Alexander v. Polk

39 Miss. 737

• Court: Mississippi Supreme Court
• Decided: October 15, 1861
• Status: Published

Opinion

Harris, J.,

delivered the opinion of the court:

The first error assigned is, that the court erred in ruling out the deed from Bogers to Hamilton. 1st, it was properly ruled out, as a deed, because there was no seal or scroll attached to it; and, 2d, it was properly rejected, as a contract, because there was no proof of its execution.

The second ground of error relied on is, that the court erred in overruling the motion to exclude the deed from sheriff Patterson to Galloway.

This motion in the court lelow was founded on the assumption that Patterson was not legally sheriff, and his acts as such officer were void, because the oath of office was administered to him by the judge of probates of Bolivar county, who was not authorized to administer the oath.

By the Act of 1822, under the old constitution, “ the presiding justice of the County Court” was required to indorse on the sheriff’s bond “his approbation of the sureties therein named, and a certificate that he had administered to the sheriff the oath of office,” &c.

By the Act of 28th June, 1822, Poindexter’s Code, p. 71, the Legislature, under the provisions of the constitution of 1817, established the “ Gounty Courts” as inferior courts, making the judge of prolates in each county “ the presiding justice” of the County Court for that county, and providing for the appointment of two associate justices.

By the Act of 26th November, 1821, the Legislature organized the Orphans’ Court, under the constitution of 1817, and provided for the appointment of a “judge of probate,” “with full jurisdiction of all testamentary and other matters pertaining to an Orphans’ Court or Court of Probate in their respective counties.”

No oath and no additional qualification was prescribed, by the Act of 28th June, 1822, establishing the County Court, for the judge of probate, in order to constitute him “the presiding justice of the County Courtbut, by virtue of his office as probate judge, he was constituted, under the Act, presiding justice of the County Court. 'When, therefore, by the provisions of the Act of 1822, (Poindexter’s Code, p. 249,) it was made his duty, as “presiding justice of the County Court," “ to administer to the sheriff the oath of office,” no new jurisdiction was thereby conferred upon the' County Court, but a special, limited authority was conferred upon an individual, who, by virtue of his office of probate judge, exercised the duties of “ presiding justice of the County Court,” and who was properly and accurately designated by either name. His act in approving the bond and administering the oath was not a judicial act, pertaining to the jurisdiction of either the County Court or the Probate Court, but the act of an individual vested with this special authority because of the convenience and permanence of the designation.

If, during the continuance of the County Court under the old constitution, the same individual, holding the office of probate judge, had approved a sheriff’s bond, and administered the oath and made certificate thereof, as “judge of prolate," it would scarcely have been contended that the act was not performed by the “ presiding justice of the County Court,” and was therefore void, because it was done by the individual designated by the statute, as well known to the law by the one name as the other, and always identical. The distinction is between judicial acts, performed as a court in regular session, and ministerial acts, performed by an individual under a special limited authority.

It is urged, however, that, by the new constitution, the County Court was abolished, and the power of the judge of probates, to approve the bond and administer the oath, as well as to make certificate thereof, under the Act of 1822, was repealed.

The new constitution (sec. 4 of the “ Schedule”) provides that “ all laws now in force in this State, not repugnant to this constitution, shall continue to operate, until they shall expire by their own limitation, or be altered or repealed by the Legislature.” Hutch. Code, p. 51.

The abolition of the County Court in no manner affected the certainty of the individual, the permanence of the designation, or the duty of administering the oath in question. The judge of probate still existed, the same individual to whom the Act requiring the administration of the oath was mandatory, and the provisions of the law in this respect were not repugnant to the constitution, and were not therefore repealed.

That this was the intention of the framers of the constitution, as well as the cotemporaneous construction placed upon its action, is made apparent by the action of the Legislature at its session in 1836, (Hutch. Code, p. 450,) and the practice prevailing ever since.

This Act is an amendment of the Act of June 15th, 1822, respecting the appointment and duties of sheriffs. It is the only Act, relating to the oath and bond of the sheriff, touching this question which was ever passed by the Legislature, under the constitution of 1833, until the adoption of the late Code. It does not repeal the former Act. It makes it the duty of the “ probate judge” to approve the bond; changes the place of filing and recording the bond from the County Court clerk’s office to the Probate Court clerk’s office; nowhere requires any “indorsement” on the bond directly, but, referring to the Act of ’22, to which it is an amendment, says, “ and for the approval and indorsement of each bond the judge shall be entitled to receive one dollar,” &c., thereby affording the strongest implication that the “ indorsement ” intended is “ the certificate that he has administered the oath,” &c., as well as his approval of the bond, both of which are required to be indorsed by him on the bond by the Act to which this Act is an amendment.

It is, again, insisted' that the deed from sheriff Patterson to Galloway should have been excluded, on the ground that, prior to the ’ issuance of the execution under which the sheriff sold the land in question, another execution on the same judgment had been levied on a number of slaves sufficient to satisfy it, which levy was enjoined and the negroes taken out of the hands of the sheriff" and placed in the hands of a receiver in chancery. It is urged that in law this was a satisfaction of the judgment, and rendered all the proceedings subsequent thereto void.

It is unnecessary to discuss this point at length here, as it was not made in the court below, and could not therefore avail the plaintiff in error here, even if it were tenable. It may be remarked, however, that under the facts in this record, if the point were regularly before us, it would not change the result; for, under the decisions of this court, notwithstanding, the well-settled rule that a levy on sufficient personal property is prima facie,, in presumption of law, a satisfaction of the execution, yet it is equally well settled that it is always competent to show that there has been no actual satisfaction. Banks v. Evans, 10 S. & M. 35, and Smith v. Walker, 10 S. & M. 584. There are only two modes in which such satisfaction could arise by a levy: first, by a sale and actual payment; and, second, by the misconduct of the plaintiff in execution, or the sheriff as his agent, -while holding the property by virtue of the execution, whereby the property levied on or a sufficiency to satisfy the execution became lost to the defendant. See also Walker v. McDowell, 4 S. & M. 135.

In this case the record shows no sale of the negroes levied on, but that they were legally taken out of the possession of the sheriff by an injunction, and placed in the custody of the law, by its receiver in chancery, whether at the suit of the defendant in execution himself or some third party does not appear. It is therefore abundantly shown that no satisfaction was ever had from this levy, as the whole record of this judgment and all the proceedings on it are before us and no venditioni exponas appears, or other process, authorizing the sheriff again to take the negroes into his possession. Other views equally conclusive on this point might be relied on, were it before us for decision.

It is also insisted that the execution under which sale was made was void, and consequently the proceedings under it were void, because, at the time of its issuance, another execution, predicated on the same judgment, was in progress of being made effectual; and for this the case of McGehee v. Handley et al., 5 How. 629, is cited. This was a case of a levy, and valuation, under the valuation'law, and a second levy, before the expiration of the twelve months provided as a stay, by the Act. The court, in deciding that this second levy was illegal, cite some general principles as of common law origin, without undertaking to hold that, under our statute, (Hutch. Code, p. 899,) authorizing the issuance of a second execution where the first is not returned and executed, the issuance of a second execution under the circumstances presented in this ease is void against an innocent purchaser, without notice of the first levy; no such question was before it. This point, however, like the other, was not made in the court below, and could not, therefore, even if well taken, be ground of reversal here.

The only remaining assignments relate to the instructions, and the refusal to grant a new trial; and in neither respect are the assignments well taken.

The case of Sessions et al. v. Reynolds, 7 S. & M. 161, is conclusive of the correctness of the first instruction asked by the plaintiff below and given by the court. That instruction substantially directed the jury that, if the plaintiff in ejectment showed in himself a perfect title to the land in controversy, the jury should find a verdict in his favor, “ unless the plaintiff in ejectment had knowledge that the land, or a considerable portion thereof, was in the possession and actual occupancy of the defendant at the time of his purchase.”

It is insisted that this charge was erroneous, first, because “ knowledge of an actual adverse possession on the part of a vendor is not necessary to make a sale champertous.” The case of Ellis v. Doe ex dem. Turner, 11 S. & M. 422, is relied on by counsel for the plaintiff in error in support of this position. An examination of that case will show that this point did not occur, and was neither discussed nor decided there. The general principle of the common law — that a party out of possession of real estate, which is held adversely by another, under a title, though it be imperfect, cannot sell, so as to pass a good title to his vendee — is held in this case to be in force in this State; but there is nothing in the case inconsistent, with the decision of the same distinguished j urist in the previous case of Sessions et al. v. Reynolds, 7 S. & M. 161. In that case the question arose directly. In discussing the reason of the rule at common law just stated, as existing in this State, and after stating that we have no such statute as that of the 32d Henry 8, c. 9, which prohibited the sale or purchase of land unless the vendor had received the profits thereof for one year next preceding the sale, the court proceeds to show that, in order to avoid the sale made by a vendor out of possession on that account, the common law offence of champerty Inust be complete; for it is because of the offence that the sale is void; “and if there be no offence,” says the court, “the sale is valid.” If the parties act innocently in consequence of an entire ignorance of the adverse possession, then there could be no offence — no champerty. “To constitute champerty it is necessary to prove something more than that ■part of the land was claimed by another. The purchaser should have some knowledge of the adverse claim.”

It is insisted, second, that this instruction was erroneous because of the uncertainty of the language — "or a considerable portion thereof” — used in the instruction. The instruction, in .this respect, asserted that the plaintiff was entitled to recover upon the hypothesis stated — “ unless he had knowledge that the land in controversy, or a considerable portion thereof, was in the possession and actual occupancy'of the defendant at the time of plaintiff’s purchase.” What is here meant by a “considerable portion” of the land, if not sufficiently clear, is fully explained in the proviso to the second instruction given for defendant below, where it is said that a claim, under a deed constituting color of title, extends to the whole land embraced in the deed, and beyond actual occupancy: provided that the portion occupied be an important quantity of the land, and not an inconsiderable part accidentally occupied.”

The reason why lands adversely held cannot be sold by the real owner while he is out of possession by the modern doctrine, originates in the general rule of law forbidding the assignment of a chose in action, or a mere right of action.

The possession which is relied on to defeat a conveyance by the real owner must be adverse; that is, it must be openly and notoriously in defiance of the actual title, and such as converts the estate into a mere right of entry or action; to effect which, nothing short of ouster or disseisin will serve. Zellers, lessee, v. Eckert, 4 How. U. S. R. 289.

The term “ adverse possession" designates a possession in opposition to the true title and real owner, and it implies that it commenced in wrong — by ouster or disseisin — and is maintained against right. The law, on the contrary, presumes that every possession is rightful and consistent with, not in opposition ox “ adverse" to, title and ownership. A party, therefore, who relies upon “ adverse possession," in order to rebut this presumption of possession consistent with the title of the real owner, must prove his possession to be “adversé’ to the title set up; Jackson v. Sharp, 9 Johns. 163; Ld. Raym. 329; that is, he must show the actual knowledge of the real owner that he claims in opposition to, and defiance of, his title, or he must show such an occupancy and user, so open and notorious, and inconsistent with, as well as injurious to, the rights of the true owner, that the law will authorize, from such facts, the presumption of such knowledge by the true owner.

It is not the mere occupancy or possession which must be known to the true owner, to prejudice his rights; but its “adverse" character. Where, therefore, “knoiuledge" is a matter of presumption,, to be inferred, from the character of the possession, the quantity held becomes material. If the whole tract in controversy is cleared and occupied by the party claiming to hold adversely, the presumption is violent that the real owner has “knowledge" of the “adverse” and defiant character of the claim; but where, on a boundary line between the real owner and the adverse claimant, the possession has been of a small quantity — a very narrow strip, as well attributable to accident as design — a jury would scarcely be warranted in presuming, from such evidence, that the true owner had knowledge of the “ adverse” character of such possession.

In this view the instruction was properly given, and, with the other instructions before them, could not have been misunderstood by or misled the jury.

Judgment affirmed.