Anderson v. Bock

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

The facts in the case are set forth in the opinion of the court.

It was submitted, on printed briefs, by Mr. Bemis, for the plaintiff in error, with a brief by Messrs. Stockton and Steele, and by Mr. Benjamin, for the defendant in error. Plaintiffs' Points.

I. The charge of the court was manifestly improper and illegal, as the judge stated to the jury, 'it was his opinion, that under the written proofs and law of the case, the defence of prescription, set up by the defendant, must prevail.'

This was not a deduction for him to draw, but it was peculiarly the province of the jury to decide on the evidence. The defence of prescription involves both matter of fact and law; of the former the jury are exclusive judges, and of the latter they are also judges, under the instruction of the court as to what the law is.

This expression of opinion by the judge, in delivering his charge, could form, legally, no part of the charge.

He does not tell the jury what the law is, but only that, as the law stands, the proofs in the cause make out the defence of prescription.

II. The court erred in charging the jury, that the act of sale from the city to John Clay, dated 18th November, 1816, and the act of sale from Clay to defendant, dated 30th January, 1823, were of themselves evidence of possession in the defendant and his vendor, Clay, to support the plea of prescription.

Possession is a matter in pais, and it cannot be established by a mere paper conveyance of the property.

III. The court erred in refusing to instruct the jury, as required by the plaintiffs, 'that by the acts of sale, dated 15th October, 1810, from the city of New Orleans to Sticher and Anderson, the said city transferred to Sticher and Anderson the title and possession of the property, and that neither the title nor possession thereof can be presumed to be afterwards in the city; but, on the contrary, the city must show, by proper evidence, that the title and possession again came lawfully into its hands.

This was simply a requirement, on the part of the plaintiffs, that the court should instruct the jury that the elder title, emanating from the city to Sticher and Anderson, must prevail over the younger title from the city to Clay.

The deeds to Sticher and Anderson were made on consideration of an annual ground rent, to be paid by them for a certain number of years, and the further consideration of a stipulated price, to be paid by them after the term for the continuance of the ground rent should have expired. This term for the continuance of the ground rent had expired many years before the institution of this suit. No complaint has been made that Sticher and Anderson did not pay the considerations stipulated in the deed to them. There can, then, be no good reason why their prior title shall not prevail over the junior title of the defendant. Defendant's Points.

The first bill of exceptions complains, that 'the judge refused to charge the jury, that, by the act of sale, dated 15th October, 1810, from the city of New Orleans, to Sticher and Anderson, the city transferred to them the title and possession of the property; that neither could afterwards be presumed to be in the city, but, on the contrary, the city must show, by proper evidence, that the title and possession came lawfully into its hands;' and further complains that the judge, on the contrary, charged the jury, 'that the act of sale from the city of New Orleans to John Clay, dated the 18th November, 1816, and the act of sale from Clay to defendant, dated the 30th January, 1823, were of themselves evidence of possession in the defendant, Bock, and his vendor, Clay, to support the plea of prescription set up by the defendant.'

The second bill of exceptions complains that 'the judge stated to the jury, that it was his opinion, that, under the written proofs and law of the case, the defence of prescription, set up by the defendant, must prevail.'

Now, in relation to these bills of exceptions, it is to be observed that neither of them pretends on its face to set forth all the evidence offered in the cause, but only a part of the written evidence. As regards the second bill of exceptions, therefore, it is clear that this court is without the means of determining whether the charge of the judge was correct or not; and, in the absence of such means, the presumption of law is, that the judgment of the lower court was supported by the written proofs. For aught that appears in the record, there may have been offered in evidence a written admission by the plaintiffs that the defendant had been in possession, as is alleged in the answer, for a length of time sufficient to establish prescriptive right to the property; or written contracts, receipts, or other documents, proving him to have inclosed and built upon the property, or leased it to tenants, and collected rents. Without a statement showing what the written evidence was, it is impossible to say that there was error in the charge 'that under the written proofs and law of the case, the defence of prescription must prevail.'

In order to determine the propriety of the charge complained of in the first bill of exceptions, the issues presented by the pleadings must be taken into consideration.

The petition alleges possession by the defendant, but asserts the possession to be unlawful.

The answer admits the possession, and asserts it to have been lawful under just title for upwards of thirty years, and sets forth the deed under which the possession was acquired, to wit, the deed of 30th January, 1823.

The fact of possession being thus asserted by both parties, the only question was, whether the possession was lawful, or in good faith.

It appears, by the bill of exceptions, that the defendant showed, as the basis of his possession, the deed from Clay, of 30th January, 1823, being at a date twenty-seven years anterior to the institution of the suit.

By reference to the act of sale to defendant, it will appear, that when it was executed, 'Michael Bock, being present, declared that he accepts this act of sale and conveyance, is in possession of the said property, and contented therewith.' This deed was in evidence without objection, exception, or reservation.

Now the article 2455, of the Civil Code, provides that 'the law considers the tradition or delivery of immovables as always accompanying the public act which transfers the property.'The judge, therefore, had before him.

1st. The admission by plaintiffs of the fact of defendant's possession.

2d. The proof that this possession had originated in 1823, and was held by virtue of the sale made in that year, as recited in the deed itself.

3d. The legal presumption established by article 2455 of the actual delivery of the immovable sold.

4th. The absence of any allegation or pretence by plaintiffs of adverse possession in themselves or any other person than the defendant between the year 1823 and the institution of the suit.

The article 3442 of the Civil Code provides that 'he who acquires an immovable in good faith and by a just title, prescribes for it in ten years, if the real owner resides in the State, and after twenty years if the owner resides out of the State.'

It is obvious, from these premises, that the sole question before the court and jury was, whether the defendant had acquired a good title by prescription, and that the court did not err in charging the jury that the defence had been established.

The prayer of the plaintiff that the judge should charge the jury in relation to the effect of the sale from the city to Sticher and Anderson, was properly refused, because wholly irrelevant. The question was not whether Sticher and Anderson had acquired a valid title in 1810, but whether the defendant had subsequently acquired a good title to the same property by prescription, and the judge properly confined his charge to the latter inquiry, the only one relevant to the issue.

The language of the charge is, that the acts of sale set up by defendants 'were of themselves evidence of possession in the defendant, Bock, and his vendor, Clay, to support the plea of prescription.'

The Judge did not charge that these acts were conclusive or sufficient proofs, but that they were evidence of possession; and that they were evidence is fully established by the terms of the article 2455, above quoted. See also articles 3405, 6, 7, 3414, 3450.

The point in dispute is fully settled in the jurisprudence of Louisiana.

In the case of Ellis v. Prevost et al., 13 La. Rep. 230, 235, the principle is thus stated: 'No physical act, in taking possession under a sale by notarial act, is necessary. The intention of the purchaser, which the law presumes, coupled with the power which the act of sale gives, vests the possession in him. The right is taken for the fact, and he is seised of the thing corporally. Article 3405 goes on to provide that when a person has once acquired corporal possession, the intention which he has of possessing suffices to preserve it in him, although he may have ceased to have the thing in actual custody.'

It is, therefore, respectfully submitted that the plaintiffs have failed to show error as alleged, and that there is no legal ground for disturbing the verdict and judgment of the lower court.

Mr. Justice CAMPBELL delivered the opinion of the court.