Opinion
No. 29445.
May 25, 1931.
1. APPEAL AND ERROR. Courts. Though county court's jurisdiction is limited in amount, it is court of general jurisdiction: where question of county court's jurisdiction is not raised below, and does not appear on face of record, jurisdictional facts will be presumed.
The county court is a court of general jurisdiction, although limited in amount of its jurisdiction, and, where the question of jurisdiction is not raised below, nor appears on the face of the record, the jurisdictional facts will be presumed.
2. ADVERSE POSSESSION. Land becomes property of one in possession claiming ownership for more than ten years, though land is not within deed; fact of adverse possession and claim of ownership for statutory period confers title.
Where a person is in possession of land, claiming to own it for a period of more than ten years, the land in his possession so claimed, although not within the calls of his deed, becomes his property. It is the fact of adverse possession and the claim of ownership for the statutory period that confers title.
3. ADVERSE POSSESSION. To stop running of statute, there must be physical interruption of adverse possession, suit, or unequivocal act of ownership inconsistent with exercise of possession; mere verbal protest or statements are insufficient to stop running of statute against one in adverse possession.
In order to stop the running of the statute of limitations, mere verbal protest or statements are insufficient. There must be a physical interruption of adverse possession, or a suit, or some unequivocal act of ownership inconsistent with the exercise of possession to stop the statute.
APPEAL from circuit court of LeFlore County; HON. S.F. DAVIS, Judge.
S.L. Gwin, of Greenwood, S.E. Ormond, of Ruleville, and D.S. Lucas, for appellant.
The county court in the case at bar is a court of limited jurisdiction. Prior to the creation of the county courts, the circuit court had exclusive jurisdiction in all ejectment proceedings.
Hemingway's Code 1927, sections 1509 to 1523.
Nothing is presumed in favor of the judgment of a court of inferior or limited jurisdiction as against collateral attack; but the jurisdictional facts must affirmatively appear on the face of the record.
34 Corpus Juris, p. 524, section 844; Adams v. Greenwood First Nat. Bank, 103 Miss. 744, 752, 60 So. 770; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Scott v. Porter, 44 Miss. 364; Cason v. Cason, 31 Miss. 578.
The value of the subject-matter is a jurisdictional fact and must be shown affirmatively by the record not to exceed one thousand dollars.
Adams v. Bank, 103 Miss. 744, 60 So. 770; Root v. McFerrin, 37 Miss. 17; Scott v. Porter, 44 Miss. 364; Cason v. Cason, 31 Miss. 578; 1 Miss. Walker Rep. 75; Elzey v. State, 110 Miss. 502; Crosby v. State, 136 Miss. 305; Bank v. Jones, 153 Miss. 798; Dulion v. Folkers, 153 Miss. 91; 34 C.J. 542, section 843.
The judgments of courts of limited and special jurisdiction, exercisable in a particular manner, are not, in and of themselves, evidence of jurisdiction and its lawful exercise. In cases of this character, the jurisdictional facts must be shown on the face of the record.
Bolivar County v. Coleman, 71 Miss. 832; Adams, State Revenue Agent, v. First National Bank of Greenwood, 103 Miss. 744, 60 So. 770.
Nothing is presumed in favor of the judgment of a court of inferior or limited jurisdiction as against a collateral attack; but the record of its proceedings must show on its face that the court rendering the judgment had jurisdiction both of the person and subject-matter.
Adams, State Revenue Agent, v. First National Bank of Greenwood, 103 Miss. 744, 60 So. 770.
There is no presumption as to the jurisdiction of a court acting under special statutory power.
Rothenberg v. McElroy, 67 Miss. 545.
The general rule is that where one in ignorance of his actual boundaries takes and holds possession by mistake up to a certain line beyond his limits, upon the claim and in the behalf that it is the true line, with the intention to claim title, and thus, if necessary to acquire title by possession up to that line, such possession having the requisite duration and continuity, will ripen into title.
1 R.C.L. 732, section 50.
Where another is asserting a claim of right and using land under such claim, a party must do something more than merely verbally protest; there must be a physical interruption or a court proceeding or some unequivocal act of ownership which interrupts the exercise of the right claimed and being used by the opposite parties.
McIntyre v. Harvey, 128 So. 572.
It is the fact of adverse possession of a claim of ownership for the statutory period that confers title.
Jones v. Gaddis, 67 Miss. 761; Evans v. Harrison, 130 Miss. 157; Green v. Pickett, 127 Miss. 739; Schuler v. McGee, 127 Miss. 873.
Alfred Stoner, of Greenwood, for appellee.
When owners of adjacent tracts, being ignorant of the location of the true line, occupy up to a line which they agree is merely provisional and is to continue only until the true line is thereafter determined, neither can acquire title to any land not within the true line. So where a landowner builds a fence, knowing it is not on the true line, between his land and that of an adjoining owner and intending, when the true line is established, to conform to it, his possession is not adverse as to the land within his fence, but outside the true line.
2 C.J. 138, section 239.
The statute does not run during the period of permissive occupancy.
Neal v. Newberger, 123 So. 861; Meyer v. Sea Food Co., 136 Miss. 868, 101 So. 792; Magee v. Magee, 37 Miss. 138.
The price paid for property is admissible to show its value prima-facie.
Kennebeck Water District v. Waterville, 60 L.R.A. 856.
The county court is a court of record.
Acts 1926, page 222, section 7.
The county court is not a court of limited and special jurisdiction.
11 Cyc. 656; 7 R.C.L. 974.
The burden of proof that the amount in controversy is not within the jurisdiction of the court where the complaint shows jurisdiction, but a dismissal is sought for lack of jurisdiction rest upon the defendant.
15 C.J. 760; 7 R.C.L. 1052.
The real amount involved in a controversy may be put in issue by a plea to the jurisdiction, otherwise the value mentioned in the declaration controls.
15 C.J. 760.
Argued orally by D.S. Lucas, for appellant.
The appellee, Jordan, was plaintiff in the court below, and brought a suit of ejectment for a strip of land lying between lots belonging to Jordan and Daniels in the city of Greenwood, Miss.
The declaration did not allege the value of the land, and the proof did not specifically show what the value of the land was. The deed of plaintiff (appellee here) shows that he purchased three lots in the year 1919. This suit was brought some ten years later. The defendant pleaded not guilty, and also pleaded the statutory limitation of ten years.
The proof, without dispute, shows that Daniels purchased his lots in 1915 and erected a fence upon the line in dispute, or what he claimed to be the line between his land and the land purchased by Jordan, which fence extended, perhaps, two-thirds of the distance from the rear to the front of the lots.
When Jordan was about to purchase the lots, he wanted Daniels to join with him in having a survey made so he could see the line, but this Daniels refused to do, and stated that Jordan could have the survey made and that he (Daniels) would do what was right about the matter.
According to some of the plaintiff's testimony, later Jordan, after purchasing, desired to have the line run, when Daniels again refused to join him, but stated that Jordan could build a fence on his own land, and that he (Daniels) would permit his fence to remain, and that they could call the land involved "No Man's Land." This was denied by Daniels. Jordan did not take any steps to have the survey made until the year 1927, but in 1925 he again approached Daniels about having a survey made, stating that he believed the fence was over on his (Jordan) land, and that Daniels again stated he would do what was right, but claimed the fence was on the line.
Taken at its strongest, the proof for plaintiff as to adverse possession, or to prevent the operation of the statute of limitations, was merely a verbal statement; Daniels stating that he did not want anything that did not belong to him, and that he would do right about it if and when the survey was made, but refusing to join in having one made, and refusing to move his fence.
At the conclusion of the plaintiff's evidence, the defendant moved to strike such evidence and enter judgment in defendant's favor, which motion was overruled; and, at the conclusion of the whole testimony, the defendant asked for a peremptory instruction, which was also refused.
The first point raised by the appellant is that the county court had no jurisdiction to try the suit, that it is a court of special and limited jurisdiction, and that all jurisdictional facts must affirmatively appear from the record, and that the land was not valued in the declaration, and the proof did not show that the value of the land was less than one thousand dollars, which is the maximum limit of value which may be tried originally in a county court.
There was no plea to the jurisdiction at the time of the trial, and nowhere during the trial was the point raised that the county court did not have jurisdiction.
We have recently held in the case of Griffith v. Swinney, 132 So. 750, that, where the pleadings do not raise the question, and it is not raised during the trial until after the verdict of the jury, it is cured by the statute of jeofails.
We also think the county court is not a court of special and limited jurisdiction within the rule stated. It is true the jurisdiction is limited in amount, but the county court is a court of record, and, except in cases arising from a justice of the peace court, the county court is governed by the pleadings and practices of the chancery or circuit courts, as the case may be. A justice of the peace court and the circuit court, and, in fact, all the courts of this state, are limited in some respects in their jurisdiction. The statute, however, gives the county court jurisdiction, concurrent with the circuit courts and justice of the peace courts, of all causes where the value of the property involved, or the amount claimed, does not exceed one thousand dollars. It is not a court given jurisdiction to specifically try certain causes upon the existence of certain conditions or in a certain and specific manner. 15 C.J. 718, section 2; 7 R.C.L. 974.
We think, within the rule contended for, the county court is a court of general jurisdiction, and jurisdictional facts will be presumed in favor of the judgment, where the proof is silent.
On the second proposition, we think the proof clearly shows that Daniels was in possession of the lot, exercising ownership over it, and claiming the right to it from 1915 to the bringing of this suit, which was over ten years after the erection of the fence and the beginning of the acts of ownership over the strip of land involved. It does not matter in such case that the line claimed as being the real line is not, in fact, such, and that the owner believes that he is occupying the land within the calls of his deed. It is the fact of adverse possession and a claim of ownership for the statutory period that confers title, and not the real fact as to the existence of the line, nor does the fact of the payment of taxes by the plaintiff, during this period, on the land by proper description, alter the defendant's rights of adverse possession. Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Greer v. Pickett, 127 Miss. 739, 90 So. 449; Schuler v. McGee, 127 Miss. 873, 90 So. 713; Evans v. Harrison, 130 Miss. 157, 93 So. 737.
The appellee (Jordan) relies strongly upon the statements made by Daniels that he was willing to do what was right, and did not want anything except what was his own, made prior to the running of the statute, as operating to stop the running of the statute, or to estop Daniels pleading the statutory limitations.
We do not think these verbal statements are sufficient. There must be either a suit during the time before the expiration of the ten-year period or there must be a physical interruption of the adverse possession, or some unequivocal asserting of the claimant's rights, which would enable the person in possession to institute legal proceedings in trespass or otherwise to prevent acts of ownership.
We reiterate what this court said in McIntyre v. Harvey, 158 Miss. 16, 128 So. 572, 573: "We think the majority of the courts and the sounder reason hold that there must be something more than a protest to interrupt the running of a claim of right followed by actual users; there must be at least an interruption of the use . . . by the opposing person who opposes such claim. Where another is asserting a claim of right and using a passageway under such claim a party must do something more than merely verbally protest; there must be a physical interruption or a court proceeding or some unequivocal act of ownership which interrupts the exercise of the right claimed and being used by the opposite parties."
We are therefore of the opinion that the court below should have granted the peremptory instruction, and the judgment will be reversed and judgment entered here for the appellant.
Reversed and rendered.