Haréis, J.,
delivered the opinion of the court.
The defendants in error commenced their action of ejectment in the Circuit Court to recover the land in controversy.
By agreement of counsel it is admitted, that defendants in error are the heirs at law of Catharine Rogers by Elijah Rogers, except Martha Kyle, who is the daughter of the said Catharine by her last husband, Harvey Kyle.
The defendants in error claim to derive their title from the said Catharine Rogers, as her heirs at law, as against this defendant by estoppel.
Eor this purpose they show that at the time of her marriage with Harvey Kyle, and up to the conveyance by said Kyle to Perrett, under whom plaintiff in error holds possession, the said Catharine had been in possession of the premises, under a deed from Nancy H. King, dated the 2d September, 1843. That Harvey Kyle and wife (the said Catharine) attempted to convey the property in dispute to said Perrett, on the 18 th January, 1848 ; but owing to defective execution the deed was void as to his wife, and Perrett became the purchaser, and took possession under Harvey Kyle alone. That Harvey- Kyle having no other interest in the land except as tenant by the curtesy, on his death Perrett became tenant at sufferance to these defendants in error, the heirs of Catharine, who died before Harvey Kyle, her husband.
The controlling point in the ease is, whether the plaintiff in error is estopped from asserting that the defendants had no title to the land sued for.
[390]*390That the plaintiff in error is so estopped, we think is clear, upon two grounds appearing in this record.
The first is, that he and those under whom he claims went into the possession of the premises in dispute under purchase from Harvey Kyle. That the deed from Harvey Kyle and wife, under which he claims, being void as to the wife, conveyed only Kyle’s life-estate as tenant by the curtesy of his wife (Catharine), which vested in him upon her death leaving issue; and that the purchasers from Harvey Kyle at his death became tenants at sufferance of the defendants in error; and cannot, therefore, during their permissive possession, either acquire an independant title that can avail them in this action, or dispute the title of Catharine Kyle, the ancestor of defendants in error, from whom they hold their possession as tenants.
To this point the case of Day et al. v. Cochran, 24 Miss. 261, is full and conclusive. It is there said, on general .principles, independent of our act in relation to alienations of the wife’s lands by the husband, and of lands held “ by the curtesy,” that it is well settled that where a party has gone into possession of lands under a lawful title, and after his right has expired, holds over, his possession, thus continued, will not be regarded as adverse to the party entitled to the reversion. For being once in by a lawful title, the law, which presumes no wrong in any man, will suppose him to continue upon a title equally good. Citing Black Com. 149, 150 ; Varrick v. Jackson, 2 Wend. 166 ; Jackson v. Cairns, 20 John. R. 301; Doe v. Hall, 2 Dow. and Ry. 38.” It is then further said that the purchasers from the husbands, who occupied precisely the same relations to the estate, as the purchasers in this case on this point, “became tenants at sufferance” on the death of the husbands. “ Their possession was not tortious as regarded the true owners of the reversion; and was, consequently, not adverse or hostile to their right.
“ If, upon the general law, there could be any doubt that the possession in this case was not adverse, our statutes dispel it. See Hutch. Code, p. 615, § 6, and p. 616, § 10.”
Upon this ground, if it were even admitted that the plaintiffs in error have acquired a perfect title since the commencement of their tenancy, in opposition to the title of Catharine Kyle or Catharine [391]*391Rogers, it would avail them nothing in this action. They must yield the possession they have acquired under these parties, and those under whom they claim, before they can be heard to assert it.
The second ground upon which we think it is equally clear, that the plaintiffs in error are estopped from denying the title of defendants in error in this action, is, that this record shows that both parties claim to derive title from Nancy H. King, the same common source ; and it is not competent for either, to dispute that title without showing a better title in themselves.
It is admitted, as a general rule, that it is competent for a defendant in ejectment to protect himself in his possession by showing an outstanding title in another, upon the principle that the plaintiff in ejectment must recover upon the strength of his own title. This rule is as ancient as the action itself, and has its origin in the just presumption that the party in possession is either the true owner, or holds under the true owner, until the contrary is made to appear.
But the exception is almost'as ancient as the rule, that when the plaintiff in ejectment shows that both parties derive their title from the same common source, and that he has the older and better title from that source, it is not competent for the defendant, after such acknowledgment of the title of the common source, to protect himself in possession by proving an outstanding title in a third person, toith which he shows no connection. For, in such case, the law will presume from such acknowledgment on his part, that such title is vested in the common source, and enures to the benefit and support of the plaintiff’s title.
The authorities to this point are numerous, and almost unbroken. Nor are the cases cited from 11 S. & M. 336; 13 lb. 103; 26 Miss. R. 298, in conflict with this1 principle of estoppel. Adams on Ejectment, 33, and notes by Tillinghast, 33, 34, and numerous cases cited. Doe ex dem. v. Saul, 1 Jones Law R. (N. C.) 70; Johnson v. Watts, 1 Ib. 228; Doe ex dem. Thomas v. Kelly, 1 Ib. 374; Paul v. Ward, 4 Dev. R. (N. C.) 247; Love v. Gates, 4 Dev. & Batt. R. (N. C.) 363; Norwood v. Morrow, 4 Ib. 442; Ives v. Sawyer, lb. 51; Murphy v. Barnett, 1 Car. Law Repos. 105; Burgess v. Wilson, 2 Dev. L. R. 306; Lucas v. Coll, 1 Dev. & Batt. 34; Foster v. Dugan, 8 Ohio R. 106; 5 lb. 197; Cooklys v. [392]*392Perry, 3 Ib. (New Series) 344; Murphy v. Barrett, 2 Murphy R. (N. C.) 251.
The same doctrine is held in New York and other States.
To obviate the effect of this principle under the proof in the record, the plaintiff in error relies upon the fact, that the land in dispute was patented to one Howard, and conveyed by him to' Elijah Rogers, the first husband of the said Catharine, and ancestor of the defendants in error, except the said Martha Kyle. They then attempt to deduce title to themselves from the said Elijah Rogers; first, by a mortgage executed by him to the Union Rank, in which the said Catharine joined, dated 31st May, 1839, which was assigned to the said Nancy King, the common source, 1st Oct. 1847, under whom plaintiff in error claims by assignment, since the commencement of this action. And second, by virtue of proceedings in bankruptcy against the said Rogers,'and.
Free access — add to your briefcase to read the full text and ask questions with AI
Haréis, J.,
delivered the opinion of the court.
The defendants in error commenced their action of ejectment in the Circuit Court to recover the land in controversy.
By agreement of counsel it is admitted, that defendants in error are the heirs at law of Catharine Rogers by Elijah Rogers, except Martha Kyle, who is the daughter of the said Catharine by her last husband, Harvey Kyle.
The defendants in error claim to derive their title from the said Catharine Rogers, as her heirs at law, as against this defendant by estoppel.
Eor this purpose they show that at the time of her marriage with Harvey Kyle, and up to the conveyance by said Kyle to Perrett, under whom plaintiff in error holds possession, the said Catharine had been in possession of the premises, under a deed from Nancy H. King, dated the 2d September, 1843. That Harvey Kyle and wife (the said Catharine) attempted to convey the property in dispute to said Perrett, on the 18 th January, 1848 ; but owing to defective execution the deed was void as to his wife, and Perrett became the purchaser, and took possession under Harvey Kyle alone. That Harvey- Kyle having no other interest in the land except as tenant by the curtesy, on his death Perrett became tenant at sufferance to these defendants in error, the heirs of Catharine, who died before Harvey Kyle, her husband.
The controlling point in the ease is, whether the plaintiff in error is estopped from asserting that the defendants had no title to the land sued for.
[390]*390That the plaintiff in error is so estopped, we think is clear, upon two grounds appearing in this record.
The first is, that he and those under whom he claims went into the possession of the premises in dispute under purchase from Harvey Kyle. That the deed from Harvey Kyle and wife, under which he claims, being void as to the wife, conveyed only Kyle’s life-estate as tenant by the curtesy of his wife (Catharine), which vested in him upon her death leaving issue; and that the purchasers from Harvey Kyle at his death became tenants at sufferance of the defendants in error; and cannot, therefore, during their permissive possession, either acquire an independant title that can avail them in this action, or dispute the title of Catharine Kyle, the ancestor of defendants in error, from whom they hold their possession as tenants.
To this point the case of Day et al. v. Cochran, 24 Miss. 261, is full and conclusive. It is there said, on general .principles, independent of our act in relation to alienations of the wife’s lands by the husband, and of lands held “ by the curtesy,” that it is well settled that where a party has gone into possession of lands under a lawful title, and after his right has expired, holds over, his possession, thus continued, will not be regarded as adverse to the party entitled to the reversion. For being once in by a lawful title, the law, which presumes no wrong in any man, will suppose him to continue upon a title equally good. Citing Black Com. 149, 150 ; Varrick v. Jackson, 2 Wend. 166 ; Jackson v. Cairns, 20 John. R. 301; Doe v. Hall, 2 Dow. and Ry. 38.” It is then further said that the purchasers from the husbands, who occupied precisely the same relations to the estate, as the purchasers in this case on this point, “became tenants at sufferance” on the death of the husbands. “ Their possession was not tortious as regarded the true owners of the reversion; and was, consequently, not adverse or hostile to their right.
“ If, upon the general law, there could be any doubt that the possession in this case was not adverse, our statutes dispel it. See Hutch. Code, p. 615, § 6, and p. 616, § 10.”
Upon this ground, if it were even admitted that the plaintiffs in error have acquired a perfect title since the commencement of their tenancy, in opposition to the title of Catharine Kyle or Catharine [391]*391Rogers, it would avail them nothing in this action. They must yield the possession they have acquired under these parties, and those under whom they claim, before they can be heard to assert it.
The second ground upon which we think it is equally clear, that the plaintiffs in error are estopped from denying the title of defendants in error in this action, is, that this record shows that both parties claim to derive title from Nancy H. King, the same common source ; and it is not competent for either, to dispute that title without showing a better title in themselves.
It is admitted, as a general rule, that it is competent for a defendant in ejectment to protect himself in his possession by showing an outstanding title in another, upon the principle that the plaintiff in ejectment must recover upon the strength of his own title. This rule is as ancient as the action itself, and has its origin in the just presumption that the party in possession is either the true owner, or holds under the true owner, until the contrary is made to appear.
But the exception is almost'as ancient as the rule, that when the plaintiff in ejectment shows that both parties derive their title from the same common source, and that he has the older and better title from that source, it is not competent for the defendant, after such acknowledgment of the title of the common source, to protect himself in possession by proving an outstanding title in a third person, toith which he shows no connection. For, in such case, the law will presume from such acknowledgment on his part, that such title is vested in the common source, and enures to the benefit and support of the plaintiff’s title.
The authorities to this point are numerous, and almost unbroken. Nor are the cases cited from 11 S. & M. 336; 13 lb. 103; 26 Miss. R. 298, in conflict with this1 principle of estoppel. Adams on Ejectment, 33, and notes by Tillinghast, 33, 34, and numerous cases cited. Doe ex dem. v. Saul, 1 Jones Law R. (N. C.) 70; Johnson v. Watts, 1 Ib. 228; Doe ex dem. Thomas v. Kelly, 1 Ib. 374; Paul v. Ward, 4 Dev. R. (N. C.) 247; Love v. Gates, 4 Dev. & Batt. R. (N. C.) 363; Norwood v. Morrow, 4 Ib. 442; Ives v. Sawyer, lb. 51; Murphy v. Barnett, 1 Car. Law Repos. 105; Burgess v. Wilson, 2 Dev. L. R. 306; Lucas v. Coll, 1 Dev. & Batt. 34; Foster v. Dugan, 8 Ohio R. 106; 5 lb. 197; Cooklys v. [392]*392Perry, 3 Ib. (New Series) 344; Murphy v. Barrett, 2 Murphy R. (N. C.) 251.
The same doctrine is held in New York and other States.
To obviate the effect of this principle under the proof in the record, the plaintiff in error relies upon the fact, that the land in dispute was patented to one Howard, and conveyed by him to' Elijah Rogers, the first husband of the said Catharine, and ancestor of the defendants in error, except the said Martha Kyle. They then attempt to deduce title to themselves from the said Elijah Rogers; first, by a mortgage executed by him to the Union Rank, in which the said Catharine joined, dated 31st May, 1839, which was assigned to the said Nancy King, the common source, 1st Oct. 1847, under whom plaintiff in error claims by assignment, since the commencement of this action. And second, by virtue of proceedings in bankruptcy against the said Rogers,'and. a sale by the assignee, and purchase by Adams, under whom defendant holds. Said sale and purchase having been made also since the commencement of this suit.
Independent of other objections, needless now to be considered, it is sufficient to say, in relation to both of these sources of title, that they cannot avail the plaintiff in error here, because neither of said titles is capable of enforcement, on account of lapse of time.
The possession of defendants in error, up to the acquisition of these titles, at least, must be deemed to be the possession of the heirs at law of Catharine Rogers, which has been continuous and uninterrupted since 2d September, 1843. This possession has been adverse to the title of Elijah Rogers, and all holding under him. It is shown by the record to have commenced in his lifetime, and has continued for á period far beyond that prescribed by the statutes of this State, either to bar the action of ejectment, or to vest an absolute title with such possession. It is not, therefore, a present subsisting operative title, but in legal presumption has become extinguished. Jackson ex dem. Klock v. Hudson, 3 Johns. R. 375; Jackson ex dem. Dunbar et al. v. Todd, 6 John. R. 257; Greenleaf's Lessee v. Birth, 6 Peters, 302; Peck v. Carmichael, 9 Yerger R. 325.
That Catharine Rogers, the wife of the said Elijah, by joining [393]*393him in tbe conveyance of his estate to the Union Bank, and relinquishing her right of dower, cannot be farther affected than to operate a divestiture of her contingent interest therein, — we think is the safe rule to be deduced from the authorities on this point, cited in the briefs of counsel. In such case, she is neither bound by the covenants in the deed, nor estopped beyond her interest, at the time of conveyance or relinquishment.
Note, — It appears from the report of the ease of The Agricultural Bank of Miss. v. Bice et dl. 4 How. U. S. R. 225, that the deed referred to in the ease of Bay v. Cochran, 24 Miss. R. 261, as having been defectively executed by the wives of the grantors, was of this character. It purported to be a conveyance in fee simple, and was signed and sealed, and regularly acknowledged, by both husbands and wives; but in the premises it recited that it was an indenture made “ between Wm. M. Phipps, in right of his mfe Martha, and William R. Haile, in right of his wife Mary, and D. H. Gibson, in right of his wife Sarah,” and the grantees ,named in it; and no other mention was made in the deed of the wives, and for this reason it was decided by the Supreme Court of the United States that the deed was inoperative as to the femes covert, and only conveyed the life estate of the husbands.
We think there was no error in admitting the deed from Nancy King to Catharine Rogers. The statute does not seem to contemplate the recording the impression of a public seal.
Nor do we think the court erred in permitting the copy of the title-bond, from Adams to the defendant, to be read under the circumstances in proof. It could not have prejudiced the rights or interests of the defendant below, who must be presumed to have had the original in court, and might have produced it, if he desired its use, instead of the copy which he himself had furnished.
Let the judgment be affirmed.