tobias, 70 Ill. 169; Campbell v. Coonradt, 22 Kan. 704. Of course, actual residence or personal presence is not necessary in order to maintain possession. See note 121 Am. St. Rep. at page 386 and 387.

If real property is in possession of a lessee who leaves it unoccupied at the close of his term, his landlord must be regarded as having resumed such possession. Portio v. Murray, 12 P. 425; Shelby v. Houston, 38 Cal. 410; Wilson v. Shackelford, 41 Cal. 630; Wilson v. Graham, 60 Mo.App. 323.

And during the time required for procuring another tenant or other taking of personal possession by the landlord, he is entitled to the same protection and remedy against persons making forcible entry as if he were personally on the premises. Anderson v. Mills, 40 Ark. 192; McCormack v. McDowell, 20 Ken. Rep. 854, 90 S.W. 541; Anderson v. R. R. Co. (Mo.) 107 S.W. 456; Stevenson v. Morrissey, 22 Ill.App. 258; Wilson v. Campbell, 75 Kan. 159.

It is manifest that justice was done in the decision of this case, and the grounds of appeal urged by appellant in order to get a new trial, are highly technical excuses, totally disregarding the merits of the case. Under the rules of the supreme court a case will not be reversed for error in the admission or exclusion of evidence or in the giving or refusing of instructions, unless it affirmatively appear from the record as a whole that injustice was done, and in this case the contrary appears.

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