Torre v. Jeanin

• Decision Date: 08 May 1899
• Citation: 76 Miss. 898,25 So. 860
• Court: Mississippi Supreme Court
• Parties: JOSEPH TORRE ET AL. v. MARIE L. JEANIN ET AL

25 So. 860

76 Miss. 898

JOSEPH TORRE ET AL. v. MARIE L. JEANIN ET AL

Supreme Court of Mississippi

May 8, 1899

March 1899

FROM the circuit court of Harrison county, HON. THADDEUS A. WOOD Judge.

This case was an action of ejectment wherein Marie L. Jeanin and others, appellees, were the plaintiffs in the court below and the appellants, Joseph Torre and others, were the defendants there. The judgment in the trial court was in favor of the plaintiffs and defendants appealed to the supreme court. The facts are sufficiently stated in, or are clearly inferable from, the opinion of the court.

Affirmed.

Frank Johnson and J. I. Ford, for appellants.

1. The ruling of the circuit court in permitting the introduction of the patent to Louis Fasiar, and evidence that the plaintiffs actually claimed under one Louis Fayard, was erroneous and improper. The names are not idem sonans. The spelling is not only entirely different, but the pronunciation of the two names is widely different. One is pronounced Faziar, and the other Fiar. The rule is thus stated in the text of the American and English Encyclopedia of Law: "That absolute accuracy in spelling names is not required in legal documents or proceedings, either civil or criminal; that if the name as spelled in the document, though different from the correct spelling thereof, conveys to the ear, when pronounced according to commonly accepted methods, a sound practically identical with the sound of the correct name as commonly pronounced, the name as thus given is a sufficient designation of the individual refered to, and no advantage can be taken of the clerical error. 16 Am. & Eng. Enc. L 122. It is not a case, therefore of idem sonans, and the testimony should have been excluded.

2. The court should, in any view of this question, have submitted it to the jury to be passed upon. "The question whether or not two or more names are idem sonans may, on a plea in abatement or special demurrer, be determined by the court upon a mere comparison, where the issue is free from doubt, as if the words necessarily do or do not sound alike; but the modern and approved practice is to submit the question to the jury whenever there is an opportunity to do so, and where the correct sound appears at all doubtful or dependent upon particular circumstances." 16 Am. & Eng. Enc. L., 126; Commonwealth v. Donovan, 95 Mass. 57; Commonwealth v. Jennings, 121 Mass. 47; Commonwealth v. Warren, 143 Mass. 568; Weitzel v. State, 28 Texas App., 523; Taylor v. Commonwealth, 20 Gratt. (Va.), 828. An instruction was asked by the defendants, presenting this issue to the jury, which was refused by the court.

3. White, a witness for the plaintiff, gave his testimony on the witness stand in regard to the contents of deeds and records which were not introduced in evidence. He stated the result of his investigation of the deed books and records, and testified also what boundary lines had been recognized by the parties to the partition proceedings. All of which was objected to by the defendants. One of the important issues in the case was the actual location of lot 2, and White's statements as to the results of his examination of records, as showing the location of the land in controversy, were clearly incompetent. It was equally incompetent for him to testify in regard to what was shown by the various deeds referred to by him.

4. The plaintiffs claim title through one J. B. Jeanin, who was a subject of France, and who died in New Orleans, La., in September, 1863. Under the statute of the state in force at the time, only resident aliens residing in this state could acquire and hold real estate. Revised code 1857, § 9, art. 65, p. 320. By article 66, the lands of aliens residing in the state, after being naturalized, descended to their heirs at law (revised code 1857, § 9, art. 66, p. 320); but, if an alien died, who was a resident of the state, without being naturalized, his estate went, by escheat, to the state. Under these statutes a nonresident alien could not acquire or hold lands nor transmit lands by descent.

At common law, "when an alien, seized of real estate, dies intestate, as he has no inheritable blood, he can have no legal heirs, and so cannot transmit the estate by descent, and, as the law will not deem it to be in abeyance, except in case of absolute necessity, it vests immediately in the state, without office found." 2 Am. & Eng. Enc. Law (2d ed.), 74, and note 1. "So also alienage in any mediate ancestor will interrupt the descent between persons who are capable of taking and transmitting real estate by descent." 2 Am. & Eng. Enc. Law (2d ed.), 75, note 1.

Upon construction of the statutes cited, supra, only resident aliens were capable of acquiring property (real estate) in this state, and they had no inheritable blood until they were naturalized. In this case J. B. Jeanin could not have acquired the property, nor could he transmit it by descent. The evidence makes a prima facie case that J. B. Jeanin was a nonresident alien.

In the absence of any evidence on the subject, it cannot possibly be presumed that J. B. Jeanin was a naturalized citizen, the only evidence being that he was a subject of France. This point was made by a motion to exclude the plaintiffs' testimony, which was overruled by the court, and it was presented also by an instruction asked by the defendants, and which was refused by the court.

5. The report of the survey of the premises made under an order of court by Uriel Wright, the county surveyor, was improperly excluded by the court. The objection was that it was made without notice. But it appeared that it was made by an agreement of Bowers and White, who were at that time the attorneys for the plaintiffs. The court also refused to allow this witness to refresh his memory by referring to the original field notes made at the time of the survey. The report of the survey was not sworn to, but, when offered in evidence, the defendant's attorney proposed to have Wright make an affidavit to it.

6. The court erred in giving a peremptory instruction for the plaintiffs and in refusing the various instructions asked by the defendants. The case should have gone to the jury on the evidence. (1) The evidence of the plaintiffs in support of their title was far from clear and satisfactory. It does not appear satisfactorily from the evidence that the lot claimed by the plaintiffs is the lot occupied by the defendants. (2) The testimony of Wright and McCaughan, especially the former, shows that the land claimed by the plaintiffs is not the land claimed by the defendants.

Denny & Woods, and A. Y. Harper and W. R. Harper, for appellees.

A careful reading of the record will clearly show that the defendants in the court below had no solid foundation on which to base a defense. Defendants relied solely upon technicalities and the hope that plaintiffs would fail to make out their case. From the record it cannot be seriously or rationally contended that appellants are anything in the world but squatters and interlopers. Where plaintiffs in an action of ejectment claim title as the heirs of an ancestor, who died in possession of the land, such possession is prima facie evidence of seizin in fee, and is sufficient to enable them to recover against mere intruders or any one claiming title shown to be void. Hicks v. Steigleman, 49 Miss. 377; Kerr v. Farish, 52 Miss. 101; Lum v. Reed, 53 Miss. 73; Johnson v. Futch, 57 Miss. 73, Dingey v. Paxton, 60 Miss. 1038.

Plaintiffs proved a perfect record title from the United States government down and into themselves, and that the title of defendants was not only a sham and a fraud, but a myth as well. That there was in early days only one man who ever pretended ownership to said land was shown most clearly. It was the same man (a Frenchman) whose name was spelled differently by different people. A sister of "Fayard" also received a patent to certain lands in Harrison county, and the same mistake was made in spelling her name. The "Angeline Fasiar" patent is mentioned in Bernard v. Elder, 50 Miss, at page 341. It is of no moment that "Fayard's" name was spelled "Fasiar." He not only could have received title as "Fasiar, " but could have conveyed it by the name of "Fasiar, " or any other name, if he adopted it and wrote it. Appellees were entitled under the partition proceedings to a lot bounded on the east by a certain lot and on the west by a certain other lot--a call for natural monuments in the shape of lots--and the rule is that: "A call for natural monuments...