Gunter v. Viverett

Counsel

A.B. Amis, Jr., of Newton, for appellants. There is no proof of possession on the part of any person, as to the land involved in this suit, except as to the defendants, and that is a legal conclusion drawn from the fact that the defendants filed the plea of "Not Guilty" which under the provisions of Section 1436, Code of 1930, admits such possession by said defendants. True it is that the appellees in their declaration charged that their ancestor died siezed and possessed of said lands, but there was no proof of such fact, nor was there proof of the fact of possession by any person other than of the defendants. Where plaintiff seeks to recover on a record or paper title, he must show a regular chain of title from the government or from some grantor in possession, and this is especially necessary where neither plaintiff nor his predecessors in title were ever in possession. But it is sufficient either to deraign title from the government or to trace title to a party in possession; it was not necessary to do both. Where plaintiff's title does not reach back to the sovereignty of the soil, at least one of the grantors in the chain of title must be shown to have been in possession of the premises at or near the time his deed was executed. Hence if neither plaintiff's immediate grantor nor any of those through whom his title is derived ever had any title or possession, he cannot recover. 19 C.J. 1053, par. 33. Defects in plaintiff's title constitute a good defense in an action against one in peaceable possession, although without color of title. 19 C.J. 1075, par. 63. In the case at bar the defendants were certainly in possession under color of title, but even had they not so been in possession under color of title then the plaintiffs could not recover under the foregoing rule which seems to us to be the proper and correct rule. The possession of the locus in quo by the ancestor of the plaintiffs under claim of title is prima facie evidence of a seizen in fee, and is sufficient to enable them to recover against a mere intruder or one claiming under a title shown to be void. Dingey v. Paxton, 60 Miss. 1038 . Nor is it necessary for the defendant to make full proof of the validity of his title. His possession under his deed from a stranger, if it be bona fide and not collusive, is sufficient to rebut the proof of title from a common source made out in the first instance by the plaintiff, and to cast upon the plaintiff the burden of proving his title by regular deraignment, or of showing that the title set up by the defendant is invalid. If he fails to do this, he neither shows that he is entitled to the possession, nor that the defendant wrongfully is in possession. Hughes v. Wilkinson, 28 Miss. 600 . See, also, Griffin v. Sheffield, 38 Miss. 359 ; Nixon v. Porter, 38 Miss. 401 ; Cunningham v. Dean, 33 Miss. 46 . Instruction number 3 is defective in that it states that the mere fact that Bill Viverett had a deed to the property gives him legal title to the land in question, and gives him the right to possession of said land, and then says that such deed raises a presumption in favor of the said Bill Viverett, thereby ignoring the question of possession or right of possession by other parties under a similar right or claim of title. W.T. Weir, of Philadelphia, for appellees. As to the proof of possession, the record shows a deed to Bill Viverett in 1911 and the sworn declaration alleges that in 1936 Van Gunter unlawfully deprived the heirs of the possession thereof. It further alleges that the said Bill Viverett died siezed and possessed of said lands and according to this record the heirs were not divested of possession until 1936. The instructions complained of placed the issues squarely before the jury.