Opinion
No. 32924.
January 3, 1938.
1. ADVERSE POSSESSION.
A deed from purchaser at tax sale of 20 acres in the "northeast" part of a section was insufficient to constitute even color of title to land, involved in suit to cancel claim of title, which was situated in "northwest" portion of such section.
2. ADVERSE POSSESSION.
A claim of defendants of legal title by inheritance as heirs of man and wife from whom complainants established a perfect chain of record title by deeds and mesne conveyances was wholly insufficient to constitute even color of title, in suit to cancel claim of title of defendants.
3. ADVERSE POSSESSION.
Rule that one making deed cannot, by remaining in possession, claim by adverse possession in hostility to his own deed has been modified to extend only that he may bring notice of adverse claim to attention of grantee and henceforth claim the property deeded by adverse possession.
4. ADVERSE POSSESSION.
Color of title, coupled with actual possession of a part of land, constitutes constructive possession of the whole.
5. ADVERSE POSSESSION.
Where there is no color of title by parol gift, deed, or other writing, adverse possession gives title only to land actually and continuously used, cultivated, or occupied.
6. ADVERSE POSSESSION.
In suit to cancel claim of title of defendants to northwest portion of certain section, evidence showing that deed to defendants covering land in another part of such section was executed April 15, 1930, pursuant to grantor's purchase at tax sale April 2, 1928, which was within ten years of suit, and that original owners and common source of title had conveyed land prior to their death and did not bring any notice to their grantees of an adverse claim, showed that defendants were not claiming by adverse possession under any color of title whatever for the statutory period, and was insufficient to defeat complainants' record title.
7. ADVERSE POSSESSION.
Where certain defendants cultivated and claimed by continuous adverse possession for more than 10 years certain patches of land in severalty without recognizing in any manner the title of complainants, but it was not shown what particular area was so used, cultivated, and claimed by them, and there was no evidence from which court could determine their location, defendants did not prove title by adverse possession.
APPEAL from the chancery court of Clarke county. HON. A.B. AMIS, SR., Chancellor.
W.F. Latham, of Quitman, for appellants.
While these appellants have proven their title by adverse possession the Chancellor in his opinion and holding has erroneously placed upon them in trying the case the burden of proving their title and because of his finding of a failure on the part of the appellants to prove a perfect title he proceeds to cancel their claim of title and award relief to complainants upon a theory foreign and contrary to their original and amended bills of complaint.
We think it unnecessary to cite any authority to support the statement that complainants can have relief only on the case made by their bill of complaint; that they are bound by their pleadings.
U.S. Cas. Co. v. Malone, 126 Miss. 288, 88 So. 709; Griffith's Chancery Practice, sec. 565-66.
The holding of the court in this case is manifestly contrary to and in opposition to the well established rule of law, that the complainant in an action to quiet title must succeed upon strength of his own title and not on the weakness of that of his adversary; that as a condition to relief it is thoroughly settled by repeated decisions of this court that he must show a perfect legal or else a perfect equitable title and he cannot recover on the weakness or even on the entire want of title on the part of his adversary, that he must prevail on his own title regardless of whether defendants' title be invalid or even non-existent.
Pickens v. Harper, S. M. Ch. 539-40; Wilkinson v. Hiller, 71 Miss. 679, 14 So. 442; Stevens Lbr. Co. v. Hughes, 32 So. 769; Toulmin v. Heidelberg, 32 Miss. 268; Soria v. Stowe, 66 Miss. 615, 6 So. 317; Peterson v. Kittredge, 65 Miss. 38, 3 So. 65, 5 So. 824; Chiles v. Gallagher, 67 Miss. 413, 7 So. 208; Goff v. Avent, 122 Miss. 86, 84 So. 134; Gilchrist-Fordney Co. v. Thigpen, 114 Miss. 182, 74 So. 823; Hale v. Nielson, 112 Miss. 291, 72 So. 1011; Calvert v. Mathers, 149 Miss. 671, 115 So. 780; Burnett v. Bass, 152 Miss. 517, 120 So. 456.
The court's findings on the facts are not sustained by the evidence and are against the overwhelming weight of the evidence.
There was privity of estate and connection of title between all of the appellants as heirs at law of John and Cassie Calvert. They were tenants in common and so recognized each other. It therefore follows that their entry and occupation of the property inured to each other.
1 Am. Jur., Adverse Possession, pars. 31 and 153.
A.B. Case, of Waynesboro, for appellees.
This matter resolves itself into a question of fact, and a decision by the trial court will not be disturbed unless the trial court is manifestly wrong.
Miss. Chancery Practice, sec. 674.
Without color of title adverse possession gives title only to land actually and continuously occupied.
Dedeaux v. Bayou Lbr. Co., 73 So. 53.
The defendants have never had color of title in this matter, and rely on a deed of 1930 which is from a tax sale made less than ten years from this date.
These complainants show a perfect record title, a perfect record of possession from their grantors, and in fact nothing mars the claim of defendants except some hazy, nonsensical claims from some heirs who have an idea that their ancestor left some property from whom they may inherit.
The complainants carried the burden of the proof, and the record so discloses. We respectfully submit that the cause should be affirmed.
This appeal is from a decree of the chancery court of Clarke county, canceling the claim of title of appellants to certain land, and also directing the issuance of a writ of possession in favor of appellees and declaring them to be the legal owners of the land in controvery.
All parties to the suit claim title through John Calvert and wife, Cassie Calvert, as the common source. The proof establishes a perfect chain of record title from such common source by deeds of conveyance and mesne conveyances until the same became vested in appellees. As against this legal title, appearing of record without material defect or irregularities, the appellants claim the legal title to the land both by inheritance as heirs at law of the Calverts and by deed of April 15, 1930, from one S.B. Kirkland made pursuant to a purchase by him of the land at a tax sale on April 2, 1928, for "20 acres in the NE part of section 3, township 10, range 6 west in Clarke County, Mississippi," whereas the land involved in this suit is situated in the northwest portion of said section, township, and range. Hence, these two claims are wholly insufficient, as will appear from the foregoing statement, to constitute even color of title.
Appellants also claim the land by adverse possession for more than the statutory period of ten years necessary to confer title. However, there is no proof that either John Calvert or his wife asserted any claim to the land adversely to their grantees subsequent to the execution of their deeds of conveyance, or that they, prior to the death of the survivor of them, gave any notice or knowledge of their claim, if any they made, to their vendees during their continuance in possession, which was until the year 1917.
The rule to the effect that when a person makes a deed of conveyance of land he cannot by remaining in possession claim by adverse possession in hostility to his own deed has been modified or departed from by our court to the extent, and to the extent only, that he may bring notice or knowledge of such adverse claim to the attention of his vendee, and henceforth claim the same by adverse possession. The record fails to show that this was done by the grantors in the present case.
It is shown, however, that from and after the death of John Calvert and his wife some of the appellants used, cultivated, and claimed as their own in severalty, for more than the statutory period of ten years, without paying or agreeing to pay any rent, small patches of land scattered about over the original Calvert tract, while other appellants paid rent to the predecessors in title of the appellees at one time or another on small patches used and cultivated by them. As to those who cultivated and claimed by continuous adverse possession for more than ten years certain patches of the land in severalty, without recognizing in any manner the title of the appellees, it is not shown as to what area in particular was so used, cultivated, and claimed by them, and there was no evidence from which the court below could determine their location.
All the land was placed under fence by John Calvert and has continued to so remain, and while color of title coupled with actual possession of a part of the land would constitute constructive possession of the whole it is equally true that without color of title by parol gift, deed, or other writing, adverse possession gives title only to the land actually and continuously used, cultivated, or occupied. Dedeaux v. Bayou Delisle Lumber Company, 112 Miss. 325, 73 So. 53.
The deed from S.B. Kirkland to the appellants, which was for land other than that involved in this suit, was not executed until April 15, 1930, pursuant to his purchase at the tax sale of April 2, 1928, and in view of the further fact that the Calverts, who were the original owners and common source of title, had conveyed the land prior to their death, the appellants have not claimed under any color of title whatever for the statutory period. Therefore, the proof of adverse possession on the part of any of the appellants was not sufficient, for the reasons hereinbefore stated, to defeat the record title, and the decree in favor of the appellees should be affirmed.
Affirmed.