#### *Colvin v. Menefee.

April Term, 1854,

Richmond.

i. Instructions—Erroneous -Effect.-*—An instruction Riven by the court, which upon the statement of the evidence Riven by the party excepting, could not be injurious to him, is no ground for reversing the judgment.

*482. Deeds of Trust—Statute of Limitations—Case at Bar.†—A deed of trust given to secure a debt provides that the grantor shall hold possession of the property until a certain day. Before that day the grantor makes an agreement under seal with a third person, by which he agrees to take a certain price for the property; and if the money with its interest was not returned within twelve months, the agreement was to stand as a hill of sale; and he delivers possession of the property. The trustee who has had no notice of this agreement, takes possession of the property and sells it, within five years from the time to which the grantor was entitled to hold it, and within five years of the time' which the agreement gave the grantor to return the purchase money; but not within five years of the time of the sale and delivery of the property to the party under the agreement. Held: The title of the purchaser of the grantor was not protected by the lapse of time, and the trustee was entitled to take possession and sell under the trust deed.

This was an action of assumpsit in the Circuit court of the county of Rappahannock, brought by James M. Colvin against Alexander IT. Menefee. The object of the suit was to recover the price of a slave named Milley, which had been sold by Menefee as trustee in a deed, and which Colvin claimed to have been his property.

On the trial of the cause the defendant asked for an instruction, which was given bj- the court; and the plaintiff excepted.

The bill of exceptions showed, that by a 'deed bearing date the Sth of August 1837, William Harmons conveyed to Menefee certain real and personal property, of which the slave Milley was a part, in trust to secure certain debts therein specified; *and the deed provided that Harmons should be permitted to retain possession of the property until the 1st of August 1839. This deed was duly recorded in the clerk’s office of the County court of Madison, where Harmons then lived and held the said slave in his possession. On the 16th of October 1838 Harmons entered into a written agreement under seal with Colvin, by which he agreed to take two hundred and fifty dollars for the slave Milley: And if the money with its interest was not returned to Colvin within twelve months, the agreement was to stand as a bill of sale, clear of all incumbrance. This agreement was made at the house of Colvin in the county of Culpeper, at which time the slave was in the county of Madison in the possession of Harmons or Milton Kirtley, under a temporary pledge for the loan of money from Kirtley to Harmons. Within three or four days thereafter, Harmons sent the slave Milley to Colvin, to be held by him under the contract aforesaid of the 16th of October 1838; and Colvin held possession of her in the county of Culpeper until the end of the year 1842, when he removed from Culpeper to Madison county, and carried the slave with him, and retained possession of her until the end of the year 1843, holding and claiming title to her under the said contract. Some time in the year 1843 Harmons *49removed from Madison to Culpeper county; and some time in the year 1844, before the 13th of March of that year, the slave Milley was found in the possession of Harmons in Culpeper, and was taken possession of by the defendant, who sold her under the deed of trust aforesaid, on that day, for the price of four hundred and eighty-one dollars ; for the recovery of which this suit was brought. Upon this state of facts the court on the motion of the defendant instructed the jury, that if they believed these facts, the said Colvin was to be regarded as having constructive notice of the *deed to Menefee, of the 5th of August 1837 ; and that it was not necessary for the protection of Menefee’s title to have the said deed recorded in Culpeper at all. And if the jury should believe that the plaintiff held possession of the slave Milley under the said contract, his possession, so far as Menefee was concerned, was the same as the possession of Harmons up to the 16th of October 1839; and that the statute of limitations did not commence to run against the said Menefee until the 16th of October 1839: The statute runs only in cases where the possession is adverse. In this case the possession was not adverse until the expiration of one year from the date of said contract.

Under this instruction the jury found a verdict for the defendant, upon which the court rendered a judgment. And thereupon Colvin applied to this court for a supersedeas,“which was awarded.

Morson, for the appellant:

This case comes upon an instruction given by the court below, that in as much as the conditional sale allowed one year for the repayment of the purchase money of the slave, that this time is not to be taken into account in considering the bar of the statute of limitations. It cannot be said that there was not a conflict between the sale and the trust deed. The grantor assumed a power not given him by the deed; and the purchaser took in conflict with it: And if this be so, the plaintiff is entitled to recover in this action. The adverse holding which is contemplated is a holding with a claim of right, and with a different title from the other side; and where there is such an adverse holding the statute runs. Bradstreet v. Huntington, 5 Peters’ R. 401.

Under the decisions of our courts it is not necessary to plead the statute of limitations in an action of detinue, and five years’ peaceable possession of slaves *gives title. ííewby’s adm’rs v. Blakey, 3 Hen. & Munf. 57; Brent v. Chapman, 5 Cranch’s R. 358; Shelby v. Guy, 11 Wheat. R. 361; Elam v. Bass’ ex’ors, 4 Munf. 301; Garland v. Enos, 4 Munf. 504. The court is also referred to the case of Sheppards v. Turpin, 3 Gratt. 373, the facts of which resemble in a considerable degree the facts of this case.

Robinson, for the appellee:

Here was a deed of trust duly recorded, *50which was a lien upon the property' against all persons claiming under the grantor; and of which they were bound to take notice. Colvin then took no title at the time of his purchase; and he relies upon his length of possession as giving it.

The possession of the grantor in the deed was consistent with it; and so was the possession of a purchaser from him. Rose v. Burgess, 10 Ceigh 186. That was a stronger case than the present, because in this by the deed the grantor was allowed to remain in possession. The trustee was not authorized to sell until August 1839; and he did take possession and sell within five years from that time.

The possession of Harmons the grantor was in trust for us; and no act of limitations could run in his favor against us. The possession of his assignee must be viewed in the same light, as he was bound to know the existence of the trust. And as Harmons had the right of possession to August 1839 and until the trustee should take possession and sell, it must be presumed that the- assignee holds in the same way until by some public notorious act he sets up some other title. If a grantor in a deed may make a private sale so as to bar the trustee, then is it a very ready means to destroy trusts. But the law proceeds on the ground that a person claiming under the grantor stands in his position until he publicly' disavows such possession. *When he does this, and is allowed to remain in possession for five years, then he may protect himself by the statute. He is like one coming in place of a tenant; for a grantor or mortgagor, after the time for taking possession Under the deed, is a tenant at will. Chambers v. Pleak, 6 Dana’s R. 430. And like principles are announced in the case of a trustee in Hendrick v. Robinson, 7 Dana’s R. 165.

The doctrine above stated is conclusive of the case, without reference to the-terms of the contract. But under the contract the time did not run until the end of twelve months. The purchaser could not bona fide claim title until that period; and without this -the possession did not vest title. Kitty v. Fitzhugh, 4 Rand. 600. The instruction given was in fact too favorable to the plaintiff. He proved no adverse possession either before or after October 1839; and therefore he was not entitled to the instruction that there was adverse posses•sion at that time. It is said there was a conflict between the trust deed and the purchaser. But he must bring home knowledge of the contract to the trustee; and there is no pretence of such ’ knowledge. The law presumes that the grantor was acting as be was -authorized to do, and not as he was not authorized to do.

The case of Sheppards v. Turpin, 3 Gratt. 373, is in strict conformity to the principles which have been stated. There the property was not sold by the grantor in the deed, but by a public officer, who had taken it under an execution, and sold it at public auction.

Morson, for the appellant, in reply:

The authorities cited by the counsel for the appellee belong to a class of cases essentially different from that before the court. They relate to the relation of landlord and tenant or trustees. This is of a wholly' different ^character. Here there is no privity between Colvin and the trustee. The title he takes is an adverse title in its inception. This was not an agreement to vest the title at the end of the year if the money was not repaid; but it vested the title at once, and only vested in Harmons the right to repurchase within a year. Harmons alone had the right to do this: Colvin could not compel him to do it.

It is true that the claim of title must be open and proved: And the bill of exceptions states that the possession was held from within thre.e days of the day of sale under a claim of title. One of the canons of the law as to personal property is, that possession is indicative of title; and here there was this possession with a convey'ance of the property by deed. To constitute an adversary possession, it is only necessary that it shall be with claim of title; not that the title claimed shall be good. Shanks v. Bancaster, 5 Gratt. 110. And with reference to the statute of limitations, courts do not enquire when the rights of the plaintiff were acquired, but when the defendant’s possession accrued. If the party in possession has held five years, that protects’ him; for if his possession is tortious, there must be some party entitled to seek redress for it.

*

Instructions—Erroneous -Effect. —Perfectharmony of opinion does not exist either in Virginia or West Virginia in regard to the rule of action of the court in reversing judgment on account of erroneous instruction; though the proposition laid down in the first headnote of the principal case, as far as it goes, seems in accord with great weight of authority in both states.

In the case of Wthey v. Givens, 6 Gratt. 277, it was held that where the instruction given to the jury is erroneous, the appellate court cannot undertake to determine that the verdict, notwithstanding the *48erroneous instruction, is right upon the evidence and therefore affirmed the judgment; hut the judgment must he reversed and the cause remanded for a new trial. Pasley v. English, 10 Gratt. 243, 244, seems to approve this statement of the rule, though the exact question Was not before the court in that case. But, in Rea v. Trotter, 26 Gratt. 585, 600, Wiley v. Givens is cited and expressly approved as laying down the correct rule upon the subject.

On the other hand, in the principal case. Judge Lee says; “The party asking the reversal of the judgment on the score of an . erroneous instruction on the trial, must at least show that he has probably sustained injury thereby.” See also, Preston v. Harvey, 2 H. & M. 55.

Again, many cases, citing the principal case, hold it to be a settled rule that, though-there has been an erroneous instruction, if the court can see from the whole record that even under correct instructions a different verdict could not have been rightly found, or that the acceptant could not have been prejudiced by the erroneous instruction, it will not for such error reverse it. See Bell v. Alexander, 21 Gratt. 9; Larue v. Cloud, 22 Gratt. 513, 518; Edmunds v. Harper, 31 Gratt. 645; Brighthope Ry. Co. v. Rogers, 76 Va. 451; Snouffer v. Hansbrough, 79 Va. 181; Payne v. Grant, 81 Va. 173; Moore v. City of Richmond, 85 Va. 543, 544, 8 S. E. Rep. 387; Bernard v. R., F. & P. R. Co., 85 Va. 794, 8 S. E. Rep. 785; Newberry v. Williams, 89 Va. 302, 15 S. E. Rep. 865; Richmond Ry., etc., Co. v. Garthright, 92 Va. 631, 24 S. E. Rep. 267; *foot-note*to Burns v. Waddill, 32 Gratt. 588. See, in accord, Kincheloe v. Tracewells, 11 Gratt. 587, 609; Hunter v. Jones, 6 Rand. 541; Western, etc., Co. v. Reynolds, 77 Va. 174; Benn v. Hatcher, 81 Va. 25; B. & O. R. Co. v. McKenzie, 81 Va. 72; R. & D. R. R. Co. v. Norment, 84 Va. 167, 4 S. E. Rep. 211; Com. v. Lucas, 84 Va. 303, 4 S. E. Rep. 695; Wager v. Barbour, 84 Va. 419, 4 S. E. Rep. 842; Richmond, etc., Co. v. Bailey, 92 Va. 554, 24 S. E. Rep. 232.

In Danville Bank v. Waddill, 27 Gratt. 448, after reviewing what is said in Wiley v. Givens, and Rea v. Trotter—cited above in the first paragraph —the court lays down the converse of the above proposition as settled law, saying: “Whatever may he said of the ruling in these two cases, it will not be disputed, that whenever an erroneous instruction is given, or what is the same thing, a correct one refused, the judgment will he reversed, unless the appellate court can see from the whole record, that even under correct instructions a different verdict could not have been rightly found, or unless it is able to perceive that the erroneous ruling of the trying court could not have influenced the jury.” In this case, the court further.held that the onus is upon the appellee to show that the error did not and could not affect the merit. See, in accord with this proposition, Kimball v. Borden, 95 Va. 207, 28 S. E. Rep. 207. And see also, the late case of Jackson v. Com., 97 Va. 762, 33 S. E. Rep. 547, in which Judge Keith, delivering the opinion of the court, said: “All error is presumed to he prejudicial, and while it (the-court of appeals) has approved verdicts rendered upon erroneous instructions, it does so with great caution, and only where it clearly appears that no injury could have resulted from the error." This is in harmony with the proposition laid down in *49Danville Bank v. Waddill, 27 Gratt. 448, and, with its converse laid down in the last preceding paragraph, is supported by the great weight of authority in Virginia.

In West Virginia also, there is some conflict on this question, though the great majority of decisions accord with the weight of authority in Virginia.

In Strader v. Goff, 6 W. Va. 264, it was said: “When an instruction given and excepted to, is apparently erroneous, the judgment must be reversed, though, it be not shown whether it prejudiced the party who excepted, or not. Chapman & Co. v. Wilson *&*Co., 1 Rob. 267.” This proposition was approved in Dinges v. Branson, 14 W. Va. 104.

But in Beaty v. B. *& O.*R. Co., 6 W. Va. 305, the court, citing and approving the principal case, held that the party excepting must exhibit facts disclosing an error material to the issue, and operating to his prejudice, and showing how he has probably sustained injury thereby in order to have the judgment reversed. In this case, since the court could not see how the party excepting had been injured by the erroneous instruction, it refused to reverse the judgment of the lower court. See also, in accord, Newlin v. Beard, 8 W. Va. 126, citing the principal case.

In Corder v. Talbott, 14 W. Va. 284, it was said: “It is true, as shown by the decisions in Virginia and in this state, that the court will not reverse a judgment, merely because the court misinstructed the jury, when all the facts proven in the case are in the record, and it appears thereby that the appellant could not have been injured by the misinstruction. See Insurance Company v. Hendren, 24 Gratt. 536: *Colvin v. Menefee, 11 Gratt. 87;*Pitman v. Breckenridge, 3 Gratt. 127; Clay v. Robinson, 7 W. Va. 350.”

In Mason v. Bridge Co., 20 W. Va. 224, 229, the proposition as laid down in Danville Bank v. Waddill and set forth above—was approved. The court said at p. 239: “The case of Dinges v. Branson, 14 W. Va. 100 (see third preceding paragraph), belongs to a class of cases in entire harmony with those cited. The record then before the appellate court did not show that the instructions if erroneous could have affected the verdict; and the rule is the judgment will be reversed unless It affirmatively and clearly appears, that the erroneous instruction could not have mislead the jury; the failure of showing, that the exception could not have been prejudicial, rests upon the party, at whose instance the erroneous instruction is granted.”

In accord with Mason v. Bridge Co., see also, Nicholas v. Kershner, 20 W. Va. 253, 263; Osborne v. Francis, 38 W. Va. 323, 18 S. E. Rep. 595, both cases citing the principal case as authority. And see State v. Douglass, 28 W. Va. 302.

In Osborne v. Francis, 38 W. Va. 323, 18 S. E. Rep. 595, It w'as said: “Hence the rule has long been settled that when the court can clearly see affirmatively that the error has worked no harm to the party appealing it will be disregarded (Gilmer v. Higley, 110 U. S. 47. 3 Sup. Ct. 471); and the judgment ought not to be reversed on the ground that the court below admitted illegal evidence, or gave an erroneous instruction to the jury, unless it appears that some injury could possibly have resulted therefrom to the party appealing (Preston v. Harvey, 2 Hen. & M. 55); for the appellant must make It manifest from the record in some way that the *50ruling against him is wrong. But, that being done, it is taken to he to his prejudice until the contrary is made to appear, and it must appear so clearly as to he beyond all fair ground of questioning that the error did not and could not with any reasonable degree of likelihood have prejudiced the party’s rights. See Deery v. Cray. 5 Wall. 795, 807.”

The court then gives along list of Virginia and West Virginia cases on this subject. See especially what is said in this case concerning the decision in Wiley v. Givens, 6 Gratt. 277. See further, on this subject, monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192; 2 Barton’s Law Pr. (2d Ed.) 1338-1342, and *notes.*

†

See monographic *note*on “Deeds of Trust.”

DANIEL, J.

The counsel for the defendant insists, that though the instructions of .the Circuit court may have been erroneous, yet this court ought not therefore to reverse; in as much as the supposed error could not have been prejudicial to the plaintiff. He refers to that provision of the deed by which Harmons is permitted to retain possession of the slave till the 1st day of August 1839; and says that the trustee had no right to sell under the deed, and was not bound to institute any action to recover the possession of the slave, until the day last mentioned; and that as he ^obtained the possession and made the sale within five years thereafter, the possession of the plaintiff had not, at *51the date of the sale, matured into a title to the slave, or ihe proceeds of her sale.

I do not think that this view of the case has been successfully met.

It is true that the bill of exceptions does not purport to set out all the evidence in tiie cause; and it is also true, that it is not necessary for a party excepting to instructions to state any facts except such as are necessary to present the precise point ruled against him and excepted to; and that it thence follows that the action of the appellate court is properly restricted, (as a general proposition,) to the consideration of the question of law so raised by the facts, and alleged by the party excepting, to have been erroneously decided against him in the court below. Yet I apprehend it is equally true that the fact thus exhibited must disclose an error material to the issue, and operating to the prejudice of the party excepting; that the party asking the reversal of a judgment on the score of an erroneous instruction on the trial, must at least, show that he had probably sustained injury thereby.

Now, I do not perceive in what regard the plaintiff could have been injured by the instructions. The injury, which he imputes to them, is. that they cut him off from making a case on his five years’ possession. But the facts which he sets out for the purpose of exhibiting the supposed error of the court, show at the same time, that the fate of his case, as resting on that foundation, must have been the same, though the instructions had not been given. For there is no proof that the trustee had any notice of the transaction between Harmons and the plaintiff, or of the removal of the slave from the county of Madison; and Harmons having, by the express terms of the deed, a right to retain the possession till the 1st of August 1839, I *hold it to be clear that the statute of limitations could not begin to run against the tru.stee till that period. Joyner v. Vincent, 4 Dev. & Bat. 512.

The plaintiff consequently could not have been prejudiced by the decision of the point ruled against him: For whether we refer the commencement of the running of the limitation to the period fixed by the instructions, on the 16th of October 1839, one year after the date of the agreement between Harmons and Colvin, or to the 1st of August 1839, the result is the same. The sale by the trustee in the spring of 1844 was, in either aspect, before he had lost his right to maintain an action for the recovery of the possession of the slave. The plaintiff’s own statement of his case thus showing that his possession and claim of title had not, by lapse of time, ripened into a perfect right to the property, as against the j trustee, at the time of the sale, his claim, to recover the proceeds of her sale, as founded on his adversary possession, must consequently have failed, though the instructions had not been given.

As this view of the case disposes of it, it 1 1 becomes unnecessary to consider other questions discussed at the bar.

I am for affirming the judgment.

*{*The other judges concurred in the opinion of Daniel, J.

Judgment affirmed.