Opinion
No. 34959.
April 27, 1942. Suggestion of Error Overruled May 25, 1942.
1. HUSBAND AND WIFE.
A wife can acquire title to land by adverse possession against her husband.
2. QUIETING TITLE.
In suit to confirm complainant's title to land and to cancel and remove cloud on title, complainant was required to show a good title in herself (Code 1930, secs. 403, 404).
3. HUSBAND AND WIFE. Quieting title.
Where complainant's husband abandoned and deserted complainant in 1920 and complainant remained in actual open possession of land on which they had formerly resided, and claimed it against everyone until 1934 when she was forced out of possession by defendant, complainant obtained title by "adverse possession" which was sufficient to authorize her to maintain action to confirm title and to remove a cloud thereon (Code 1930, secs. 403, 404).
4. QUIETING TITLE.
Complainant could not maintain action to confirm title to land which was occupied by defendant when suit was brought (Code 1930, sec. 403).
5. QUIETING TITLE.
Either possession in complainant or proof that land is unoccupied is indispensable to confirmation of title in complainant (Code 1930, sec. 403).
6. QUIETING TITLE.
Possession by complainant or nonoccupancy of land was not required as a "condition precedent" to right to maintain suit to remove cloud from title to land (Code 1930, sec. 404).
SMITH, C.J., dissenting.
ON SUGGESTION OF ERROR. (In Banc. May 25, 1942.) [8 So.2d 245. No. 34959.]HUSBAND AND WIFE. Quieting title.
Wife who, after being abandoned by husband, remained in actual, open possession of land on which they had formerly resided had a right to show by positive testimony that title of her husband had been thereby divested and that she had been invested therewith so as to establish wife's right to maintain action to confirm title and to remove a cloud thereon.
APPEAL from chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
Stewart C. Broom, of Jackson, for appellant.
Bill to confirm title can be maintained as such only when there is no adverse occupancy of the land.
Hume v. Inglis et al., 154 Miss. 481, 122 So. 535.
It is admitted that the appellant was adversely occupying the land at the time the suit was brought and prior thereto.
It is not allowable under a bill to cancel clouds, where there is adverse occupancy, to make unknown parties defendants as may be done in a general bill to confirm. Appellee herein makes "all other parties" defendants for the purpose of removing clouds from her title. It is, therefore, certain that the demurrer should have been sustained insofar as the bill sought to confirm appellee's title, and insofar as it was sought to cancel all other clouds on her title other than that of the defendant in the court below, appellant here. The court could have retained jurisdiction for the sole purpose of removing the cloud on the title of appellee by cancelling the record title or color of title of the appellant herein.
Hume v. Inglis et al., supra.
It is our contention that the period of adverse possession began on the date on which she filed suit for divorce against her husband.
The wife cannot acquire title as against her husband by adverse possession unless there is color of title or record title in the wife.
Lincoln v. Mills et al., 191 Miss. 512, 2 So.2d 809.
There must have been an ouster on the part of the claimant before her possession could run adversely to the record title of her husband. It is our contention that the filing of the divorce suit constituted an ouster notice; therefore, that was the beginning of her adverse possession.
See, also, Peeples v. Boykin et al., 132 Miss. 359, 96 So. 177.
Exclusion of adverse possessor by a trespasser destroys the continuity of possession, in the absence of ejectment of the trespasser by legal process within a reasonable time.
Krause v. Young (Tex. Civ. App.), 6 S.W.2d 800.
See, also, 2 C.J. 98-99, Sec. 129; 2 C.J.S. 706; Doe v. Eslava, 11 Ala. 1028-43.
B.D. Wade, of Jackson, for appellee.
Appellee contends that the demurrer should be overruled as the court did below and this case brought to trial on the merits and facts involved.
The bill of appellee, complainant below, can be maintained, if not to confirm title of appellant, certainly to remove the clouds thereon of appellant and her grantor and all other recorded transfers.
Hume v. Inglis et al., 154 Miss. 481, 122 So. 535.
Appellee contends that she has acquired title by adverse possession for the statutory required time of 10 years, which began with the desertion of her by Enoch Jackson, her husband, about 1920 or prior thereto.
Lincoln v. Mills et al., 191 Miss. 512, 2 So.2d 809; Big Blaine Oil and Gas Co. v. Yates, 182 Ky. 45, 256 S.W. 2; Union Oil Co. v. Stewart, 158 Cal. 149, 110 P. 313.
Stewart C. Broom, of Jackson, for appellant, on suggestion of error.
We desire to call the court's attention to the fact that there is not a case in Mississippi reported in the Mississippi decisions where husband or wife acquired title to lands by adverse possession in the absence of color of title in addition to the adverse possession.
The reason for that rule is that because of the relationship of husband and wife, some overt act in the nature of a disseizin must be done or performed as a matter of notice of the intention of the party to hold it adversely to the husband or wife. This is a rule of necessity and an examination of all the decisions in Mississippi will disclose that in every instance color of title has been an essential element to establish adverse possession in such cases. It is likewise true that whatever other elements of adverse possession there may be, unless there is color of title on the part of the claimant, no title by adverse possession can ever be acquired.
See 30 C.J. 579; Lincoln v. Mills, 191 Miss. 512, 2 So.2d 809, 3 So.2d 835; Hartman v. Nettles, 64 Miss. 495, 8 So. 234; Massey v. Rimmer, 69 Miss. 667, 13 So. 832; Niles v. Davis, 60 Miss. 750; Gordon v. Anderson, 90 Miss. 677, 44 So. 67.
The pleadings in the case at bar which were attacked by our demurrer claim nothing more than adverse possession. There is no pretense of adverse title either by written instrument or parol agreement. There is no claim on the part of appellee of color of title and she has no color of title. She was the wife of Enoch Jackson, who had title or color of title to the lands in controversy. She occupied these lands as his wife with a homestead right, which was nothing more than a veto power and her status was that of a wife and her rights were that of a wife until such time when she divorced her husband and on that date, and not until then, did her adverse occupancy begin, to-wit, on June 4, 1926.
We are confident if the court's attention had been called to the fact that appellee in this case could only acquire title by adverse possession as against her husband, based on color of title, and if the court's attention had been directed to the fact that the appellee did not have color of title during all that period of time between the date when her husband left her and the date on which she filed suit for divorce, that this opinion would never have been written, but, on the contrary, the views embraced in the dissenting opinion by Chief Justice Smith would have been the controlling opinion of the court, and the case would have been reversed and dismissed.
The appellee, Mary Jackson, a negro woman, filed her bill in the Chancery Court of Hinds County against the appellant, Mrs. J.W. Broome, and any others claiming an interest, seeking under the authority of sections 403 and 404, Code of 1930, to confirm her title to ten acres of land in Hinds County, and to cancel and remove, as a cloud upon her title thereto, the adverse claim of title of Mrs. Broome, and also against any others claiming interest therein, and also prayed that possession and rents be awarded her. There was an original bill and three amendments and a demurrer thereto by Mrs. Broome. The complainant's case was finally embodied in the original bill and the third amendment. The demurrer was overruled, and Mrs. Broome granted an appeal to settle the principles of the case.
Attached to the bill is the complainant's deraignment of title. It shows that the land was conveyed to complainant's husband, Enoch Jackson, by W.J. Griffin on February 13, 1903, and that Mrs. Broome's claim of title is based on a conveyance to her by L.H. Greaves on December 28, 1934; and that Greaves claimed title through a tax sale of the land. The bill alleged that the tax sale was void, and it had been so held by the Supreme Court in a certain case (naming it). Complainant's title is based on the conveyance to her husband, and open, notorious, adverse possession by her for more than ten years before suit was brought, and before Mrs. Broome received her conveyance.
The bill alleges that the complainant and her husband, Enoch Jackson, resided on and occupied the land as their home until 1920, when her husband deserted and left her, and that his whereabouts since then are unknown; that since that time, and up to some time in 1934, she has been in actual, open possession of the land, claiming it was hers, against everyone; that in 1934 she was forced through fear and intimidation to abandon possession of the land, and that immediately thereafter Mrs. Broome went into possession, and has so continued up to the bringing of this suit.
The two questions raised by demurrer are: (1) Whether the complainant shows a good title and right to possession of the land, as against Mrs. Broome's claim; and (2) whether, in view of the allegation in the bill, that the complainant was out of possession, and Mrs. Broome was in possession, the former was entitled to the relief prayed therefor.
Taking up the questions in the order stated:
(1) Although the case of Lincoln v. Mills, 191 Miss. 512, 2 So.2d 809, 3 So.2d 835, is not in point on its facts, nevertheless, the court held in that case that a wife could acquire title by adverse possession of land against her husband, although they were living together as man and wife. We have here, not a man and wife living together in that relation, but a husband who had abandoned and deserted his wife for more than twenty years before the bill was filed, and, furthermore, a husband who had been divorced at the instance of his wife for more than fifteen years before the suit was brought. Her claim of title and possession went unchallenged until 1934, when Mrs. Broome forced her out of possession and began to claim title. Under the law the complainant was required to show a good title in herself. This we think she did.
(2) Section 403 of the Code, authorizing bills to confirm title to land provides, among other things, that the complainant must either show that he is the owner, and in possession, of the land, or that he is the owner and the land is unoccupied. Here, as shown above, the land was occupied when the suit was brought by Mrs. Broome. In Hume v. Inglis, 154 Miss. 481, 122 So. 535, construing section 403 of the Code, it was held that either possession in the complainant, or the fact that the land was unoccupied, was indispensable to the confirmation of title. Under section 404 of the Code, authorizing the removal of clouds from titles to land, possession by the complainant, or nonoccupancy of the land, are not required as a condition precedent to the right.
The result is that the demurrer was rightfully overruled as to that feature seeking to remove clouds from complainant's title, and for possession and rents; and ought to have been sustained as to the other feature, which sought confirmation of the complainant's title.
Affirmed in part, reversed in part, and remanded.
ON SUGGESTION OF ERROR.
It is suggested the phrase ". . . when Mrs. Broome forced her out of possession . . ." in our original opinion was erroneous; that the bill does not so state. We think that conclusion might fairly be drawn from the allegations of the bill, but whether the statement is technically accurate or not, it does not change the result.
It is further suggested that reference to Lincoln v. Mills, 191 Miss. 512, 2 So.2d 809, 3 So.2d 835, was construed as holding that a wife might acquire title by adverse possession to the homestead as against the husband. Such was the holding under the peculiar facts of that case. Yet it is well to supplement this general statement with an explanation that the legal principle was invoked under circumstances when the wife not only had color of title, but such title and claim of the wife were known and recognized by the husband during his lifetime. Moreover, there were other positive acts of dominion exercised by the wife to the husband's knowledge. Our former opinion, 7 So.2d 829, merely recognizes the right of the wife in this case to show, by evidence of such nature and positiveness as is required in such cases, that the title of her husband had been divested and she had been invested therewith.
The writer desires to say that in his opinion neither the wife nor the husband can acquire title to the homestead by adverse possession as against the other while they are living together as man and wife thereon, whether such claimant has or has not color of title.
Suggestion of error is overruled.
DISSENTING OPINION.
The named defendants to the appellee's bill of complaint are Mrs. J.W. Broome and Enoch Jackson, the appellee's former husband, who is alleged to be a nonresident of the state, whose post office address is unknown and for whom publication was made. Mrs. Broome appeared and demurred to the bill of complaint. Enoch Jackson did not appear and as to him no disposition of the case has been made. The demurrer to this bill of complaint should have been sustained for the reason that the appellee's deraignment of title to the land does not disclose that she is the owner thereof. The bill does not disclose that the Government has parted with its title to the land, but that aside, it does disclose that the appellant is and has been in possession of the property since some time in 1935 under a deed thereto from L.H. Greaves executed in December, 1934, and that Greaves claimed by mesne conveyances from Dave Banks under a deed executed by him February 1, 1933. The bill then discloses that W.J. Griffin conveyed the land to Enoch Jackson on February 13, 1903, and that on the same day he also conveyed it to Alice Jackson. The bill then alleges that Mary Jackson, the appellee, and the defendant Enoch Jackson were married in September, 1900, and they lived together as man and wife until some time in October, 1920, presumably, though it is not expressly alleged, on the land in controversy, when Enoch Jackson deserted her, and that thereafter she continued in possession of the land until February 23, 1935, when she was forcibly driven from it by persons to her unknown and that the appellant Broome "took possession of the place in 1935 after the complainant had been forced to leave the place." In passing, I will say that the bill does not allege that "Mrs. Broome forced her (the appellee) out of possession and began to claim title," but only as I have hereinbefore set forth. The bill further alleges that Mary Jackson obtained a divorce from Enoch Jackson on June 4, 1926. It discloses that the title to this land is in the defendant Enoch Jackson, the appellee's husband, unless his title thereto has been divested by adverse possession thereof by the appellee. It does not disclose that the appellee's possession of the land prior to her divorce from her huband was adverse to him.
"Where parties, one of whom is claimed to have possessed adversely to another, are husband and wife, a degree of proof of adverse possession more strict than usual is required. Until some reason exists for the assertion of a title by the husband or wife, one against the other, the presumption will conclusively obtain that the possession of each is through, and on account of, the family relation, and not under a claim of ownership adverse to the title under which possession was taken, in whichever of the parties that title may be." 30 C.J. 579. It was Enoch Jackson's marital duty to provide the appellee with a home as long as she remained his wife, and when he permitted her to remain on the land in his absence therefrom, the presumption is that he did so in fulfillment of this duty to her and nothing in the bill of complaint indicates the contrary. Cf. Lincoln v. Mills, 191 Miss. 512, 2 So.2d 809, 3 So.2d 835. Enoch was relieved from this duty by the divorce granted the appellee on June 4, 1926, from which time I will assume that the allegations of the bill disclose that the appellee held the land adversely to Enoch. That possession however continued only to February 23, 1935, a period of time less than ten years, unless that period is extended by reason of the fact that on February 23, 1935, she was forcibly driven from and caused to abandon the land by unknown persons. "Abandonment of the land before perfection of title interrupts adverse possession . . . although it was involuntary." 2 C.J.S., Adverse Possession, sec. 146. After the appellee abandoned the land, she asserted no further claim thereto until the filing of this bill of complaint more than six years thereafter. Had she instituted legal proceedings to regain possession of the land within a reasonable time after she was driven therefrom, a different question would be presented.