
    Franklin Harmon v. Robert W. James et uxor.
    •A deed to a married woman is not void; as to third persons it is valid, whether she can he compelled to pay for it or not; that concerns the vendor alone. Where, therefore, B. conveyed a lot of ground to J. a married woman, and J. and her husband sued H. in ejectment for the lot; held, that H. could not object to the validity of J.’s title on account of her coverture.
    A deed conveying all the vendor’s lots, in a certain town, is not uncertain, but is sufficient to convey all the vendor’s interest, derived by a deed, from the commissioners who laid off the town.
    The copy of a title bond, taken from the record thereof, duly certified, is not evidence without accounting for the absence of the original.
    
    In an action of ejectment by the vendee of one tenant in common against those claiming under his cotenant, it is incompetent to prove by parol, the declaration of the plaintiff’s vendor, that he had, many years previous, conveyed all his interest in the land in controversy to his cotenant, under whom the defendant claimed. If such conveyance were lost, it could beset up by bill in equity.
    Where a bond for title is given, the interest of the vendee is not the subject of' execution sale at law, unless the purchase-money has all been paid; and. where a party to a suit in ejectment claims title through a purchase at sheriff’s sale of the interest of such vendee, it seems it is incumbent on him to show that the purchase-money has all been paid by such vendee, at the time of the execution sale.
    
      It seems that one tenant in common cannot maintain an action of ejectment against his cotenant or those claiming under him, without proof of ouster by such cotenant; an ouster, however, may be inferred from circumstances, and it is a matter of fact for the finding of a jury.
    •Whether, if a tenant in common be ousted by his cotenant, he may lawfully convey his interest in the premises, or whether the deed will be void for champerty. Qumre ? Yet if an action by those claiming under one tenant in common against those claiming under the other, the court instruct the jury, that if the deed from the tenant, under whom the plaintiff claims, was made after the ouster by his cotenant, the deed was void for maintenance, and the jury find for the plaintiff, the verdict will not be disturbed at the instance of the defendant.
    A failure to join in issue by a similiter cannot, after verdict, be cause of reversal.
    On appeal from the Yazoo circuit court; Hon. Morgan L. Fitch, judge.
    On the third of March, 1843, John Doe, on the demise of Robert W. James and Ann M. James his wife, sued Francis Harmon and Samuel Walker, who were made defendants in the ejectment, to recover the undivided half of lot 238, in the town of Yazoo city, formerly Manchester.
    The rule entered into was a special one, confessing only the lease and entry; there was no joinder in the issue tendered by the defendant, contained in the record.
    A trial was had, and verdict rendered for the plaintiffs; a new trial moved for and refused; and exceptions taken and signed thereto; from which these facts appear.
    The lessors of the plaintiff read a deed, dated the 22d of February, 1830, to Thomas Bernard and Angus McNeill, from George W. Adams and others, original proprietors of the town, including the lot in controversy. They then read the following deed from Thomas Bernard. “ Know all men by these presents, that I Thomas Bernard, of the county of Adams, state of Mississippi, of the first-part, have bargained, sold and delivered, and conveyed to Mrs. Ann M. James of the counjty of Holmes and state of Mississippi, of the second part, all my interest in real estate in the town of Manchester, (now Yazoo city) in the county of Yazoo and state aforesaid, for and in consideration of a note executed by the attorney in fact of the said Ann W. James, for the sum of one thousand dollars, dated December 28, 1842, and payable twelve months after date, which when paid will be in full payment for the above interest.
    “ Witness my hand and seal, Decembsr 28, 1842.
    (Signed) Thomas BernaRD. [Seal.] ”
    The plaintiffs then read to the jury a deed dated the 16th of February, 1838, from the sheriff of Yazoo county, to John Harmon, of all the interest which Christopher Dart had in the premises in controversy. They then proved, by W. G. Miller, that he was in possession of the property as the tenant of the defendant Walker, who was guardian of the defendant Harmon, an infant; that shortly prior to the commencement of the suit, James, one of the plaintiffs, had demanded the possession of one half of the premises from him, or one half the rent, which he had refused, as his landlord was Walker; that he and his brother, Stephen Miller, who died in 1842, had been in possession of the premises under Walker, as their sole landlord ; and they never knew that anybody else claimed title to the premises ; Walker once distrained, in his own name alone, for the rent. That the defendant Harmon was the only child of John Harmon.
    . N. G. Nye, for plaintiff, proved that he had been for some years agent of Samuel Walker, guardian of Harmon, had collected the rents of the property in controversy for him, and paid them over to him for his ward; that Walker, as guardian, exercised and claimed sole ownership over the lot in controversy, ever since his possession of it.
    The plaintiff having closed his case, the defendants read a deed from James C. Hawley to Christopher Dart, to the property in controversy, acknowledged on the 14th of October, A. D. 1836.
    They also proposed to read a certified copy from the records of a title bond from Angus McNeill to James C. Hawley, conditioned in the penalty of four thousand dollars, to make title to the lot in controversy with others, provided McNeill received out of certain notes on third persons, placed in his hands by Hawley, to be sued on, the sum of eighteen hundred dollars; on the reception of which, McNeill was to give a deed. This copy, being objected to by the plaintiffs, was excluded by the court.
    
      A. H. Morton, on the part of the defendant, testified that the defendant Harmon and his ancestor had been in the possession of the lot in controversy, and had improved it, from the time the first improvement had been put on it. Morton further offered to testify that Thomas Bernard, about the year 1835, had informed him that he had executed to one Angus McNeill a conveyance for all the interest which they owned jointly in the town of Manchester; that Angus McNeill is now an inhabitant of Texas, but of what part he did not know; that the conveyance had never been placed of record, and that diligent inquiry had been made for McNeill, but he could not be found. His testimony on these points was objected to and rejected by the court.
    The court instructed the jury that if they believed, from the testimony, that the proprietors of Manchester originally conveyed to Thomas Bernard and Angus McNeill a number of lots, among which the lot now in controversy was one, and that there was no evidence of record that Bernard had ever conveyed away his interest in lot No. 238, until the conveyance to the present plaintiff, and that conveyance was intended to include this lot, the law was for the plaintiffs, and they must find accordingly. But, in order to entitle the plaintiffs to recover, if they believed Bernard and McNeill were tenants in common, they must believe that there had been an ouster committed at some time; and if that ouster was committed before the conveyance from Bernard to the plaintiff, that conveyance was void for maintenance; but if they believed, from the testimony, that a demand and refusal had been made for the possession by the plaintiffs in this action, after the aforesaid conveyance, that was evidence from which the jury might presume an ouster. The defendant then asked the court to instruct the jury that if the only evidence of ouster was the demand of and refusal by Miller to deliver up the premises, that was not sufficient. The
    
      court refused to do so, and the defendants excepted and appealed to this court.
    
      N. G. and S. E. Nye, for appellant,
    contended,
    1. That, in addition to title, the appellee had to prove an ouster, as only a special rule, confessing lease and entry, was entered into. They cited Adamson Eject. 236; 4 Johns.. R. 312.
    2. That the evidence of Morton of the execution of the deed from Bernard to McNeill ought to have been admitted. Starkey v. Lacosle, 1 S. & M. 63.
    3. That the deed to Mrs. James was objectionable. 1st. Because the consideration was the note of a married woman, acting by attorney. 2d. Its vagueness and uncertainty. Wilkinson v. Davis, Frem. Ch. R.; Tomlins’s L. D. 551; 1 Shep. Touchstone, 245-251; 18 Johns. R. 107; 4 Kent, 466, 467; 5 Wheat. 359 ; 1 Sug. 183. 3d. That the deed contained no covenants of any sort, and gave no title to authorize a recovery in ejectment. 4 Cruise’s Dig. 82-85 ; Tuck. Com. tit. Release; 3 Tomlins’s L. D. 322; 1 Inst. 22; Noy’s Max. 74; 1 Inst. 274.
    4. That the conveyance to Mrs. James was void for maintenance. Montgomery v. Hogan, 1 Meigs’s R. ; Bledsoe v. Little, 4 How. If there was no ouster, being tenants in common, they could not recover; if there was an ouster, the deed was void for maintenance. They referred to the following authorities, on the doctrine of ouster: Coke, tit. Tenants in Common ; 4 Kent, 370; Peaceable v. Read, 1 East, 568; Doe v. Prosser, Cowp. R. 217; Fairclaim v. Shackleton, 5 Burr. 2604; McLung v. Ross, 5 Wheat. 124; Tuck. Com. tit. Tenants in Common; Toml. L. D. same title; Allen v. Hall, 1 McCord, 131; Adams on Eject. 88.
    5. The demand on Miller and the refusal by him was no ouster. Jackson v. Stiles, 1 Cow. 575.
    6. The demand for the rents and profits was no ouster. Binney v. Chapman, 1 Pick. 124; 2 Caines’s R. 215 ; Jackson v. Vasby, 7 Johns. 186.
    
      7. No issue was joined to the plea denying the trespass. Bozman v. Brown, 6 How. 349.
    
      W. Thompson, on the same side,
    contended that the writing from Bernard to Mrs. James was no deed; but a certificate that he had conveyed, not that he thereby conveyed, the interest set forth in it.
    
      Wilkinson and Miles, for appellee.
    In 'the first place, the special rule should not have been granted without an affidavit of the defendant, alleging that the plaintiffs claimed as tenants in common, or joint tenants. Adams on Eject. 263. It was granted, however, which put the plaintiff to the proof of an ouster, and for this purpose the witness Miller was called. From his testimony the jury seem to have inferred a demand of the possession of the premises by the plaintiff, and a refusal to deliver it by the tenant of the defendants, from the proof of which facts the court instructed them they might draw the inference of an ouster. Adams on Eject. 55, and notes; Cummings v. Wyman, 10 Mass. R. 468; Brackett v. Norcross, 1 Greenl. 91.
    2. The exclusion of the testimony of A. H. Morton will probably be objected to. if this testimony was offered for the jury, we need not argue the propriety of its exclusion. If it was offered to the court, as laying a foundation for proving the contents of a lost deed, its disregard by the court was equally proper. We understand the rule to be, that the fact that the written instrument ever did exist, must first of all be proved. Then its loss must be proved, and then its contents may be established by parol. The fact of its existence must be proven by a person who has seen it; the acknowledgment of the grantor is not legal proof of such fact. Greenl. on Ev. 396, and authorities cited.
    3. From the assignment of errors, it appears that the validity of the deed from Bernard to Mrs. James will be questioned. It. will be said, perhaps, that an agreement to pay money at a future day is not a sufficient consideration to support a bargain and sale. We believe the law to be that any consideration of value which will raise an use, will support a deed of bargain and sale, and that a promise to pay money, provided such promise can be enforced at law, will have this effect as fully as an actual payment of it. This appears to be admitted as law by the court in the case of Jackson v. Pike, 9 Cowen, 72, and in the case of Jacksonv. Florence,-\6 Johns. 48, and in fact is too plain a proposition to expend research upon it.
    It may, furthermore, be intended to object to this, and that the words of conveyance are in the past, instead of the present tense, “ have bargained, sold, &c.” To this we answer, that all deeds are but evidence that the grantor has parted with his estate, and vested it in the grantee. They are only evidence 'that a feofment, grant, gift, &c. has been made. Hence the words “ dedi,” “ concepi,” &c. in the past tense, are constantly used. This view is perhaps even more clearly applicable to deeds of bargain and sale than to any other species of conveyance, since they as clearly import that the requirements of the statute of uses have been complied with, as the employment of language operating in presentí. The statute executes the possession, to the use as well where the sealed evidence, (the deed) shews that the bargainor has already bargained and sold for a money consideration a landed estate, as when it shows that he does so eo instanti with the making of the deed. This reasoning may appear unnecessary, but it is employed to obviate the only objections that we conceive it possible to be raised to the deed. We must necessarily, in debating upon paper, anticipate objections, although such objections may never be made.
    
      
       The trial, in this case, took place in the court below, prior to the session of the legislature of 1844; at that session, the law, as stated in the text, was-changed. (Sheet Acts, 1844, p. 230, chap. 58.) By that act, the law of 1837, Laws of Mississippi, 1824-1838, p. 760, entitled “ An act, declaring certain-copies competent testimony and for other purposes,” it was provided, that “ Copies of all recorded deeds, conveyances, bonds, and other instruments of' writing, which are now, or may hereafter, by the laws of this state, be required, or permitted to be recorded, shall, when certified by the clerk, in whose office ' the record of the same is kept, be received in evidence, in any court of law or equity in this state, and be available, without accounting for the absence of the-original, as if the original deed, conveyance, bond, or other written instrument, were there and then produced and proved.” See Chaplain v. Briscoe, 5. S. & M. 198. • - ■ -
    
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of ejectment, in the circuit court of Yazoo county, to recover an undivided moiety of a lot in Yazoo city. The plaintiffs below derived title from a conveyance made by Thomas Bernard, to whom the commissioners of the town had originally conveyed the lot in question, jointly with Angus McNeill. The plaintiff in error claims title under the same deed of the commissioners. McNeill, it is alleged, gave a title-bond for his interest in the, lots, to James C. Hawley. Hawley conveyed by deed to 0. Dart, under a judgment and execution, against whom, the ancestor of Harman purchased, and upon his death the same descended to the present plaintiff in error, defendant in the court below.

There was an attempt to prove on the part of the defendant Harman, by parol, that Bernard, before he conveyed to Janies and wife, had said he had conveyed his interest in the premises to McNeill; that McNeill was absent in parts unknown; that the said conveyance had never been recorded; and that fruitless effort had been made to discover the residence of McNeill. It will thus be seen that it is an action by one tenant in common against another.

Various questions have been made in the argument, which will be noticed in their order. It is said that the conveyance from Bernard to the plaintiffs is void, because a married woman is not able to contract. That question cannot be raised by this party. Bernard does not appear to be dissatisfied with the conveyance, and no one else can object for him. A gift from him to Mrs. James, of the lot, would be valid, upon her acceptance of it, and a sale is, as to third persons, equally good, whether she can be compelled to pay for it or not. That concerns Bernard alone. The other objections to the deed are equally untenable. It is not very formal, it does not describe any particular lot by number, but is a general conveyance of all his lots in that town. There is no such uncertainty in this as to make the conveyance void. It is sufficient to convey all of Bernard’s interest, for, by reference to the deed of the commissioners, it is seen that the lot in question was included in their deed to him. The legal title of the plaintiff is thus made out, and the right to recover established, unless an equal title be shown to exist in the defendant.

This has not been done. The original title-bond from McNeill to Hawley was not produced. A copy was offered in evidence, without accounting for the absence of the original. This was rightly rejected, as the copy, under such circumstances, was not proper evidence. Haydon v. Moore, 1 S. & M. 607.

The exclusion of the parol evidence of the conveyance by Bernard to McNeill, was not error. The offer was to prove by the witness, the declaration of Bernard, that he had conveyed, all his interest in the lots in question to McNeill, as early as 1835. It would be of dangerous tendency to set aside a deed, to give preference to another upon a declaration of that sort. If such conveyance had ever been made, and been lost, a bill in equity against all the parties in interest, to set up the lost deed, would have been the proper mode of proceeding.

But even if the title-bond of McNeill had been admitted in testimony, it would probably not have helped the defendant. It was executed to Hawley, no deed appears ever to have been executed to him, nor is payment of the purchase-money by him shown. He convejnsd to Dart, and Harmon purchased at execution sale against Dart. According to the decisions of this court, Hawley does not appear to have had any interest which was the subject of execution sale at law; he could transfer no greater title to Dart than he possessed himself— a mere equity. Whether Dart had an interest which could be sold under execution, we need not decide; it is enough to show that the title of the defendant was not equal at law to that of the plaintiff.

But it is said that there was no proof of ouster of the one tenant in common by the other, and that without such proof, verdict should not have been rendered for the plaintiff. The charge of the court contained a very fair exposition of -the law. An ouster may be inferred from circumstances, and it is a matter of fact for the finding of a jury. 1 Tilling. Adams, 56 ; 10 Mass. 468. There were circumstances proven, from which an ouster might very properly he inferred, and we shall not disturb the finding.

Again, it is said, that if an ouster were established, if it occurred before the conveyance from Bernard to the plaintiffs, the conveyance itself is void for champerty. On this point the court charged the jury, “ that if the ouster were committed before the conveyance from Bernard to the plaintiff, that conveyance was void for maintenance.” This was as favorable to the plaintiff in error as he could have desired. Without expressing any opinion as to its correctness, it is sufficient to say, that he cannot complain of it. It was incumbent upon him to prove that the ouster was previous to the conveyance, if the fact were so; and having failed to do it, he cannot complain of the finding.

The last point made, that there, is no similiter, cannot,.after verdict, be cause of reversal. 9 Yerger, 24.

The judgment is affirmed.  