Summary
In Chatman v. Carter, 209 Miss. 16, 45 So.2d 841 (1950), the Court cited Peeples v. Boykin in observing that the execution of a mineral deed was "evidence of an ouster," but there were numerous other circumstances which it was thought might be sufficient on a new trial to make a question of fact as to whether the cotenant's possession had ousted the other cotenant.
Summary of this case from Nichols v. Gaddis McLaurin, Inc.Opinion
No. 37467.
April 24, 1950.
1. Appeal — suit to confirm title — decree against complainants as to land of which their title is undisputed, reversed.
In a suit to confirm their title to forty-six acres of land, complainants' title to thirty-one acres was undisputed, yet their bill was dismissed on the hearing as to the entire tract: Held that such a decree, palpably erroneous, cast a cloud on complainants' title to the thirty-one acres and was an error so fundamental as to require a reversal, although there was grave doubt whether the error had been sufficiently assigned.
2. Witnesses — evidence — claim against the estate of a decedent — testimony as to parol gift of land by decedent.
Defendants claiming land through an alleged parol gift from a deceased owner to his son are incompetent as witnesses to testify about statements alleged to have been made by the owner during his lifetime to the effect that he had given the land to his son, and as to any statements made by the deceased son's deceased heir as to her ownership, since such testimony would tend to establish defendants' claim against the estate of deceased persons contrary to the statute. Sec. 1690 Code 1942.
3. Adverse possession — parol gift — sufficiency of evidence.
A claim of title under a parol gift, accompanied by entry and adverse holding for ten years ripens into a good title; but in such a case the clearest and most satisfactory evidence is required as to the fact of gift, the identity of the land and the exclusiveness of the possession.
4. Adverse possession — execution of deed by occupant — evidence of ouster.
Where more than ten years ante litem the occupant of land gave an oil and gas lease, this together with the payment of taxes and acts of ownership over the land thenceforth made an issue whether the title ripened by adverse possession.
5. Adverse possession — person in possession of land not within the calls of his deed.
A person in the adverse possession of land for more than ten years becomes the owner of the land in his possession although not in the calls of his deed.
6. Adverse possession — lands not within the calls of occupant's deed.
An adverse possessor of land not within the calls of his deed can claim title by adverse possession only to such portion as was actually and continuously used, cultivated or occupied adversely to the title of the record owner and proof of the description of the land so actually occupied is admissible.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Adams County; R.W. CUTRER, Chancellor.
L.A. Whittington, for appellants.
The questions of law presented to this Court by this appeal may be stated as follows:
1. Does the description "15 acres of land located in the western corner of the following described tract of land" convey any valid title to any part of the land? Our contention is that such description is vague, indefinite and is wholly void and insufficient to convey valid title to any part of the tract of land described therein.
2. Does the evidence show a parol gift of the land by Monroe Chatman to his son, Ben Chatman?
3. Does the evidence show that Ben Chatman acquired title against his father, Monroe Chatman by adverse possession for the statutory period?
1. It is undisputed that the sole title that the defendants claim under is a purported conveyance conveying "15 acres in the western corner" of a certain 46 acre tract of land, which 46 acre tract of land is specifically described in the conveyances.
The only corners in the western part of said west half of Lot 1 are the northwest corner and the southwest corner. The deed wholly fails to identify the corner, whether the northwest or the southwest. The description "15 acres in the west part" of a given tract of land is void because vague, indefinite and uncertain and from it the fifteen acres cannot be located. We believe it unnecessary to cite any authority to this honorable Court to that effect.
2. The next question presented, Was there a parol gift by Monroe Chatman to Ben Chatman?
We submit that there is no sufficient proof of a parol gift, and moreover, under the provisions of Section 832, Code 1942: "An estate of inheritance or freehold, or for a term of more than one year, in lands shall not be conveyed from one to another unless the conveyance be declared by writing signed and delivered."
Again: "No estate in land passed under this section by verbal gift." Smith v. Taylor, 183 Miss. 542, 184 So. 423.
3. It was the contention of the defendants in the Court below that under this alleged parol gift, Ben Chatman and his wife acquired title to the land by actual and adverse possession during the statutory period.
It is inescapable from the evidence in this case that there is no proof of any parol gift and that there is no evidence whatsoever to support the theory that Ben Chatman went into possession of this land under a parol gift and occupied it adversely to the right and ownership of his father. The general rule of law is: "An adverse possession can not be predicated on the possession of the parent as against a child or on the possession of a child as against the parent." 1 Amer. Jur. 807; 12 L.R.A. (N.S.) 1140.
"Where a child enters into possession of a parent's real property, agreeing to pay the taxes thereon and to cultivate it for his own benefit, a title thereto can not be acquired by adverse possession." Haggard v. Martin (Tex. Civ. App.) 34 S.W. 660; 12 L.R.A. (N.S.); Meurin v. Kopplin, (Tex. Civ. App.) 100 S.W. 984; Long v. Hall, (Tenn. Ch. App.) 46 S.W. 343; Burrus v. Meadors, 90 Ala. 140, 7 So. 469; Butler v. Butler, 133 Ala. 377, 32 So. 579.
The evidence of Mr. Carter as to what Monroe Chatman stated to him and the evidence of Mr. Anderson as to what Ben Chatman's widow stated to him was incompetent, was objected to and the Court reserved its ruling. Such evidence was solely intended to establish their claim against the estate of a deceased person and was wholly incompetent.
"To establish parol gift of land, the clearest and most satisfactory evidence is usually required, not only as to the fact of the gift, but also as to identity of land, the exclusiveness of possession and the making of substantial improvements." 28 C.J. Par. 84, page 680.
In the case of Dean v. Tucker, 58 Miss. 487, the father bought half of a section of land in his own name and the son, who had recently married, went into possession thereof and had retained possession thereof thereafter. At the time the son went into possession, there was in cultivation one hundred acres of the tract, a dwelling house on the land and this tract was situated within a mile of the plantation on which the father resided. The Court says that the evidence showed that the son used the place as his own and that he spoke of it as his place and that there was evidence that the father spoke of it as his son's, "Joe's" place. The Court says further there was evidence that at one time the father said he had given it to the son. There was evidence that the son made additional improvements on the land, clearing up part of the land and making repairs on the place and there was proof that the father had given another farm to another son verbally. Notwithstanding, the Court says: "Under these circumstances, the facts so much relied on by the plaintiff in error that Joseph E. Dean used and occupied the land as his own, made improvements and repairs and took the rents and profits, do not even tend to show a claim on this part adverse to the father's title. All these facts are strictly in accord with the paramount and acknowledge title and ownership in the father. . . . That the father should have placed the additional burden on the son of paying the taxes is also in accordance with the permissive use and possession by the son; for it was but natural as the father expressed it, that he who enjoyed the profits of the land should pay the legal charges on it. That the place was spoken of in the family by the father as "Joseph E. Dean's" place is entitled to no weight for there is nothing more common than to designate any species of property of the father by the name of the child who has the permissive use of it."
Moreover, may it please the Court, there is no proof as to where this fifteen acres of land is located. There is no boundary mark. There are no lines of demarcation. We submit therefore that the defendants have wholly failed to make out their case of adverse possession under parol gift, or otherwise.
The Court will bear in mind that the burden of proof of the adverse possession was upon the defendants. Davis v. Davis, 10 So. (Miss.) 70.
We call the Court's attention to the fact that objection was made by complainants to any testimony to the effect that Monroe Chatman referred to any land as "Ben Chatman's land" and to the effect that Ben Chatman and his wife claimed to own any part of the land. The objection was overruled. The evidence was incompetent, but even admitting it, under the authorities that we have recited, it would be wholly insufficient to establish any claim of adverse possession or a parol gift; and that further, the tax receipts showing that Ben Chatman and his wife paid taxes on the land were wholly insufficient to establish either a parol gift or adverse possession.
Engle, Laub, Adams Forman, for appellees.
I. The evidence shows title in the appellees by parol gift followed by possession. Elmer v. Holmes, 189 Miss. 785, 199 So. 84; Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147; Davis v. Davis, 68 Miss. 478, 10 So. 70.
II. The evidence shows title in the appellees by adverse possession for a period of more than ten years. Kornegay v. Montgomery, 194 Miss. 274, 12 So.2d 423; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Kersch v. Lyons, 195 Miss. 596, 15 So.2d 768; Snowden McSweeney Co. v. Handley, 195 Miss. 682, 16 So.2d 24.
III. The description of the fifteen acre tract in controversy is a good and valid description. Early Company v. Long, 89 Miss. 285; Harris v. Byers, 112 Miss. 651, 73 So. 614; McCready v. Lansdale, 58 Miss. 877; McManus v. Wilson, 138 Miss. 1, 102 So. 543.
IV. Where title is claimed by adverse possession the sufficiency of the description is immaterial. Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Louis Cohn Bros. v. Peyton, 145 Miss. 261, 110 So. 509.
V. The appellants must rely on their own title in an action for confirmation and not on the weakness of the appellees' title. Levy v. Campbell, 200 Miss. 721, 28 So.2d 224; Calvert v. Mathers, 149 Miss. 671, 115 So. 780; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619; White v. Turner, 197 Miss. 265, 19 So.2d 825; Hume v. Inglis, 154 Miss. 481, 122 So. 535.
VI. The chancellor's findings on conflicting evidence will not be reversed unless manifestly wrong. Terre Haute Cooperate v. Brancome, 203 Miss. 493, 35 So.2d 537; Henry v. Gulf Mobile O.R. Co., 202 Miss. 669, 32 So.2d 199; Sharp v. Learned, 202 Miss. 393, 32 So.2d 141; Rounds v. Brown, 201 Miss. 564, 29 So.2d 657; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Dean v. Tucker, 58 Miss. 487.
Lizzie Chatman and others, representing all the interests of the heirs of Monroe Chatman and wife, Mahaley Chatman, as complainants in the court below, filed their original and amended bills against Fred A. Anderson, Jr., and Hillary W. Carter to confirm their title to 46 acres of land, described in the bills, and to cancel an oil lease and a warranty deed held by them, respectively, on 15 acres of the tract.
The answers set up that Ben Chatman, a son of Monroe, owned the 15 acres in controversy at the time of his death, which was prior to the death of Monroe; that the land passed to Eliza, the widow of Ben; that thereafter until his death, Monroe recognized Eliza as the owner; and that by adverse possession thereafter, Eliza and her successors perfected their title to the land.
There was no dispute in the following facts: Monroe Chatman owned all of this land. When Ben married, he and his wife, Eliza, moved into a house, situated on the 15 acres. They farmed the land, or a part thereof. In addition to cultivating this land, he was a charcoal burner, and used pine timber on the land for this purpose, which was his principal means of livelihood. On April 14, 1924, he died, and his widow, Eliza, continued to live on the place, using it as she and Ben had done before his death. On June 7, 1933, Monroe died. Thereafter, on September 27, 1933, Eliza executed to Fred A. Anderson, Jr., a deed to a 1/2 interest in the oil and gas rights on the 15 acres. The estate of Ben Chatman, or Eliza Chatman, paid the taxes from 1932 through 1945. The assessment to the estate of Ben Chatman had appeared on the roll prior to Monroe's death. Eliza died in 1942 or 1943, leaving Jeffie Anderson as her sole heir. He, in turn, executed the deed to Hillary W. Carter on January 23, 1946.
The proof by the complainants was to the effect that Ben and Eliza, after their marriage, moved on the place by the permission of Monroe; that any possession which they obtained was permissive; that after Ben's death, Eliza asked Monroe if she must move, and that he told her she could stay there as long as she lived, and at her death, the land would go to his heirs. They also contended that the description, "15 acres in the western corner of" the 46 acre tract was absolutely void.
The proof by the defendants was to the effect that Monroe made a parol gift of the land to Ben; that he and Eliza went into possession, farmed, burned charcoal, paid taxes, partly fenced, and exercised all acts of ownership thereover of which it was susceptible. They offered four deeds of trust and timber deeds executed by Monroe, et ux., of record in the county, in each of which the 15 acres in the western corner had been excepted, and in which instruments, "being now occupied by Ben Chatman" also appeared. These instruments covered the period from March 6, 1918, to April 26, 1926. They also introduced another record deed of trust of date of September 24, 1929, executed by Monroe et ux., with a like exception of the 15 acres and occupancy by Ben. After this exception, the following covenant appeared: "It is the true intent to convey all land in Adams County, Mississippi, now owned by Monroe Chatman and Mahaley Chatman, or either of them". These instruments were offered as corroboration of the alleged parol gift.
From this proof, the defendants contended that there was a parol gift followed by adverse possession, which ripened into a good title. But also, if they were mistaken in this regard, when Eliza executed the oil and gas deed to Anderson on September 23, 1933, such act constituted ouster; and her adverse possession thereafter ripened into a good title.
The whole controversy was over the 15 acres. There was no dispute that complainants owned the remaining 31 acres. The defendants neither sought nor obtained any affirmative relief. While the defendants showed that they were in possession of some land, they did not show a sufficient description thereof. The proof by the complainants was to the effect that they owned the 46 acres; by the defendants, that they owned 15 acres, in their possession.
(Hn 1) In this situation, the court decreed that the "complainants have no claim, right, title and interest to the land described in the bill of complaint filed herein." By adjudging that the complainants had no claim, right, title and interest to the land described in the bill of complaint, the decree not only did not grant any relief to them, but also put a cloud on their title to the 31 acres about which there was no controversy. The complainants were worse off when the trial ended than they were when it started, even though nothing in the evidence attacked their title to the 31 acres.
This was such a palpable error that we could, under no circumstances, affirm the case, even though there is grave doubt as to whether it was sufficiently assigned. We must, therefore, reverse the case.
The governing principles in a re-trial of the case should not be overlooked.
Objections were made to the testimony of the defendants, Anderson and Carter, with reference to what Monroe had said about giving the land to Ben and pointing out the boundaries, and what Eliza said about owning the land. Rulings were reserved in some instances. However, from the whole record of the trial, it is obvious that the court considered this testimony in arriving at a decision in the case. (Hn 2) This evidence went to the question of establishing their claims, which grew out of the alleged parol gift to Ben, and which merged with the subsequent adverse possession of Eliza, against the estate of Monroe Chatman, deceased. For that reason, the objections should have been sustained. Section 1690, Code of 1942. On a re-trial of this case, these witnessess should not be permitted to testify to any fact in defense of their claims against the estate of Monroe Chatman.
It was not shown just when Ben moved on the land. The first deed of trust, excepting the 15 acres "being now occupied by Ben Chatman", was dated March 6, 1918, and Ben died April 14, 1924. Thus, only 6 years elapsed. (Hn 3) A claim of title under a parol gift, accompanied by entry and adverse holding for 10 years, ripens into a good title. Davis v. Davis, 68 Miss. 478, 10 So. 70; Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147, 2 A.L.R. 1453; Elmer v. Holmes, 189 Miss. 785, 199 So. 84. But, under the present record, the proof was not sufficient to comply with these authorities. And the clearest and most satisfactory evidence is required as to the fact of gift, the identity of the land, and the exclusiveness of the possession. 28 C.J. 680. See also 38 C.J.S., Gifts, Section 57, page 843.
(Hn 4) The execution of an oil and gas deed by Eliza on September 27, 1933, was evidence of ouster. Peeples v. Boykin, 132 Miss. 359, 96 So. 177. This act, combined with the payment of taxes and acts of ownership over the land thenceforth made an issue as to whether or not the title ripened. Kornegay v. Montgomery, 194 Miss. 274, 12 So.2d 423; Snowden McSweeney Co. v. Handley, 195 Miss. 682, 16 So.2d 24; Louis Cohn Bros. v. Peyton, 145 Miss. 261, 110 So. 509. It was held in Daniels v. Jordan, 161 Miss. 78, 134 So. 903, that (Hn 5) a person in adverse possession of land for more than 10 years becomes the owner of the land in his possession, though not in the calls of his deed. In Kersh v. Lyons, 195 Miss. 598, 15 So.2d 768, it was held that (Hn 6) the adverse possessor could claim title by adverse possession to such portion only as was actually and continuously used, cultivated or occupied adversely to the owner of the record title.
Consequently, on another trial, proof by the appellees as to the land adversely possessed by them will be admissible. A proper description thereof can be obtained by a survey.
Reversed and remanded.