
    James M. Ellis vs. John Doe, on demise of James M. Turner.
    It is a principle of the common law, in force in this state, 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.
    It was therefore held error not to so instruct the jury on the trial of an action of ejectment, wherein it was in proof that both parties claimed from the same source, but the defendant under a junior title to that of the plaintiff’s vendor; the plaintiff had never been in possession, and his title was acquired while the defendant was in possession; the deed to the plaintiff’s vendor was defectively acknowledged, and it did not appear that the defendant had notice of the title of the plaintiff’s vendor.
    In error from the circuit court of Lawrence county; Hon. Thomas A. Willis, judge.
    John Doe, on the demise of James M. Turner, brought his action of ejectment in March, 1846, for a lot in the town of Monticello, to which James M. Ellis was duly made defendant. On the trial, the plaintiff read a deed for the premises in controversy, from Pleasant Harris to Jeptha S. Collins, dated 4th September, 1836. It was read from the record book of the Probate Court. This purported to be acknowledged, on the 11th September, 1836, before and certified by Jeptha S. Collins, with relinquishment of dower from Harris’s wife, and certificate of acknowledgment thereof also by J. S. Collins. He then read a deed from J. S. Collins and M. A. Collins his wife, to James M. Turner, lessor of plaintiff, from the record book of the probate court, dated 26th January, 1846, acknowledged 3d February, 1846, before the chancellor.
    The defendant’s counsel objected to the deed from P. Harris to J. S. Collins, going to the jury as evidence, stating that the said J. S. Collins, grantee, and the J. S. Collins, who took the acknowledgment, and certified the same, were the same person; this was overruled by the court. The plaintiff proved the locus in quo to have been in the possession of the defendant for two or three years last past, and also to be in his possesion, at that time.
    On the part of the defendant, Joseph Naylons proved, that J. S. Collins never lived on the lot, and never had any other ownership, than to make a contract with a carpenter to build a house thereon; but the house was never built, or any thing further done.
    Ellis then read a deed from Pleasant Harris to Andrew J. Harris, dated 22d November, 1838, duly acknowledged the same day, and the release of dower, by Abby Harris his wife, of the same date. This deed was certified and recorded.
    He then read the deed from Andrew J. Harris to defendant, J. M. Ellis, dated 24th September, 1840, duly acknowledged and certified; and proved by A. Smith, that defendant, Ellis, had been in possession of the lot for three years prior to the trial, ' and that when defendant purchased of Harris, there was a tenant on the lot, one Dr. Bush, who, after the purchase, paid rents to Ellis; and that Ellis exercised acts of ownership, by himself or tenants, ever since the date- of the deed from A. J. Harris to him.
    Edward L. Bowen proved, that in the last of 1842, or first of 1843, defendant, Ellis, moved into and took possession of the premises in controversy, and had continued to reside thereon and in possession thereof up to the time of trial.
    After the evidence on both sides was closed, the defendant moved the court to rule out the deed from Pleasant Harris to Jeptha S. Collins, on the ground that he was the same J. S. Collins who certified the acknowledgment of the deed to himself, and then offered Joseph Naylons, a witness sworn in the case, to prove that fact. The court overruled the motion, and refused to permit the defendant to introduce that evidence. Exceptions were sealed thereto.
    The following recital appears in the record immediately after the verdict of the jury and the judgment of the court thereon.
    “Be it remembered, that on the trial of this cause, and before the jury retired from their box to consider of their verdict, the defendant, by his counsel, moved the court to instruct the jury in the words following, to wit:
    
      “ 1. The court is requested to instruct the jury, that if they believe, from the testimony, that Ellis was in possession of the lot in question, claiming the same under claim and color of title at the time that Turner purchased from Collins, they must find for the defendant.
    
      “2. That buying and selling of lands out of the possession of the vendor, and held adversely, is buying and selling a pretended title.
    “ 3. Adverse possession need not be under full and perfect right; it is only necessary that it should be under claim and color of title.
    “4. A person out of possession conveying land to a stranger, the conveyance is void, where the land is held adversely.
    
      “ 5. A person selling is presumed to know the situation of the land as regards adverse possession.
    “ Which instructions were refused by the court, to be given to the jury, as requested by defendant’s counsel. After which, the plaintiff, by his counsel, moved the court to instruct the jury in the words following, to wit:
    “If the jury believe, from the evidence, that Pleasant Harris, by deed, conveyed the land in controversy to Collins, and that Collins afterwards conveyed to Turner, and that, after Pleasant Harris had so conveyed the land to Collins, he, by other and later deed, conveyed the land to Jack Harris, who afterwards conveyed to Ellis; and that Ellis, under such conveyance, entered into and held possession at the commencement of this action, and that Ellis showed no other title, or color of title to the premises in question; they will find for the plaintiff, — otherwise, for the defendant.
    “ Which said last instruction was given by the court.”
    The jury found for the plaintiff; the defendant moved for a new trial, which, being refused, he embodied the foregoing evidence, but not the instructions, in a bill of exceptions, and sued out this writ of error.
    
      Vannerson, for plaintiff in error.
    1. It is sufficiently proved that Ellis was in possession, claiming under a title, when the lessor of the plaintiff acquired whatever title he has. The entry upon the premises being under claim and color of title, the defendant’s possession was adverse to the claim of Turner.
    2. Collins being out of possession of the premises when he conveyed to the lessor of the plaintiff, the case is brought within the- rule that if “a person out of possession conveys land to a stranger, which is held adversely, the conveyance is void, and the stranger cannot maintain an action.” 9 Johns. Rep. 55; 3 Johns. Cases, 101; 5 Johns. Rep. 489; 8 lb. 437; 11 lb. 91; 4 Kent’s Com. 488; 4 How. Rep. 13.
    3. The principle is well settled that, if the entry is under color of title, the possession will be adverse, however groundless the supposed title may be; and every possession is presumed to be adverse until the contrary is shown. La Frombois v. Jackson, 8 Cowen, 589; see also 7 lb. 353.
    4. And in order to constitute an adverse possession, it is only necessary that it should be under claim and color of title; a rightful title is not necessary. See 18 Johns. Rep. 355; 9 lb. 174; 13 lb. 118; 18 lb. 40; 8 Wend. 440.
    5. Every person selling lands is presumed to know the situation of his land as regards adverse possession; and we shall endeavor to show that the vendor of Turner is in the attitude of one selling a pretended title, and consequently that his conveyance is void. 3 Am. Com. Law, 140, and cases referred to; 1 Wend. 433; 7 Johns. Rep. 251 ; 13 lb. 289, 406, 466.
    6. I shall not controvert the question as to whether Collins, the vendor of the lessor of the plaintiff, could maintain an action of ejectment for the premises in dispute, but deny that his ven-dee can under the circumstances which distinguish this case. A man having only in him the right of either property or possession, cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed. 2 Blackstone, p. 213, and note.
    
      7. Buying and selling lands out of the possession of the vendor, and held adversely at the time, is buying and selling a pretended title, and is not a valid consideration for a promise. 2 Johns. Cases, 58.
    8. The statute of 32d Henry 8th against champerty and maintenance, is in force in the United States as a part of our common law. 1 Mass. Rep. 60, 61; 16 Pick. 115-117. The facts in this case bring Collins and Turner within the pale of this statute against champerty and maintenance. In the same authority it is said that “ no action can be maintained on a promise to pay for land conveyed against the law in relation to champerty and maintenance.” 11 Mass. Rep. 553, 554.
    9. Adverse possession is a question exclusively for the jury; and the judge having instructed the jury as to that fact, a new trial was granted. Jackson v. Joy, 9 Johns. 102; see also 9 Cowen, 530. We are not prepared to state whether our appellate court has recognized this position to the full extent of these authorities, but certainly this court would not go farther against the principle, nor would the plaintiff ask any farther yielding on the part of the defendant, than the admission of its being a mixed question of law and fact; yet in the instruction given by the court, notwithstanding the evidence in the cause, the whole question of adverse possession is taken from the jury, and, by that instruction, virtually decided by the court.
    10. The objection that the deed from Pleasant Harris to Collins ought not to go to the jury after the acknowledgment had been read to them, ought to have been sustained by the court, for the reason set forth in the record; and the distinct motion subsequently made to exclude it as testimony, was improperly overruled. The fact that evidence has gone to the jury does not of course entitle them to retain and act upon it; if so, what becomes of that controlling power of a court over causes? There is nothing more common than for courts to exclude, by instructing juries to disregard papers and things in proof. In this case, the motion was based upon the fact, that Jeptha S. Collins, whose name is signed to the acknowledgment of the said deed, was the same person with Jeptha S. Collins, the grantee or bar-gainee, with Harris the grantor; and proof was offered to establish that fact. The fact is certainly anomalous, that the grantor should make his acknowledgment of a conveyance before the grantee; we do not deny, for the sake of argument, that J. S. Collins was at the time a justice of the peace, and as such could take the acknowledgment of deeds; the statute points out the mode. How. & Hutch. 345, 346. But could he take the acknowledgment of a deed for land conveyed to himself? He may take it for other persons, but we think the policy of the law is against such a practice of a grantee’s taking the acknowledgment of a deed to himself; if so, then this deed was improperly admitted. The objection did not come too late, for the court had the power to rule out the evidence complained of at any stage of the trial before the jury retired from the court room.
    11. It ought not to be an objection, that the instructions asked for and refused, marked No. 2, 3, 4, and 5, are abstract propositions; because the first instruction is properly stated, and the others are asked in reference to that; and they may be considered as all so many branches of the first instruction required; they are all put down in immediate reference to the state of facts then before the court.
    12. The court, on inspection, will discover that the deed from Collins to Turner, and under which Turner claims, imports no legal consideration as moving from the grantee. It sets out that the consideration of twenty dollars was paid by the party of the first part to the party of the first part; a consideration moving from the vendor to himself! There was no evidence offered to explain the ambiguity; the record shows none.
    13. Even the sale of lands held adversely, when made by an administrator under an order of court, is champertous and void in equity. A fortiori would such sale be void under the sterner and more rigorous principles of the common law. 9 Yerg. 301; 3 Serg. & Rawle, 473; Chilton’s Probate Court Guide, 289.
    
      W. P. Harris, for defendant in error.
    1. The doctrine of the common law in regard to sales by persons out of possession, of lands held adversely'to their right, owes its origin to the old feudal law, which required the feoffor of lands to have possession, in order that he might perform the ceremony of investiture, which was essential to constitute the feoffee the tenant of the freehold. This doctrine has shared the fate of other feudal maxims which, if they exist now at all, are much modified, and stand upon reasons which are intelligible. The reason given by Coke and Blackstone for the adoption of this rule, in regard to such sales, by the common law, or by the statute of Henry 8th, not only does not comport with the character th.ey give of the ancient common law, .but when employed to enforce it, now, and in this country, is absurd in itself, and an insult to the integrity of our laws and the purity of our courts of justice. The reason given is, that pretended titles might be sold to great men, by whom justice would be trodden down and the weak oppressed.
    2. The true reason for the doctrine, and the one which limits its application in modern times, is the general principle which forbids the assignment of a chose in action, or a mere right of action, and the possession which is relied on to defeat a conveyance by the real owner, 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. Zeller's Lessee v. Eckert, 4 How. S. C. Rep. 289.
    3. If the rule is recognized as existing here at all, it is only to the extent that the conveyance is inoperative, in cases coming within it. The statute 32 Henry 8th is not in force here.
    The policy of our institutions is to remove the artificial restraints imposed upon the transfer of property by the common law. In regard to choses in action they have been almost entirely removed, and it may be questioned whether any transfer of property, whether in possession or in action, violates the spirit of our laws, unless the transaction is strictly a case of maintenance, or designed to promote corrupt and oppressive litigation.
    The term “ adverse possession ” is uniformly used to designate a possession in opposition to the true title and real owner, and, by its very meaning 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; that it is consistent with, and not in opposition to, title and ownership. So strong is this presumption, that in many cases it amounts to legal intendment, and is not allowed to be rebutted, and a party who relies upon adverse possession is required to prove his possession to be adverse to the title set up, in order to rebut this presumption. Jackson v. Sharp, 9 Johns. 163; Lord Raymond, 329.
    In the case under consideration, both parties derive title from the same source, and it comes within the rale laid down by Lord Coke, that where both parties claim from the same source( the possession is not adverse. See 1 Lomax, Dig. 622.
    4. It will be seen that at the date of the deed to Ellis, the defendant below, there was a tenant on the land. It does not appear whose tenant he was, but in contemplation of law, in the absence of all proof on the subject, the entry and possession by Bush would be referred to the title of Collins, who, at the time, was the real owner. 9 Johns. 163. The collusive arrangement between Bush, the tenant, and Ellis, by which the latter received the rent and was let into the possession, could not work any prejudice to Collins’s possession, or create an adverse holding. See H. <fc H. Dig. 349, sec. 31.
    5. This court cannot notice the instructions sent here by the clerk of the circuit court. They are not incorporated in the bill of exceptions, and there is no entry by the authority of the court on the record, in regard to them. They are not marked as the statute directs, and there is nothing here to show that the court below recognized them as having been asked, given, or refused. They are not marked “ filed ” by the clerk ; they are not noted by him, as given or refused. They come here on the authority of the clerk alone, with nothing to identify them.
    6. A motion was made to exclude the first deed, after it was read, on the ground that the grantor was the certifier, but no evidence was offered in support of this motion at the time it was made, and the court was right in refusing to exclude a deed, which was prima facie valid in all respects, on the simple suggestion of counsel unsupported by any offer of proof to sustain it. The offer to introduce evidence, after the testimony on both sides had closed, came too late. The admission of testimony, under such circumstances, is a matter in the discretion of the court, and some substantial reason should have been given for not offering it before. Cozart v. Lisle, Meigs, 65.
   Mr. Chief Justice Sharkey

delivered the opinion of the court. This was an action of ejectment for a lot in the town of Monticello. On the trial the defendant below, rvho is plaintiff in this court, requested the court to instruct the jury; 1. That if they believed, from the testimony, that Ellis was in possession of the lot in question, claiming the same under claim and color of title, at the time that Turner purchased from Collins, they must find for the defendant. 2. That buying and selling of lands out of the possession of the vendor, and held adversely, is buying and selling a pretended title. 3. Adverse possession need not be under full and perfect right; it is only necessary that it should be under claim and color of title. 4. A person out of possession, conveying land to a stranger, the conveyance is void when the land is held adversely; and 5. A person selling is presumed to know the situation of the land, as regards adverse possession. These charges were refused.

The charges seem to have been embodied in the form of a bill of exceptions, but it is not signed as such. They were probably put down in that form by the clerk, in compliance with the statute, and perhaps the statute was substantially complied with. This, however, is not very material, since a bill of exceptions was taken to the decision of the court, in overruling a motion for a new trial, which sets out the evidence. The state of facts shows the propriety of the charges asked. Both parties derived title from the same source. That under which plaintiff below claims, was anterior in date, but there is an alleged irregularity in the acknowledgment, which is entitled to much weight. It was moved to exclude the certificate, but the motion was refused. The plaintiff had never been in possession, and when he purchased, the defendant was in possession, under a title in all respects regular, except that it was junior to that of the plaintiff’s vendor; and may be better if the acknowledgment was irregular, and defendant purchased without notice. Thus the same question is raised on the motion for a new trial.

It is a 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 vendor. 4 Kent, 446; Jackson v. Brinkerhoff, 3 Johns. Cas. 101; 2 Thomas’s Coke, 456, note; Jackson v. Demont, 9 Johns. Rep. 55; 6 Mass. Rep. 418; 7 Ib. 76.

We cannot say that the policy on which this principle is founded, is so far changed as to justify us in declaring it obsolete. On the contrary, there may still be good policy in holding on to the principle.

Judgment reversed, and cause remanded.  