Opinion
No. 36259.
January 13, 1947. Suggestion of Error Overruled March 24, 1947.
1. HUSBAND AND WIFE.
Where oral agreement for partition of realty was valid, its later execution in pais by the cotenants required no assent by a cotenant's wife who married cotenant after the oral agreement.
2. TENANCY IN COMMON.
One operating lands as a cotenant of those to whom he is related by family ties, and who, as their agent, manages a common property for their mutual benefit, must show by clear and convincing testimony the acquisition of part thereof by adverse possession.
3. TENANCY IN COMMON.
Evidence sustained chancellor's finding that use made by son of residence on plantation which mother, son and daughter owned as tenants in common, as his residence while a general manager of the plantation, was not adverse as to the mother and daughter.
APPEAL from the chancery court of Sunflower county. HON. J.L. WILLIAMS, Chancellor.
Holcomb Curtis, Brocato Lowrey, and Maynard, FitzGerald Maynard, all of Clarksdale, and Watkins Eager, of Jackson, for appellant.
The appellant was entitled to recover under the doctrine of adverse possession.
Crowder et al. v. Neal, 100 Miss. 730, 57 So. 1; Kersh et al. v. Lyons et al., 195 Miss. 598, 15 So.2d 768; Shepherd v. Cox et al., 191 Miss. 715, 1 So.2d 495, 4 So.2d 217; Snowden McSweeney Co. v. Hanley et al., 195 Miss. 682, 16 So.2d 24; Smith et al. v. Anderson et al., 193 Miss. 161, 8 So.2d 251; Barner et al. v. Lehr et al., 190 Miss. 77, 199 So. 273; Evans et al. v. Shows, 180 Miss. 518, 177 So. 786; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Cummins et al. v. Dumas, 147 Miss. 215, 113 So. 332; Schuler et al. v. McGee, 127 Miss. 873, 90 So. 713; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Meridian Land Industrial Co. v. Ball, 68 Miss. 135, 8 So. 316; 1 Am. Jur. 808, Sec. 33.
The appellant was entitled to recover under the doctrine of equitable estoppel.
Kersh v. Lyons, supra; Leggett v. Norman, 192 Miss. 494, 6 So.2d 578; Roberts v. Bookout et al., 162 Miss. 676, 139 So. 175; Cummings v. Midstates Oil Corp., 193 Miss. 675, 9 So. 648; Staton v. Bryant, 55 Miss. 261; 19 Am. Jur. 809 et seq.
The appellant was entitled to recover under the doctrine of mutual mistake and reformation of instruments.
Kersh v. Lyons, supra; Brimm v. McGee, 119 Miss. 52, 80 So. 379; Birchett v. Anderson et al., 160 Miss. 144, 133 So. 129; Crowder et al. v. Neal, supra; 53 C.J. 1012.
The property was a homestead at the time of the execution of the partition deed, and the appellant not joining in said conveyance, no title to the disputed property passed.
Chapman v. White Sewing Machine Co., 78 Miss. 438, 28 So. 735; Young v. Ashley, 123 Miss. 693, 86 So. 458; Jones et al. v. Lamensdorf et al., 175 Miss. 565, 167 So. 624; Fairley v. Howell, 159 Miss. 668, 131 So. 109; Oatis et al. v. Mingo, 199 Miss. 896, 26 So.2d 453; Code of 1942, Sec. 317.
The court erred in holding that the defendant, J.D. Wilkins, was an innocent purchaser for value without notice and the use was permissive.
Fairley v. Howell, supra; Itawamba County v. Sheffield, 195 Miss. 359, 13 So.2d 649.
The court erred in excluding the testimony of declarations of the occupants and the holder of the legal title and their predecessors and evidence of the location of the reputed line.
Meridian Land Industrial Co. v. Ball, supra; Breland v. O'Neal, 88 Miss. 449, 40 So. 865; Kersh v. Lyons, supra; Griffith's Mississippi Chancery Practice, Secs. 581, 582, 583, 584; 2 C.J.S. 828 et seq.
Neill, Clark Townsend, of Indianola, for appellee, J.D. Wilkins.
The evidence for appellant was insufficient to sustain a recovery by her under the doctrine of mutual mistake and reformation of instruments. To reform a deed so as to constitute a deed intended to be executed, proof must show that mistake was mutual and should clearly show parties' real agreement and understanding.
Wall et al. v. Wall et ux, 177 Miss. 743, 171 So. 675; Seymour v. Lamb, 185 Miss. 37, 185 So. 824-825; Norton v. Coley, 45 Miss. 125; Watson v. Owen, 142 Miss. 676, 107 So. 865; Jones v. Jones, 88 Miss. 784, 41 So. 373; Lamar v. Lane, 170 Miss. 260, 154 So. 709; 45 Am. Jur. 631-632, 634, 636, 652-653.
Possession of one of who enters on land with the consent of the owner is not adverse to the owner, and cannot ripen into a valid title by lapse of time.
Adams v. Guice, 30 Miss. 397.
Any permissive holding by one claiming title to land by adverse possession should be deducted in computing time to acquire title.
Meyer v. Sea Food Co., 136 Miss. 868, 101 So. 702.
Any instrument constituting mere color of title to property is wholly ineffectual as against record legal title thereto, in absence of adverse possession of property for period required by law.
Cook v. Farley et al., 195 Miss. 638, 15 So.2d 352.
One seeking to have title to a tract of land cancelled could not rely on alleged right to hold the land by adverse possession in absence of allegation or proof that he was ever in exclusive possession of the land.
Ates et al., v. Ates, 189 Miss. 226, 196 So. 243.
The duty of one cotenant to another constitutes a trust relation which disqualifies one from acquiring interest adverse to the other in the property.
Clausell v. Riley, 188 Miss. 647, 196 So. 245; Smith v. Cunningham et al., 79 Miss. 425, 30 So. 652.
A parol agreement between co-parceners, for the partition of lands held by them as such, when carried out by the parties taking possession in severalty, according to the agreement, is valid and effectual to conclude the rights of the others against those holding in severalty.
Wildey v. Bonney's Lessee, 31 Miss. 644; City of Natchez v. Vandervelde et al., 31 Miss. 706; Pipes v. Buckner, 51 Miss. 848; Archer v. Helm, 69 Miss. 730, 11 So. 3; Minor v. Interstate Gravel Co., 130 Miss. 553, 94 So. 3.
Beverly C. Adams, of New Orleans, La., for appellee, Federal Land Bank of New Orleans.
The appellee, the Federal Land Bank of New Orleans, in this case has found itself in an enviable position in that both of the principal parties contend that the land and building in controversy should be and is included in the mortgage for which each is liable to this appellee. There is no doubt but that the bank thought the building involved was being taken as security for the loan made to R.C. Fox, Jr., and the appellant Mrs. Montyne M. Fox. This is evidenced by the setting forth in the application for this loan that there was a main dwelling on the property valued at $12,000.00 and the requirement of the bank that insurance be carried on the dwelling plus the additional fact that the application of Mrs. Cora B. Fox (offering as security the land now owned by appellee J.D. Wilkins) indicated that there was no main dwelling on the security offered and that no insurance was required. On the other hand, there is no doubt that the land described in the application and mortgage of Mrs. Cora B. Fox (now owned by J.D. Wilkins) included the plot on which the main dwelling in controversy is located and was located at the time the two above mentioned loans were made.
Argued orally by Pat D. Holcomb and Chester H. Curtis, for appellant, and by Arthur B. Clark, for appellees.
Appellant filed bill to remove the cloud upon her asserted title by appellee's claim of ownership. The land involved is a tract of 4.60 acres constituting part of the Fox Plantation of 1607 acres theretofore owned by R.C. Fox, Sr. Appeal is from decree dismissing the bill.
Both parties claim from the common source. The litigated tract is situated upon lands now owned by appellee Wilkins but had been occupied by appellant and her husband as their home since their marriage in 1925 up to the date of the husband's death in 1938.
The entire plantation was conveyed by R.C. Fox, Sr., in 1920 to R.C. Fox, Jr. (husband of appellant), his wife Cora, and his daughter Ellen Wilkins (wife of appellee), as tenants in common. There was but one residence on the entire plantation and it was occupied by R.C. Fox, Jr., who managed the whole property for the common benefit of all.
It is undisputed that the residence thereon was remodeled and repaired by the son who paid the taxes and insurance and repairs thereon, and it was understood by citizens in the community to be his residence. The evidence authorized the chancellor to find that a later remodeling of the home was paid for by the son out of proceeds from the operation of the plantation. There were other assertions of claim thereto by R.C. Fox, Jr., such as procuring homestead exemption thereupon, and his identification of the residence as being upon his own land in an application for a loan. An assertion that his mother, who owned the adjoining land upon which the residence and the disputed tract is actually located, made application at the same time for a similar loan, wherein no residence thereon was indicated, is somewhat undermined by the fact that the son procured and prepared both applications.
In 1925 partition of the plantation was orally agreed upon, whereby R.C. Fox, Jr., who was allotted, with other lands, the W 1/2 of NE 1/4 of Sec. 35, T. 20, R. 4 West, in Sunflower County; and Cora Fox, his mother, received the E 1/2 thereof in September 1926. Partition deed was executed by the parties in compliance with the verbal agreement. The deed contained the following preamble "whereas we have long since by verbal agreement divided said land among ourselves and each of us has agreed to accept one of said parts as their share of said lands . . ." It was acknowledged upon the day the application for loan was made by R.C. Fox, Jr. The immediate motive for making permanent record of the agreed partition seems to have been the requirement that a total loan of $60,000 upon the entire plantation be broken up into three separate loans to the respective co-parceners.
Appellee Wilkins acquired title to the E 1/2 of NE 1/4 of Sec. 35 from his mother-in-law. Appellant derived title by deed from her husband to the W 1/2 thereof. All the original grantees from R.C. Fox, Sr., were dead at the time suit herein was filed.
We encounter first the contention that appellant, wife of R.C. Fox, Jr., did not as his wife sign the partition deed. R.C. Fox, Jr., had resided upon the disputed tract as a tenant in common with the other original grantees for about five years prior to his marriage to appellant, and the verbal agreement of partition was made prior to her marriage. Such oral agreement was valid and its later execution in pais by the cotenants required no assent by appellant. Wildey v. Bonney's Lessee, 31 Miss. 644; Pipes v. Buckner, 51 Miss. 848; Graves v. Bowers, 2 Miss. Dec. 374. It is interesting to notice that if appellant's assertion of a veto power over conveyance of the land as her homestead were upheld, her position as a continuing cotenant would confront her.
We need not sustain by citation authorities which compel one operating lands as a cotenant of those to whom he is related by family ties, and who, as their agent, manages a common property for their mutual benefit, to show by clear and convincing testimony the acquisition of a part thereof by adverse possession. To this basis, she is finally committed, and we find no justification for overturning the finding of the learned chancellor that the use made by R.C. Fox, Jr., of this property, which was the only residence available for his use as general manager, was insufficient to meet the test. General repute of its status as his place of residence was adequately shown in spite of exclusion of some corroborative testimony. Such assertions, most of which were made by R.C. Fox, Jr., even when aided by a repute which need have implied no more than an inference from mere occupancy, do not of necessity elevate such indicia to the degree of a hostile and adverse occupancy, especially in view of the history of the title and the relationship of the parties.
Affirmed.
Sydney Smith, C.J., did not participate in this decision.