Southmayd v. Henley
Synopsis
Ejectment on Prior Possession.—One who has built a fence of any kind around land, which, together with natural barriers, is sufficient to turn cattle, and has used it for pasturage, can maintain ejectment to recover it from a mere intruder, who enters upon it without right or title.
Evidence oe Outstanding Title in Ejectment. — A mere intruder, who enters upon a portion of a tract of land previously inclosed by another, cannot, in ejectment brought by the prior possessor, introduce evidence of title outstanding in a third person, either to defeat a recovery or to reduce the damages.
Idem.—In ejectment by a prior possessor for a part only of an inclosed traót of land, the defendant, if a mere intruder, cannot introduce evidence of title outstanding in a third person to a portion of the land inclosed, other than the demanded premises.
By the Court: The Court erred in refusing to give the instruction asked by the plaintiff denominated in the record “ second.” The acts of Southmayd mentioned in that instruction, if done by him, would give him such a possession as would avail against a mere intruder upon the premises. There was error, too, in allowing the defendant to introduce in evidence the patent to Chapman and the deed of the latter to himself of a tract of land, which we understand to be without the lines of the tract of land sued for. That patent and deed could afford no sort of pretense for the defendant to appropriate the remainder of the land within the general inclosure. ÍTor can we see why the defendant was allowed tb. show that third persons held title to other portions of land within the general inclosure of the plaintiff. If the plaintiff had shown (and the evidence upon his part certainly tended to show) that he had the prior actual possession of the premises, and that the defendant entered upon that possession being him[105]self a mere intruder and without title or right of entry, the latter should not, under the settled rule long established in this State, be allowed to protect himself from a recovery, or to diminish the damages which might otherwise be recovered against him by showing the true title to be outstanding in a Ihird person. But here the outstanding title did not even purport to be a title to the land sued for, but only a title to other lands which were found within the same general inclosure with the lands in controversy. The only tendency that such evidence could reasonably be expected to have, would be to confuse the minds of the jury by distracting their attention to matters wholly foreign to the issue before them.
We are unable, too, to see how the mere proof of the existence of those outstanding titles would tend to show “ a lack of that exclusiveness of possession in plaintiff to entitle him to recover,” as maintained by the learned Judge of the Court below, in denying the plaintiff’s motion for a new trial.
Judgment and order reversed, and cause remanded for a new trial.
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