CHARLES A. MINOR et al., Appellants, v. HENRY S. PEARSON et al., Appellees.

ARGUED JULY 10, 1912. DECIDED JULY 17, 1912.

Toliver, C. J., MoCants-Stewart and Johnson, JJ.

1. If no motion is made to set aside a verdict and for a new trial, an appeal can be taken from a final judgment, if exceptions are taken to the verdict and judgment. 

2. A naked possession of land by an intruder can not prevail against a paper title. 

3. A judgment founded upon a verdict contrary to instructions will be reversed; and where there are no disputed facts, this court will give judgment consistent with law and justice. 

Mr. Justice McCants-Stewart delivered the opinion of the court: 

Ejectment—Appeal from Judgment. This action was brought by appellants in the Court of Quarter Sessions and Common Pleas for Sinoe County to recover a lot of land in the City of Greenville, in said county, known as Lot No.1344. Judgment was rendered against appellants after a trial before a jury, and they come up to this court praying that said judgment be reversed. 

Upon the trial counsel for both parties stipulated as to the evidence to be submitted to the jury, and the undisputed facts seem to be, that the original owner of the lot in question was W. E. Harris, late of said City. of Greenville, who died in the year 1899, leaving a last will and testament of which R. A. Wright, and J. Sanders Harris, were executors. This will was duly presented for probate, and was contested by Ritta A. Harris, the widow of W. E. Harris, she being dissatisfied with the provision made for her in the will of her deceased husband. A compromise was arranged, and Mrs. Harris took by deed in relinquishment of dower, Lot No. 344, which deed was duly probated and recorded without objection from any quarter. 

Six years thereafter said Ritta A. Harris sold this lot to Z. B. Roberts, of said City of Greenville, and the deed given by her was also probated and recorded without objections, and he took possession of said lot. Z. B. Roberts died in February, 1910, in which month appellees, without any title, entered upon the lot, took possession of it and now hold it against the appellants in this cause, who are the legal representatives of the said Z. B. Roberts. 

Appellants are here excepting to the judgment of the court below mainly on the ground that the verdict upon which it is based was contrary to the instructions of the court upon the law: The only points submitted by appellees requiring consideration are: (1) that the judgment should be affirmed because no motion for a new trial was made; and (2) that appellants’ paper title is not sufficient in law to prevail against appellees’ possession. 

A verdict contrary to instructions will be set aside. The statute relating to exceptions to verdicts and the motion for a new trial is not mandatory in the sense that a party can attack a judgment only by pursuing this course. It may be the better practice, and the need for a practice code is felt by both bench and bar. But, as our law now stands, error lies to the judgment and not to the decision of the motion, though that decision may be made a ground for the reversal of the judgment. An order of the court granting or overruling a motion to set aside the verdict of a jury and grant a new trial is not a final judgment or order for the reversal of which error can be prosecuted before the final disposition of the case. (Conord v. .Runnels, 23 Ohio St. 601.) 

The bearing and effect of such a motion seem to have been discussed in the foregoing case and the principle there established followed in Young v. Shallenberger (53 Ohio St. 291). It was held, that if the motion to set aside the verdict and grant a new trial is allowed, it does not determine the action, but merely compels the parties to retry their case before the same tribunal ; and, if overruled, it simply permits the determination of the action already reached to remain undisturbed. It may be said that sustaining the motion has the effect of preventing a judgment in favor of the successful party at the trial, and affects a substantial right of his by subjecting him to the costs and uncertainties of another trial; and it undoubtedly does temporarily prevent final judgment, but not eventually, and the costs and uncertainties of another trial are the result of error which the court in the exercise of its discretion deems sufficient to warrant a new trial. And so, if the motion be overruled, the unsuccessful party must incur the expense of the proceeding in error, if he is dissatisfied with the result ; but neither the overruling or sustaining of the motion is such final decision or judgment as may itself be the foundation of an appeal, or of a proceeding in error. In failing to move to set aside the verdict and for a new trial, appellants, not appellees, may have suffered loss, in that appellants may have secured relief from the trial court, and had an early if not an immediate retrial of their case and a result satisfactory to themselves. 

The appeal provided for by our statute must be from a final decision or judgment. (Lib. Stat., Blue Book, 61; Illinwc v. Crayton, I Lib. L. R. 73.) It cannot be disputed that the appellants could have come here under a writ of error. Therefore, they did not lose their day in court by failing to move to set aside the verdict and for a new trial. Now, if they could get here under some well settled form of procedure, such as a writ of error, it would be a denial of justice to give the appellees the benefit of a technicality, that is, to affirm this judgment because the appellants are not here in the best form. Of course, if appellees were taken by surprise, or if any right of theirs were prejudiced by allowing this appeal to be considered, this court would not entertain it, as this court will not grant relief to any party who should come here seeking it in any way prejudicial to the rights of his adversary. But it can not be understood too clearly that this court will in no case allow any technicality to defeat justice. (Page v. Jackson, Lib. Ann., Series No. 2, p. 22.) 

The records show that appellants excepted to the verdict of the jury as well as to the judgment entered thereupon. They, therefore, saved their rights and thus laid the basis for the exceptions, which they bring to this court. 

Appellees further contend, that appellants should fail because of the weakness of their title; and appellees’ counsel argued at great length showing great industry and research in favor of applying to this case the doctrine, that “the plaintiff must recover upon the strength of his own title and not upon the weakness of his adversary’s.” 

Now there is not a scrap of evidence showing that appellees have any title to the property in dispute, or any color of title to it. It was admitted on the argument that appellees’ claim rests upon naked possession. They took nothing with respect to the property in dispute from the mandate of this court in the case of Pearson et al. v. Turner, Judge Monthly and Probate Court for Sinoe County, et al. In that case, the appellees in this case sought an injunction to restrain said judge from interfering with their use and enjoyment of the estate of W. E. Harris, hereinbefore referred to, and judgment was rendered against the appellees in this case in the court below; but this court reversed such judgment making the injunction perpetual, holding this language : “Therefore, the court adjudges the judgment of the court below is reversed, the injunction perpetuated, and the appellees pay all legal costs in the action.” (Pearson v. Turner, Lib. Ann., Series No. 1, p. 14.) 

Now, when the clerk sent the mandate to the court below, he inserted these words, which are found in the judgment, namely : “And that immediately upon receipt of this mandate you shall have the appellants put in possession of the estate in dispute.” As these words are in excess of the judgment of the court, they are a nullity and give appellees nothing whatever. 

And, further, the trial judge correctly charged the jury, that this mandate could not be construed to cover Lot No. 344 in dispute, said lot having been sold about nine years prior to the issuance of said mandate. 

The common law rule, that the plaintiff must recover upon the strength of his title and not upon the weakness of the defendant’s title, has been modified so as to allow plaintiff to recover, if he has any right to the property, and if that right is paramount to any right possessed by the defendant, although some third person may have a better right to the property then the plaintiff. 

For example, it has been held, that a tenant at will may maintain the action against a mere intruder, although his landlord has the better title. The intruder can not defeat the tenant at will by attempting to show that a better title exists outside of the tenant at will. For instance, the obligee in a bond to make title to land, who takes possession under agreement giving him permission to occupy the premises until the money becomes due, is but a tenant at will to the obligor, yet he may maintain an action of ejectment against an intruder. (Haythorn v. Margerem, 7 N. J. Eq. 324; Buntin v. Doe, I Blackf. [Ind.], 26.) 

Unfortunately, we do not have the library facilities for looking up cases whose conclusions we accept. From the meager discussions of the cases accessible to us, we follow the conclusions reached in them, when they seem to our minds to result from a sound course of reasoning. We accept the principles set forth in the cases just cited, because we are convinced that they may be safely applied here, as it would be a dangerous doctrine to establish, that any person may choose any land which he may covet and take possession of it, and hold it against a party showing at least color of title, founded upon deeds duly probated and recorded without objection from any quarter. Such a rule might tend to disturb the peace and quiet of the community, and lead to endless confusion and burdensome litigation. 

In Christy v. Scott, the plaintiff brought an action in ejectment in the District Court of the United States for the district of Texas. Defendant answered alleging, that plaintiff’s paper title was not good, and that title was in a third party. Plaintiff demurred, contending that this was no defense. The trial court gave judgment for defendant, and an appeal by writ of error was taken to the Supreme Court of the United States, which reversed the judgment of the court below. Mr. Justice Curtis, delivering the opinion of the Supreme Court, held : “The plaintiff says he was seised in fee and the defendant ejected him from the possession. The defendant, not denying this, answers, that if the plaintiff had any paper title it was under a certain grant which was not valid. He shows no title whatever in himself. But a mere intruder can not enter on a person actually seised, and eject him, and then question his title, or set up an outstanding title in another. The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s, is applicable to all actions for the recovery of property ; but if the plaintiff had actual prior possession of the land, this is strong enough to enable him to recover it from a mere trespasser who entered without any title.” (14 How. 282.) 

The judgment appealed from should be reversed, and as there are no disputed facts requiring the determination of a jury, this court, as provided by statute, should give judgment for the appellants, and remand this cause to the court below with directions to said court to record such judgment, and to take such further proceedings as may be necessary to put appellants in possession of the lot of land in dispute, with costs against appellees ; and it is so ordered. 

Arthur Barclay and C. B. Dunbar, for appellants. 

L. A. Grimes and T. W. Haynes, for appellees.