Woodbeck & Matter v. Wilders
Before: Baldwin
Synopsis
In trespass for driving cattle upon land, alleged in the complaint to be “in the quiet and peaceable possession ” of plaintiffs, “ claiming the same as in fee simple/' plaintiffs proved their possession and actual occupancy. Defendants then offered deeds from I. to M., and from M. to plaintiffs, and from M. to defendants, of an undivided half interest in the land, to show that plaintiffs and defendants were tenants in common, deriving title from the same source, and hence that the action did not lie. Plaintiffs objected on the ground that they relied solely on possession. Objection sustained, and deeds ruled out: Held, that the ruling was right, there having been no deraignment of title from its source, nor any proof to connect the holding of the parties with the deeds, or to show that possession was taken or claimed under them.
Where plaintiff and defendant hold under a common source of title, it is not necessary, upon a question of title, for either to go beyond that source; but the mere production of a deed from a stranger to plaintiff, without other proof, is not sufficient to show either that such stranger had title, or that his grantee entered under or holds in subordination to the deed.
An unexecuted verbal agreement between joint proprietors of land for the division thereof according to certain boundaries is not binding. Until executed, either party may rescind the agreement.
In trespass for driving cattle upon plaintiff’s land, and by means thereof trampling on, consuming and destroying the grass and herbage, and tearing up, subverting and spoiling the soil: Held, that plaintiff could ask a witness: “ What would have been the injury to the land by turning in two hundred head of cattle on the twelfth, thirteenth and fourteenth of April, and letting them remain in six or seven days 1” and “ What would it be worth to turn in two hundred or three hundred cattle, and pasture them for six or seven days in the field spoken of V’ that the questions as put and answered amounted to little, if anything, more than an estimate of the value of the pasturage or grass.
Baldwin, J. delivered the opinion of the Court Cope, J. concurring.
We find no error in the record. The principal errors assigned are, the charge of the Court and its rulings, and its refusal to instruct in respect to the effect of certain deeds from Murphy to the plaintiffs and to the defendants respectively, of an undivided interest in the land sued for. The plaintiffs offered evidence—which was not disputed—tending to show the possession and actual occupancy of the tract in controversy, by the plaintiffs. The defendants sought to introduce these deeds for the purpose of showing that the plaintiffs and defendants were tenants in common of these premises, and therefore, that the plaintiffs could not maintain this action. The error assigned in connection with this subject cannot be maintained, for the reason that no deraignment of title was made from its source, nor any proof to connect the holding of the parties with these deeds, or to show that possession was taken or claimed [137]under them. It is true, that where the plaintiff.and defendant hold under a common source of title, it is not necessary, upon a question of title, for either to go beyond that source; but the mere production of a deed from a stranger is not sufficient to show either that he had title, or that the grantee entered under or holds in subordination to the deed. The deed may have been taken merely to quiet a better title or to fortify a possession already taken under a precedent and better claim. Prima facie the deed, in the absence of explanation or other proof, was not relevant, or¡ at least, no proffer of such proof having been made, we can perceive no error in its exclusion to the injury of the defendants.
2. The Court did not err in charging that a mere unexecuted oral agreement for the division of‘the land according to certain boundaries was not binding on the plaintiffs.
3. Nor did it err in admitting testimony as to the extent of the injury of the defendant’s cattle to the land or grass; in the manner in which the question was put and answered, this proof amounts to little, if anything, more than an estimate of the value of the pasturage or of the grass.
It is not necessary to notice the other points.
Judgment affirmed.
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