Summary
In Gowan v. State Highway Commission, 193 Miss. 365, 9 So.2d 637, the property was purchased on March 28, 1932, and the trial was being held on November 29, 1940.
Summary of this case from Mississippi State Highway Comm. v. LadnerOpinion
No. 34965.
September 28, 1942.
1. EVIDENCE.
Generally, the price paid for identical land by the owner or by one in privity with him is admissible to show the value of the land, provided that the time of purchase was recent enough to throw some light on the question of present value.
2. EVIDENCE.
In eminent domain proceeding by State Highway Commission, against owners of land, deed to the husband and father of the owners, which recited that the land was purchased for $10 per acre, was admissible to show the value of the land, if not too remote in time.
3. EVIDENCE.
Where a deed to identical land appears to have been freely made, and there is nothing to indicate, as a probability, that the actual consideration was other than as recited in deed, the instrument should be admitted to show the value of the land, if not too remote in point of time.
4. EVIDENCE.
Deeds to land near land the value of which is in question, and deeds between third persons not involved in the suit, are not admissible to show value of land in question.
5. APPEAL AND ERROR. Evidence.
On issue of remoteness in point of time of a deed reciting purchase price of land, the value of which is in question, a wide discretion is vested in the trial court, and appellate courts are reluctant to reverse on that issue.
6. EMINENT DOMAIN.
In eminent domain proceeding by the State Highway Commission against owners of land, admission of a deed to husband and father of owners of realty, which recited that he had paid $10 per acre for the land, was not reversible error, though the deed was executed eight or nine years before the proceeding, where jury viewed the land, factors which would operate to enhance value of land since its purchase were rather fully shown, and verdict was far in excess of $10 per acre.
APPEAL from the circuit court of Leake county, HON. PERCY M. LEE, Judge.
A.M. Warwick, of Carthage, for appellants.
The court erred in admitting, over objection of the appellants, introduction of a recorded deed conveying the tract of land of 30 acres in 1932 for the recited consideration of $300. Eight years had elapsed between 1932 and the trial of this case. The burden of proof on issue of damages and market value is upon the appellee; and we submit that in the absence of the appellee showing that the condition of the land is the same at the time of this condemnation trial as it was when the deed of 1932 was executed; in the absence of evidence to show that there had been no improvements to the land, no enhancement in value, and no change in the economical conditions of the country so as to affect the value of this land, it was entirely harmful, erroneous, and prejudicial for the appellee to introduce a deed that was eight years old into the evidence.
20 C.J. 987.
Greek L. Rice, Attorney-General, by Russell Wright, Assistant Attorney-General, for appellee.
The defendant objected to the introduction of the record of the deed by the chancery clerk of Leake County wherein it was shown that on the 28th day of March, 1932, 18.96 acres in Section 26, and 11.04 acres in Section 27 were conveyed to Dr. Gowan for $300. The court permitted the introduction of this deed, which was perhaps error, but in view of the fact that the jury gave a verdict not based on the value as contained in the deed but in double the amount that petitioner's witnesses themselves testified to, this error is bound to have been harmless. Appellant has not shown, nor could appellant show, that the jury was prejudiced by the introduction of this deed.
The owners have appealed from the verdict and judgment in an eminent domain proceeding. We find no reversible error in the record, but deem it appropriate to discuss one of the assignments.
The land in question was purchased by Dr. Gowan, the husband and father of appellants, on March 28, 1932, at a price of ten dollars per acre, as shown by the deed. The trial here being reviewed was held on November 29, 1940. The condemnor was allowed to introduce this deed in evidence over appellants' objection.
The general rule sustained by the weight of the authorities is that the price paid for the identical land by the present owner or by a party in privity with him is admissible in evidence, provided the time was close enough to throw some light on the question of present value. And while we have found no case in eminent domain proceedings wherein this has been permitted to be shown by the deed itself, including its recital of the consideration, it has been ruled that such a deed is admissible in assessment proceedings, with the reservation, however, that the recited consideration shall not be taken as conclusive and that the subsequent changed or changing conditions which would affect the price must be shown. Robertson v. Planters' Oil Works, 127 Miss. 610, 615, 90 So. 325. Being admissible in a hearing between the owner and the taxing authorities, it follows with equal reason that such a deed is admissible in a trial between the owner and any public agency authorized to condemn.
When a deed to the identical property appears to have been freely made and there is nothing to indicate, as a probability, that the actual consideration was other than as recited, the instrument should be admitted, if not too remote in point of time. Compare Hiller v. Jones, 66 Miss. 636, 640, 6 So. 465. The court instructed the jury at the request of appellants that the recitals in the deed as to price had no conclusive effect. Deeds to neighboring property and between third persons are not competent. Levee Comm'rs v. Nelms, 82 Miss. 416, 420, 34 So. 149.
Upon the issue of remoteness in point of time, a wide discretion is vested in the trial court, and appellate courts are reluctant to reverse on that issue. It must be said, however, that in nearly all the reported cases the trial court has been sustained in rejecting sales made so far back of the day of trial as was the period in this case, — between eight and nine years. See Orgel on Valuation under Eminent Domain, secs. 134-137. We would have been better satisfied, therefore, had the trial court rejected the deed as evidence; but in view of the fact that the jury viewed the premises and that the factors which would operate to the enhancement of the value of the land since its purchase were rather fully shown by the evidence of several witnesses, who were not disputed, and that the verdict was far in excess of ten dollars per acre, we have concluded that no substantial ground exists for a reversal upon this point, and as already stated there is not sustainable ground in the other assignments.
Affirmed.