Richards v. Lee

• Decision Date: 10 February 1908
• Citation: 91 Miss. 657,45 So. 570
• Court: Mississippi Supreme Court
• Parties: SYLVIA RICHARDS v. FRANK M. LEE

45 So. 570

91 Miss. 657

SYLVIA RICHARDS v. FRANK M. LEE

Supreme Court of Mississippi

February 10, 1908

October 1907

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

Lee appellee, was plaintiff in the court below; Mrs. Richards appellant, was defendant there. From a judgment in plaintiff's favor, predicated of a peremptory instruction, the defendant appealed to the supreme court.

Plaintiff sued defendant in ejectment; defendant pleaded not guilty and demanded a bill of particulars of plaintiff's title to the land in question. Plaintiff complied with the demand and himself demanded a bill of particulars of defendant's claims of title. Defendant failed to comply with plaintiff's demand, and after the trial had been entered upon, for the first time, made application to be permitted to do so. Her application, upon objection by plaintiff on the ground that it came too late, was denied by the circuit court.

On the trial plaintiff introduced evidence showing a valid title, deraigned from a person (a common source) under whom defendant was shown to claim the lands; and, offered in evidence a conveyance under a decree of the chancery court of the county in a cause wherein appellant, defendant, was a party, and also a judgment of the circuit court of the county against defendant, in ejectment, for the same lands of date of August, 1903, each divesting defendant of title to the land and investing it in appellee's grantor.

Plaintiff having rested, defendant sought to introduce evidence of her adverse possession of the land for more than ten years continuously, next before suit was begun, but the court below, on the objection of plaintiff, declined to permit her to do so because of her failure to render a bill of particulars of title in the cause before the trial.

Code 1906, § 1827, is as follows:

"After issue joined in ejectment, either party may demand, in writing, of the other a bill of particulars of his claim or title to the premises in question, which bill shall include a short abstract of such documentary evidences of title as the party may intend to give in evidence on the trial; and a clear and succinct statement of the substance of any and all lost or destroyed documents the contents of which he may expect to prove; and if title be claimed by inheritance, or if claimed on any fact which rests in parol, the facts shall be stated. . . . And such bill of particulars shall be delivered to or filed with the clerk in thirty days after the same shall be demanded, or within such further time as the court or judge, on cause shown, may grant, and in default thereof, evidence of such title shall not be given on the trial; but the court or judge may on cause shown allow either party to serve an amended bill of particulars; and in all cases, the evidence of title shall be confined to the matters contained in the bill of particulars."

Affirmed.

Cassedy & Cassedy, for appellant.

When the plaintiff rested his case, the court below should have sustained defendant's motion to exclude the evidence and instruct the jury to find for defendant; because plaintiff had failed to show deraignment of title from the United States government. It is the undisputed requirement of law that a plaintiff must recover on the strength of his own title and not on the weakness of his adversary's. McRaven v. McGuire, 9 Smed. & M., 34; Doe v. Prichard, 11 Smed. & M., 327; Wolfe v. Dowell, 1 Smed. & M., 105; Cunningham v. Davis, 33 Miss. 46.

The court below erred in refusing to allow appellant to show title by adverse possession. The court proceeded upon the theory that it was obligatory upon appellant to file a bill of particulars in response to the demand therefor made by the plaintiff; and as she failed in this, no evidence of her title was admissible; but the only matter necessary to be in a bill of particulars of title is documentary evidence intended to be offered on the trial, and it was accordingly not necessary for appellant to give notice of parol evidence showing ten years' adverse possession. Code 1906, § 1827.

If we should however be mistaken as to the necessity of rendering a bill of particulars of this parol evidence, we yet say that the court below erred in not permitting the bill of particulars to be filed and oral evidence thereunder introduced, on the hearing of the cause. The purpose of all trials is to reach the merits. The court below was authorized to allow amendments in pleadings and proceedings and should have done so, should have brought the real merits up for decision. The rights of litigants should not be lost by mere mistake of judgment or neglect of parties, if the attention of the trial court be called to the same before verdict and judgment. Code 1906, § 775.

E. J. Simmons, for appellee.

Plaintiff was entitled to judgment in the court below; although he did not deraign title from the United States government, he deraigned it from a source common to both parties. 15 Cyc., 41.

Not only did plaintiff carry back his title to a common source but, to reach this common source, he carried the chain back through a warranty deed wherein the defendant was grantor. There was thus no necessity for showing a paper title from the government. 15 Cyc., 47; McReady v. Lansdale, 58 Miss. 877; Gillum v. Case, 67 Miss. 588; 7 So. 551; Johnson v. Futch, 57 Miss. 73; Dingley v. Paxton, 60 Miss. 1048; Long v. Stanley, 79 Miss. 301; Morgan v. Hazlehurst Lodge, 53 Miss. 665; Griffin v. Sheffield, 38 Miss. 359; Smith v. Doe, 26...