# Probst v. Trustees of Board of Domestic Missions/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
129 U.S. 182
Probst v. Trustees of Board of Domestic Missions
This is a writ of error to the supreme court of the territory of New Mexico. The action was an ejectment brought by the defendants in error, the trustees of the Board of Domestic Missions of the General Assembly of the Presbyterian Church in the United States of America, against Charles Probst, to recover the possession of certain land. The plaintiffs below recovered a judgment against the defendant, which was affirmed in the supreme court of the territory, and this writ of error is brought by the defendant, Probst, to reverse that judgment. The case was tried before a jury. The plaintiffs failed to introduce any evidence of transfer of title from the government to any person, but relied upon the possession of the property by certain parties from about the year 1846 up to the bringing of this suit, and upon conveyances by those parties in such a manner that their right is thereby vested in the plaintiffs in the action. The defendant, Probst, relied mainly upon the statute of limitations as his affirmative defense.
Two questions are presented in this court for consideration. The first of these arises upon the introduction by the plaintiffs of copies of certain deeds, duly recorded, from the parties under whom they claim title down to plaintiffs. These copies were objected to, because no sufficient reason was shown why the originals should not have been produced, and none was shown, except that the last deed, which was claimed to vest the title in the plaintiffs, made by one McFarland, was probably in the possession of the officers of the corporation at its offices in the city of New York. The statute of New Mexico on this subject is as follows: 'Sec. 2768. When said writing is certified and registered in the manner hereinbefore prescribed, and it be proven to the court that said writing is lost, or that it is not in the hands of the party wishing to use it, then the record of the same, or a transcript of said record, certified to by the recorder under his seal of office, may be read as evidence without further proof.' Chapter 2, tit. 40, Comp. Laws. There was no attempt to prove that any of these deeds were lost, nor that any search had been made for them, nor any effort made to procure them. As regards those which were prior to the deed from McFarland to the board of trustees, it may be conceded that the presumption was that they were in the control and possession of the parties to whom they belonged, and the introduction of copies from the record might be sustained on this presumption. But as regards the deed from McFarland to the board, who were the plaintiffs, no such presumption can be made. All that was proved about that deed, its custody-possession, or location, was that it was not in the hands of the agent of the board in New Mexico. Naturally it would be in the possession of the New York office. No attempt was made to show that the trustees had made any search for it, or that any effort had been made to have it sent to the place of trial in this case; and it seemed to be supposed to be quite sufficient to authorize the introduction of the copy of the record to show that the deed, though in the possession of the plaintiff corporation at its proper place at its office, was not in the territory of New Mexico, and not in possession of the agent of the board there. No member of this court sitting on the trial of a case would admit this to be a sufficient showing under the statute of New Mexico that the writing was lost, or was not in the hands of the party offering it in evidence. But it may be conceded that a very large amount of discretion must be reposed in the trial court to whom such copy of a record is presented, in ruling upon the circumstances which shall determine its admission or rejection; and it is possible that, if there were no other objection to the proceedings at the trial than this one, this court would not reverse the judgment on that account, but it is certainly not good practice, nor an exercise of the discretion of the court to be commended.
The other objection, we think is fatal; and that is, to the instruction of the court in regard to the statute of limitations. An examination of the testimony shows that there was evidence tending to prove that the defendant, Probst, was in the exclusive possession of the land in controversy from a period variously stated to be from 1869, 1870, and 1871, onward up to the time of the trial. The action was commenced on the 16th day of July, 1881. The statute of New Mexico on the subject of limitations is found in the following section of the Compiled Laws: 'Sec. 1881. No person or persons, nor their children or heirs, shall have, sue, or maintain any action or suit, either in law or equity, for any lands, tenements, or hereditaments, but within ten years next after his, her, or their right to commence, have, or maintain such suit shall have come, fallen, or accrued, and that all suits, either in law or equity, for the recovery of any lands, tenements, or hereditaments, shall be had and sued within ten years next after the title or cause of action or suits accrued or fallen, and at no time after the ten years shall have passed.'
If, therefore, Probst was in possession on the day this suit was brought, and had been for 10 years prior thereto, no reason can be seen why that fact did not constitute a statutory bar to the action. It may be conceded that there is contradictory testimony on this subject, but it is very certain that several witnesses swear that he was in possession of the property prior to the year 1871, and that he had remained in such possession up to the time of the trial. The court, in its treatment of that subject, seem to have gone upon the ground that Probst's possession did him no good, and could constitute no defense, unless he had some kind of a title to the land connected with it, and manifestly left upon the jury the impression that this must be a title evidenced by writing. Among other things, the court instructed the jury as follows: 'The plaintiff claims title by purchase, evidenced by deeds, and not by simple possession; and I instruct you that if you believe from the evidence in this case that plaintiff did purchase this ground from persons who were legally entitled to sell the same, and took proper deeds therefor, and recorded said deeds in the proper office in the county where such lands were situated, that such record was notice to all the world of legal ownership, and that such land could not thereafter be taken up as vacant or abandoned lands; that even actual possession of such lands by the defendant for a period of ten years, if taken after such deeds were recorded, would not give him any legal title to them, but he would be as much a trespasser at the end of ten years as he was upon the day of his entry. If his entry was wrong, no length of time could make it right; but if you also find that plaintiff, by its agents, demanded possession and asserted its title, and brought its claim to the land distinctly to defendant's knowledge, it destroys all claims which he sets up to continuous and uninterrupted possession; and, if you also find that plaintiff resided upon and actually cultivated and possessed a portion of the land purchased by it, you are instructed that such possession extends to the boundaries described in such deeds of purchase. The defendant has informed you by his counsel that he claims this land, not by purchase, but because he has been in possession of it for over ten years. I instruct you that unless he had a right to the possession of such lands when he took possession of them he has no right now; time never makes a wrong right. If you find from the evidence that this plaintiff, by its agents, was actually residing upon the land purchased by it, and held by recorded deeds when this defendant entered upon said lands and wrongfully took possession of a portion of said lands, you must find for plaintiff, although you also find that defendant has held said lands for more than ten years adversely to plaintiff.'
Obviously the proposition here set out by the court is that if plaintiff had the real title to the land, and the evidence of it was on record, nobody could, by taking possession and holding it adversely for the period allowed by the statute, defeat such a title. The language used by the court is: 'Unless the defendant had a right to the possession of such lands when he took possession of them, he has no right now; time never makes a wrong right.' It is the essence of the statute of limitations that whether the party had a right to the possession or not, if he entered under the claim of such right and remained in the possession for the period of 10 years, or other period prescribed by the statute, the right of action of the plaintiff who had the better right is barred by that adverse possession. This right given by the statute of limitations does not depend upon, and has no necessary connection with, the validity of the claim under which that possession is held. Otherwise there could be no use for adverse possession as a defense to an action, for if the decision is made to depend upon the validity of the respective titles set up by the plaintiff and the defendant there can be no place for the consideration of the question of possession. It is because the plaintiff has the better title that the defendant is permitted to rely upon such uninterrupted possession adverse to the plaintiff's title as the statute prescribes; it being well understood, and an element in such cases, that the plaintiff does have the better title, but, though he has it, that he has lost his right by delay in asserting it. Nor is it necessary that the defendant shall have a paper title under which he claims possession. It is sufficient that he asserts ownership of the land, and that this assertion is accompanied by an uninterrupted possession. It is this which constitutes adverse possession, claiming himself to be the owner of the land. This is a claim adverse to everybody else, and the possession is adverse when it is held under this claim of ownership, whether that ownership depends upon a written instrument, inheritance, a deed, or even an instrument which may not convey all the lands in controversy. If defendant asserts his right to own the land in dispute, asserts his right to the possession, and his possession is adverse and uninterrupted, it constitutes a bar which the statute intended to give to the defendant. The instructions of the court are utterly at variance with this doctrine. They do away with the value of adverse possession as a defense to an action of ejectment. They say, in effect, that unless the defendant was in the right when he took possession, the length of its continuance does not afford him any ground for a defense, whereas it is obviously the nature and purport of the defense established by the statute of limitations that the defendant may not have been in the right, but this long actual possession estops the plaintiff from putting the defendant to the proof of the right.
The court not only erred upon this subject in the positive instructions which it gave to the jury, but also in refusing to charge as follows, at the request of the defendant: 'That an uninterrupted occupancy of land by a person who has in fact no title thereto, for the period of ten years adversely to the true owner, operates to extinguish the title of the true owner thereto, and vests the right to the premises absolutely in the occupier.' In Ewing v. Burnet, 11 Pet. 41, 52, this court said upon this subject: 'An entry by one man on the land of another is an ouster of the legal possession arising from the title or not, according to the intention with which it is done. If made under claim and color of right, it is an ouster; otherwise, it is a mere trespass. In legal language, the intention guides the entry, and fixes its character.' We think this is a correct statement of the doctrine of adverse possession. It is implied by the language of the court in Harvey v. Tyler, 2 Wall. 328, 349, that 'any one in possession, with no claim to the land whatever, must in presumption of law be in possession in amity with and in subservience to that title.' And the instruction of the court below in that case was approved, that if 'any of the defendants entered upon and took possession of the land, without title or claim, or color of title, that such occupancy was not adverse to the title of plaintiffs, but subservient thereto.' The fair implication in both of these cases is that where possession is taken under claim of title it sufficiently shows the intention of the party to hold adversely, within the meaning of the law upon that subject. There is no case to be found which olds that this adverse claim of title must be found in some written instrument. In the case of Bradstreet v. Huntington, 5 Pet. 402, 439, this court said: 'The whole of this doctrine is summed up in very few words, as laid down by Lord COKE, (1 Inst. 153,) and recognized in terms in the case of Blunden v. Baugh, Cro. Car. 302, in which it underwent very great consideration. Lord COKE says: 'A disseisin is when one enters intending to usurp the possession and to oust another of his freehold; and therefore querendum est a judice quo animo hoc fecerit, why he entered and intruded.' So the whole inquiry is reduced to the fact of entering, and the intention to usurp possession.' The judgment is reversed, and the cause remanded, with a direction to award a new trial.

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