Summary
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.
Summary of this case from Chatman v. CarterOpinion
No. 35453.
December 6, 1943.
1. ADVERSE POSSESSION.
Record owner and her predecessors in title were entitled to have their possession treated as coextensive with the calls of their deeds which constituted the record title, in absence of an actual, adverse, and continuous use or occupancy by someone else.
2. ADVERSE POSSESSION.
Adverse possessor and his predecessors in title, who were without color of title by parol gift, deed, or other writing to any part of land in dispute, could claim title by adverse possession to such portion only as was actually and continuously used, cultivated, or occupied, adversely to the owner of record title.
3. ADVERSE POSSESSION.
Evidence sustained finding that land claimed by adverse possessor had been pastured and cultivated alternately in such manner and for the required period of time to constitute actual and continuous use in manner required to confer title by adverse possession as against holders of record title for more than thirty-one years and as against all persons in favor of adverse possessor for more than ten years prior to filing of suit.
4. ESTOPPEL.
Where disputed area was mutually understood by grantor and grantee to be a part of consideration for which grantee executed purchase-money mortgage and purchase price had been fully paid, neither grantor nor her heirs could successfully assert any valid claim to that area, notwithstanding parties did not have knowledge of fact that grantor did not have record title to the disputed area.
5. DEEDS.
The contemporaneous construction by grantor and grantee evidenced by giving of possession will fix true meaning and intent of the parties.
6. ADVERSE POSSESSION.
The fact that adverse claimant served as a chain bearer some thirty-odd years previously when a surveyor was alleged to have located true section line did not indicate that adverse claimant could not have entered possession of disputed area in honest belief that it was part of land described by governmental subdivision in his deed.
7. ADVERSE POSSESSION.
Where title to disputed area had been acquired by adverse possession at time of survey, it was immaterial as to where surveyor may have located true section line.
8. ADVERSE POSSESSION.
Testimony regarding reputation and tradition in community as to fence, which ran on side of disputed area, being the dividing line between two properties, was competent as evidence of the notoriety of the claim of adverse possession thereto and of fact that the disputed area was within the long established enclosure of adverse claimant's place.
9. APPEAL AND ERROR.
Where record owner and her mineral lessees had lost disputed area to adverse claimant's grantor and her predecessors in title prior to date of deed to claimant and had not re-acquired it either by conveyance or adverse possession, record owner and her mineral lessees had no interest in question whether court properly allowed amendment of pleading to conform to proof regarding understanding of grantor and adverse claimant in regard to the disputed area being part of land conveyed.
10. APPEAL AND ERROR.
Grantor's heirs and their mineral lessees could not successfully maintain that they were unduly prejudiced by allowance of amendment of pleading to conform to proof regarding mutual understanding of grantor and grantee in regard to disputed area being part of land conveyed and refusal to grant continuance until issue of mutual intent could be met by proof, where it was not contended that they would have been able at later date to offer contradictory evidence.
11. CONTINUANCE.
Where chancellor was not advised by those requesting a continuance that there was any probability of contradictory proof being made at a later date, he could not be held in error for denying motion for continuance.
APPEAL from chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Howie, Howie McGowan, of Jackson, and John H. Holloman, of Columbus, for appellants, Mrs. Mary Edwards Kersh, et al.
Adverse possession is qualified by the relation of the parties.
Bentley v. Callaghan, 79 Miss. 302, 30 So. 709; Alabama State Land Co. v. Matthews (Ala.), 53 So. 174.
One asserting adverse possession has the burden of proof.
Neal v. Newburger Co., 154 Miss. 691, 123 So. 861.
The very terms of the mortgage designated Stutts' possession contractually, and hence permissive.
Possession must be adverse and hostile in its inception, and so maintained throughout.
Dixon v. Cook, 47 Miss. 220; Gordon v. Sizer, 39 Miss. 805; Alexander v. Polk, 39 Miss. 737; Magee v. Magee, 37 Miss. 138; Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Metcalfe v. McCutchen, 60 Miss. 145; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Jacobi v. Jacobi, 345 Ill. 518, 178 N.E. 88; Pullman Car Mfg. Co. v. Stroth, 349 Ill. 492, 182 N.E. 399; 2 C.J. 75, Sec. 57.
The relation of mortgagor and mortgagee, especially in purchase-money mortgage, is the same as that between vendor and vendee in executory contract for sale.
Moring v. Ables, 62 Miss. 263; Benson v. Stewart, 30 Miss. 49; McClanahan v. Barrow, 27 Miss. 664; Stephens v. Johnson, 108 Miss. 465, 66 So. 973; Lowery v. Peterson, 75 Ala. 109; Moses et al. v. Johnson (Ala.), 7 So. 146; 8 Thompson on Real Property 520, Sec. 4579.
Stutts, as purchase-money mortgagor to Mrs. Edwards, was in position of tenant or quasi-tenant to Mrs. Edwards, and hence under disability to claim adversely any of her lands.
Meridian Land Industrial Co. v. Ball, 68 Miss. 135, 8 So. 316; Hardin v. Boyd, 113 U.S. 756, 5 S.Ct. 571, 28 L.Ed. 1141; Coldcleugh v. Johnson, Admr., 34 Ark. 312; Partridge v. Bere, 5 Barnwell Alderson 604; Lamar v. Johnson, 16 Ala. App. 648, 81 So. 140; Potts v. Coleman, 67 Ala. 221; Brown v. Huey, 103 Ga. 448, 30 S.E. 429; Long v. Kansas City Stock Yards, 107 Mo. 298, 17 S.W. 656, 28 Am. Rep. 413; Howard v. McKenzie, 54 Tex. 171; Jones on Mortgages (8 Ed.), Sec. 824; Tiffany's Landlord and Tenant, p. 1631, Sec. 13, par. 6; 2 C.J. 87, Sec. 75; 41 C.J. 603, Sec. 564, par. 2; Note, 35 C.J. 1253, Sec. 617.
There must be actual ouster and disseizin followed by hostile possession.
McCaughn v. Young, supra; Wilmot v. Yazoo M.V.R. Co., 76 Miss. 374, 24 So. 701; Dean v. Tucker, 58 Miss. 487; Davis v. Bowmar, 55 Miss. 671; Rothschild v. Hatch, 54 Miss. 554; Adams v. Guice, 30 Miss. 397; Green v. Mizelle, 54 Miss. 220; 2 C.J. 122, Sec. 206.
The period of permissive holding must be deducted.
Meyer v. Sea Food Co., 136 Miss. 868, 101 So. 702.
Generally, the mortgagor cannot set up adverse possession against the mortgagee.
Bentley v. Callaghan, supra; Seymour v. Lamb, 185 Miss. 37, 185 So. 824; 1 R.C.L. 748, Sec. 70; 41 C.J. 489, Sec. 411.
Even in the absence of trust, vendee, entering lands under his grantor's deed, cannot set up adverse possession of other lands of his vendor, entered by mistake or fraud, where he goes into possession under the said deed.
Farish et al. v. Coon et al., 40 Cal. 33; 2 C.J.S. 673, Sec. 121, par. 3.
Maintenance of the inclosure by Stutts did not affect his relation with the appellants, heirs of Mrs. Carrie Edwards.
Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Evans v. Shows, 180 Miss. 518, 177 So. 786; Ivey v. Beddingfield et al., 107 Ala. 616, 18 So. 139.
The court erred in permitting the complainants to amend their pleadings on the fourth day of the trial so as to make a reformation suit.
There can be no reformation of this deed.
Goff v. Avent, 122 Miss. 86, 84 So. 134; Anderson-Tully Co. v. Campbell, 193 Miss. 790, 10 So.2d 445; Sea Food Co. v. Meyer, 144 Miss. 96, 109 So. 674; McCaughn v. Young, supra.
Proof of intent to convey must be shown beyond reasonable doubt before reformation may be had.
Seymour v. Lamb, supra; Watson v. Owen, 142 Miss. 676, 107 So. 865; Progressive Bank of Summitt v. McGehee, 142 Miss. 655, 107 So. 876; Rogers v. Clayton, 149 Miss. 47, 115 So. 106; Harrington v. Harrington, 2 How. 701.
Lands gained by adverse possession can only be divested by sale or another adverse possession.
Scottish American Mortgage Co. v. Butler, 99 Miss. 56, 54 So. 666, Ann. Cas. 1913C, 1236; Fant v. Williams, 118 Miss. 428, 79 So. 343; Lowi v. David, 134 Miss. 296, 98 So. 684; Weems v. Mayfield, 75 Miss. 286, 22 So. 892.
One cannot have reformation of a deed in order to get a better bargain.
Burnes v. Burnes, 137 F. 781, affirming 132 F. 485.
These appellants, the Edwards heirs, are entitled to this land and all the proceeds from this well. The appellees are not entitled to moneys expended. They are entitled to a judgment in this court.
Cole v. Johnson, 53 Miss. 94; Holmes v. McGee, 64 Miss. 129, 8 So. 169; Plant v. Shryock, 62 Miss. 821; Learned v. Corley, 43 Miss. 687; Gaines v. Kennedy, 53 Miss. 103; Pass v. McLendon, 62 Miss. 580; Thomas v. Thomas, 69 Miss. 564, 13 So. 666.
These appellants, heirs of Mrs. Carrie Edwards, respectfully submit that they are entitled to a decree in this court, awarding this parcel of land to them and the proceeds from the well thereon. George Stutts was in no position to set up adverse possession against them. He entered under a relationship trust; he was ignorant of the existence of this parcel of land, and cannot hold the main body of land adversely, and, therefore, cannot hold any adjunctive strip of land, of the existence of which he was ignorant. He entered amicably and peaceably and with full recognition of Mrs. Carrie Edwards' right and title to the land. He so testified himself when he said, "It was already hers."
So far as adverse possession to any adjunctive strip of land was concerned, George Stutts was in the position of quasi-tenant and could not assert it against Mrs. Carrie Edwards until the relation was terminated in 1935, and since less than ten years have elapsed since that time he cannot claim the land. There was never any change in his attitude until the surveyors for the Sinclair-Wyoming Oil Company located the strip of land in 1940 or 1941, according to his own testimony. He had previously leased his land under the exact description as contained in his deed of purchase from Mrs. Carrie Edwards. This lease passed to the Ginthers et al. When they attempted to incorporate this strip in their lease he promptly and successfully defended on the ground that he never intended to incorporate it in said lease, the decree in said cause being in this record and previously referred to. He is certainly now estopped to make any claim to the same on that ground.
Further, the overwhelming weight of the evidence shows that most of this strip was in waste land or shrubbery and lying out and George Stutts never actually used it for any continued consecutive period of ten years, if he used it at all. He can only cling to the fact that there was a common inclosure around it, and the strip was in this inclosure with his other lands. As previously pointed out, this cannot help him against these appellants, because their ancestors built the fence more than half a century ago.
Lastly, equity is certainly on the side of these appellants, the Edwards heirs. The original land purchased by George Stutts, as shown before, was worth many millions of dollars. He certainly has no right in equity and good conscience to any more lands, and this is all that his claim for reformation amounts to.
So, we respectfully submit that the cause ought to be reversed and a decree entered in this court awarding this land and the proceeds therefrom to these appellants, the heirs of Mrs. Carrie Edwards.
H.G. Gwinnup, of Jackson, for appellants, Sinclair Wyoming Oil Company, Mrs. Margaret Fouche Sorrells et al.
This is not a boundary line case under the pleadings, but is strictly an adverse possession case.
Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Evans v. Shows, 180 Miss. 518, 177 So. 786; Annotation 69 A.L.R. 1430 et seq.
The original government survey is the true boundary line between government sections.
Buckwalter Lumber Co. v. Wright, 159 Miss. 470, 132 So. 443; May v. Baskin, 12 Smedes M. (20 Miss.) 428.
All parties at interest have known where the section lines are located for more than thirty-one years, and are not entitled to an "honest belief" otherwise.
Tripp v. Bagley (Utah), 276 P. 912, 69 A.L.R. 1417.
The land in controversy has not been completely enclosed by a fence for a period of ten years.
The record owner took possession of this land in January 1920 and was never ousted of such possession until 1937.
See McCaughn v. Young, 85 Miss. 277, 37 So. 839; Wilmot v. Yazoo M.V.R. Co., 76 Miss. 374, 24 So. 701; Dean v. Tucker, 58 Miss. 487; Davis v. Bowmar, 55 Miss. 671; Rothschild v. Hatch, 54 Miss. 554; Adams v. Guice, 30 Miss. 397; Green v. Mizelle, 54 Miss. 220; Bullock v. Greer, 181 Miss. 190, 179 So. 264; Evans v. Shows, supra; Lawrence v. Byrnes, 188 Miss. 127, 193 So. 622; Neal v. Newburger, 154 Miss. 691, 123 So. 861.
Where there are no equities between the parties, the law and the legal title will prevail.
19 Am. Jur. 337, Sec. 487.
Where a tract of land is claimed by adverse possession, but such possession is not held under color of title, its boundaries cannot be extended by construction beyond the land actually occupied.
Connell v. Norment et al., 102 Miss. 284, 58 So. 222.
Evidence that it was generally known in the vicinity of the land that the claimant or his grantor claimed title thereto is admissible to show notoriety of claim of title but not to show title itself or notoriety of occupation.
2 C.J. 275, Sec. 616.
There is no such thing as constructive notoriety of occupation to be inferred from notoriety of claim. It is actual, notorious occupation. It is not proved by reputation no matter how extensive and notorious. It must be proved by the character of the occupation itself.
Greer v. Pickett, 127 Miss. 739, 90 So. 449; Schuler v. McGee, 127 Miss. 873, 90 So. 713; Clark v. Clark, 92 Me. 225, 42 A. 398.
Henry Barbour, Campbell Campbell, and Miss Ruth Campbell, all of Yazoo City, for appellees.
The relationship of mortgagor and cestui qui trust between George Stutts and Mrs. Carrie B. Edwards did not prevent Stutts' adverse possession of the strip in question, but rather expressly recognized and ratified the adverse holding and claim of the fee simple title.
Peeples v. Boykin, 132 Miss. 359, 96 So. 177; Seymour v. Lamb, 185 Miss. 37, 185 So. 824; Breland v. O'Neal, 88 Miss. 449, 40 So. 865; Galloway v. Inglis, 138 Miss. 350, 103 So. 147; Gee v. Pritchard, 2 Swanst. 402, 414, 36 Reprint 670; Gibbs v. Mortan, 9 Idaho 100, 72 P. 733; Columbian A.C. v. State (Ind.), 52 Am. St. Rep. 407, 29 L.R.A. 727; Harrigan v. Gilchrist, 121 Wis. 127, 335, 99 N.W. 909; Conard v. Atlantic Ins. Co., 1 Pet. 386, 7 L.Ed. 189; Smith v. Orton, 131 U.S. lxxv, Appx., 18 L.Ed. 62; Bronson v. Kinzie, 1 How. 311, 11 L.Ed. 143; McAllen v. Raphael (Tex.), 96 S.W. 760; Messer v. Union Cent. Life Ins. Co. (Ala.), 148 So. 852; Phillips Collieries Co. v. Thompson, 162 F. 23; Florida Land Investment Co. v. Williams, 84 Fla. 157, 92 So. 876, 26 A.L.R. 171; Pharis v. Leachman, 20 Ala. 662; Au Sable River Boom Co. v. Sanborn, 36 Mich. 358; Thornley v. Andrews (Wash.), 1 L.R.A. (N.S.) 1036; Code of 1930, Secs. 2128, 2152; 21 C.J. 172, par. 150; 37 C.J. 333, Sec. 51; 36 Am. Jur. 748, Sec. 123; 36 Am. Jur. 818, Sec. 256; Annotations at 26 A.L.R. 173 and L.R.A. 1918B, 772.
The deed of trust did not cover or affect the disputed strip; hence, there was no mortgage or trust relationship as to that tract.
Goff v. Avent, 122 Miss. 86, 84 So. 134; Moore v. Crump, 84 Miss. 612, 37 So. 109; Anderson-Tully Co. v. Campbell, 193 Miss. 790, 10 So.2d 445; Seafood Company v. Myer, 144 Miss. 96, 109 So. 674; Pan-American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803; Enochs Flowers v. Roell, 170 Miss. 44, 154 So. 299; Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Haley v. Martin, 85 Miss. 698, 38 So. 99; Fulton v. McAfee, 6 Miss. 751, and 41 U.S. (16 Pet.) 149, 10 L.Ed. 918; Batson v. Crorow Hardwood Co. (Miss.), 119 So. 505; Herod v. Robinson, 149 Miss. 354, 115 So. 40; McManus v. Wilson, 138 Miss. 1, 102 So. 543; Morrison v. Casey, 82 Miss. 522, 34 So. 145; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; Gulf S.I.R. Co. v. Patten, 180 Miss. 756, 178 So. 468; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296; Lewis v. Ladner, 177 Miss. 473, 168 So. 281; Finkbine Lumber Co. v. Saucier, 150 Miss. 446, 116 So. 736; Carhart v. Aldridge, 144 Miss. 178, 108 So. 700; Blaylock v. Lonn, 157 Miss. 783, 128 So. 555; Graham v. Bryant, 95 Miss. 180, 48 So. 518; Federal Land Bank of New Orleans v. Ballard (La.), 187 So. 326; Jenkins v. Trager, 40 F. 726; Code of 1930, Sec. 527; Griffith's Mississippi Chancery Practice, Secs. 190, 360; 45 Am. Jur. 586, Sec. 6, p. 609, Sec. 45, p. 628, Sec. 73, p. 629, Sec. 75, p. 644, Sec. 98.
The heirs of Mrs. Carrie B. Edwards are estopped to deny that their ancestor's deed conveyed the excess strip, while asserting that the contemporaneous mortgage included it, or that George Stutts was legally capable of holding adverse possession thereof against their ancestor and themselves.
Graham v. Bryant, supra; Galloway v. Inglis, supra; Butler v. Vicksburg (Miss.), 17 So. 605; Crowder v. Neal, 100 Miss. 730, 57 So. 1; Moore v. Crump, supra; Town of Como v. Pointer, 87 Miss. 712, 40 So. 260; Fant v. Williams, 118 Miss. 428, 79 So. 343; Gibson v. Lyon, 115 U.S. 439, 6 S.Ct. 129, 29 L.Ed. 440; Keller v. Ashford, 133 U.S. 610, 10 S.Ct. 494, 33 L.Ed. 667; Florida Land Investment Co. v. Williams, 84 Fla. 157, 92 So. 876, 26 A.L.R. 171; McAnally v. Texas Company (Tex.), 76 S.W.2d 997; Cantley v. Gulf Production Co., 143 S.W.2d 912; 26 C.J. 360, Sec. 100; 19 Am. Jur. 619, Sec. 20; 19 Am. Jur. 628, Sec. 30; 36 Am. Jur. 748, Sec. 123.
The issue of ownership here involves both adverse possession and the question of an established boundary, both between adjoining landowners and between grantor and grantee; and the facts and legal and equitable doctrines applicable to each such question are inextricably interwoven and interdependent.
Archer v. Helm, 70 Miss. 874, 12 So. 702; Archer v. Helm, 69 Miss. 730, 11 So. 3; Butler v. Vicksburg, supra; Evans v. Miller, 58 Miss. 120, 38 Am. Rep. 313; City of Natchez v. Vandervelde, 31 Miss. 706, 66 Am. Dec. 581; Crowder v. Neal, supra; Schuler v. McGee, 127 Miss. 873, 90 So. 713; Metcalfe v. McCutchen, 60 Miss. 145; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Greer v. Pickett, 127 Miss. 739, 90 So. 449; Davis v. Davis, 68 Miss. 478, 10 So. 70; Niles v. Davis, 60 Miss. 750; Davis v. Bowmar, 55 Miss. 671; Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147, 2 L.R.A. 1453; 1 R.C.L., Adverse Possession, Sec. 52, p. 733; 2 C.J., Adverse Possession, Secs. 236, 237, p. 137 et seq.
The chancellor committed no error in admitting evidence of the community reputation and tradition as to boundary and ownership with respect to the boundary fence.
Lovejoy v. McKibben, 113 Miss. 369, 74 So. 281; Wigmore on Evidence (2 Ed.), Sec. 254, p. 529, Sec. 1587, p. 336 et seq.; 2 C.J. 275, Sec. 616; 9 C.J. 275, Secs. 310, 311, et seq.
Mrs. Sorrells and her predecessors in title lost the disputed strip decades ago to Mrs. Edwards' predecessors, both by establishment of a boundary and by adverse possession, and have never regained ownership by conveyance or adverse possession.
Lowi v. David, 134 Miss. 296, 98 So. 684; Fant v. Williams, 118 Miss. 428, 79 So. 343; 2 C.J. 256, Sec. 559.
The trial court correctly held that both George Stutts and his grantor, Mrs. Edwards, honestly believed all land west of the ancient boundary fence was effectively described and conveyed by Mrs. Edwards' deed to Stutts; but whether they so believed or not, Stutts has had such possession as ripened into title without the aid of such belief on his part.
Moreover, Mrs. Sorrells and her assigns have no interest and cannot raise the issue of honest belief between Stutts and Mrs. Edwards fifty years or more after their predecessor lost all right, title and interest to the land by establishment of a boundary and by adverse possession.
Argued orally by M.M. McGowan and H.W. Gwinnup, for appellants, and by Miss Ruth Campbell and W.H. Barbour, for appellee.
The principal questions presented for decision here are: (1) Whether or not Mrs. Carrie B. Edwards, deceased, and her predecessor in title, C.C. Sibley, who was her father and from whom she inherited, and both of whom were respectively and successively the undisputed owner of the record title to 295 acres of land which include the SE 1/4 of Section 30, Township 10 North, Range 2 West in Yazoo County, Mississippi, had also acquired prior to October 27, 1928, title by adverse possession, and without color of title, a strip of land on which oil is now being produced and which is estimated to be worth approxi-$200,000, containing about 7 acres in area off the West side of the SW 1/4 of the SW 1/4 of Section 29 of said township and range as against the undisputed owners successively of the record title to 764 acres of land which included the entire SW 1/4 of said Section 29 and other lands adjacent to the said 7 acres and on the South side thereof, and which said SW 1/4 of SW 1/4 is now owned by Mrs. Margaret Fouche Sorrels by inheritance from her mother, Mrs. Mary A. Fouche; (2) whether or not, if the above stated inquiry is answered in the affirmative, the appellee, George Stutts, as vendee of the said Mrs. Carrie B. Edwards under warranty deed of October 27, 1928, of the said 295 acres, including the SE 1/4 of Section 30, as aforesaid, described in said deed by governmental subdivisions, and who was according to the mutual intention of the grantor and grantee, as disclosed by the great preponderance of the testimony and all of the surrounding facts and circumstances, put in possession of the 7-acre strip in controversy as if the same constituted a part of the SE 1/4 of the SE 1/4 of said Section 30 instead of a part of the SW 1/4 of the SW 1/4 of said Section 29 belonging to the said Mrs. Margaret Fouche Sorrells, is precluded under the law from claiming title by adverse possession to the said disputed area of land prior to October 27, 1935, against the appellants, Mrs. Mary Edwards Kersh and the other heirs of Mrs. Carrie B. Edwards, deceased, because of the fact that contemporaneously with the delivery of the deed to the said George Stutts on October 27, 1928, and as part of the same transaction, he executed a deed of trust in favor of R.R. Norquist, trustee for the benefit of his said grantor and to secure the payment of the purchase price of the land so purchased, in annual installments over a period of years ending on October 27, 1935, and which said installments were not paid except in accordance with the terms of the deed of trust, it being the contention of said appellants that as to them the possession of the said George Stutts of the land in controversy did not, and could not, become adverse until the deed of trust was fully paid and satisfied in 1935, less than ten years prior to the filing of this suit; and to emphasize which contention they invoke a provision of the deed of trust to the effect that he was expressly granted permission by the beneficiary therein to hold the possession of the land until the indebtedness was fully paid or until demanded or taken possession of for the purpose of foreclosure in the event of default, a right given him by virtue of Section 2128, Code of 1930, except for condition broken, without the necessity of such stipulation in said instrument, and which statute provides, among other things, that: "The mortgagor or grantor shall be deemed the owner of the legal title of the property conveyed in such mortgage or deed of trust, except as against the mortgagee and his assigns, or the trustee after breach of the condition of such mortgage or deed of trust;" and (3) whether or not the trial court abused its discretion in allowing the complainant George Stutts and those claiming mineral leases under him to amend their bill of complaint, after the trial had been in progress for three or four days, so as to conform to the proof as to the intention of the grantor and grantee to include the disputed area in the conveyance, as being a part of the SE 1/4 of the SE 1/4 of said Section 30 therein described, and the existence of which mutual intention the appellants, Mrs. Mary Edwards Kersh and G.C. Edwards, daughter and son, respectively, of the said Mrs. Carrie B. Edwards, deceased, were unwilling to deny as witnesses at the trial in view of all of the attendant facts and circumstances.
There is also submitted for our consideration by the appellants, Mrs. Margaret Fouche Sorrells and her mineral lessees, the alleged inadmissibility of certain testimony heard and considered by the chancellor relating to the reputation of a certain fence as a dividing line, and which will be dealt with in the discussion of the first proposition hereinbefore enumerated.
The court below rendered a decree in favor of the appellee George Stutts and his mineral lessees, C.H. Lyons and others, whereby the claims of the appellants Mrs. Mary Edwards Kersh and the other heirs of Mrs. Carrie B. Edwards, deceased, and of their mineral lessees, together with the claims of the said Mrs. Margaret Fouche Sorrells and her mineral lessees, were all cancelled as clouds upon the title held by the appellee George Stutts and his said mineral lessees, and from which decree this appeal is prosecuted.
It is to be conceded that the appellant Mrs. Margaret Fouche Sorrells and her predecessors in title of the 764 acres of land, including the SW 1/4 of SW 1/4 of Section 29 of which, according to the governmental survey, the seven acres in controversy are a part, are entitled to have their possession treated as co-extensive with the calls of their deeds of conveyance which constitute the record title of said lands, in the absence of an actual, adverse and continuous use or occupancy on the part of someone else. Bullock et al. v. Greer et al., 181 Miss. 190, 179 So. 264; and Lawrence v. Byrnes, 188 Miss. 127, 193 So. 622. And, it is also true that George Stutts and his predecessors in title of the SE 1/4 of SE 1/4 of Section 30, and who were without color of title by parol gift, deed, or other writing to any part of the disputed 7 acre tract, can 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. Dedeaux v. Bayou DeLisle Lbr. Company, 112 Miss. 325, 73 So. 53; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Evans v. Shows, 180 Miss. 518, 177 So. 786.
The facts in the instant case, however, as disclosed by the great preponderance of the evidence contained in this voluminous record of more than 1,100 pages, are that C.C. Sibley, as holder of the record title to the 295 acres now owned by the appellant George Stutts, went upon said land and established his home on the 7 acres in controversy, replaced an old rail fence with three strands of barbed wire on the same fence site, running North and South on the East side of this disputed area, the same as if it had been a part of the SE 1/4 of SE 1/4 of said Section 30 to which he held the record title, and that this fence has been sufficiently maintained to serve as an effective enclosure on the East side of the fields and pastures in use on said seven acres of land, for more than thirty-one years prior to the filing of this suit, forming a part of the entire enclosure of the farm of the said C.C. Sibley and of his daughter, Mrs. Carrie B. Edwards, who later inherited the 295 acres from him. That on October 27, 1928, when said land was sold by the said Mrs. Carrie B. Edwards to the appellant George Stutts, who had been a tenant on the farm during the lifetime of C.C. Sibley, the said grantor then suggested to her said grantee that he should repair the fence which enclosed the place so that it would keep cattle from troubling him and interfering with his crops, which enclosure included the fence heretofore mentioned, and that she thereupon put her said grantee in possession of the disputed area the same as if it had been a part of the land specifically described in her deed of conveyance, and thereafter visited the premises from time to time, inspected his crops to ascertain whether they would be ample to enable him to meet the annual purchase money installment, and thereby had an opportunity to observe that he was in possession of the disputed area, cultivating and pasturing the land, selling timber therefrom without objection from anyone and exercising the same acts of ownership and control thereof as he would have done if it had been specifically described in the deed of conveyance as a part of the land for which he had agreed to pay the consideration called for therein. That while the evidence is in conflict on the issue as to whether the disputed area was situated within a complete enclosure for a full period of ten years prior to the purchase of George Stutts and for another full period of ten years subsequent thereto, the proof is ample to sustain the affirmative of such claim. That shortly after the execution of the deed by the said Mrs. Carrie B. Edwards and pursuant to her suggestion, as aforesaid, and in the exercise of his rights as owner of the land, George Stutts put his enclosure in a better state of repair, using about 4,000 new posts for that purpose. And, the proof further discloses that portions of the disputed area were cultivated while other portions were separately enclosed as a pasture, and that these separate portions were pastured and cultivated alternately in such manner and for the required period of time to constitute actual and continuous use in the manner required to confer title by adverse possession as against the holders of the record title for more than thirty-one years and as against all persons in favor of the said George Stutts for more than ten years prior to the filing of this suit.
There is no substantial proof that anyone else, including the appellant Mrs. Margaret Fouche Sorrells and her predecessors in title, has had any sort of possession of the disputed area during the period aforesaid as opposed to the possession, use and occupancy of George Stutts and his predecessors in title, except in isolated instances by his permission and consent, other than such constructive possession as would have otherwise adhered to the record title of the owner of the SW 1/4 of the SW 1/4 of Section 29, on the West side of which the disputed area is situated.
It would unnecessarily prolong this opinion to review here in substantial detail the facts and circumstances testified to by numerous witnesses in support of the conclusions stated in the foregoing paragraphs. We deem it sufficient to state that the finding of the chancellor in that behalf is amply supported by the testimony and that if such finding on the issue of adverse possession had been otherwise it would have been contrary to the great weight of the evidence.
As to the claim of the appellants, Mrs. Mary Edwards Kersh and the other heirs of Mrs. Carrie B. Edwards, deceased, which is set forth as the second proposition hereinbefore stated for decision, it seems that they take the position that George Stutts did not acquire the 7 acres in controversy as a part of the land described in the deed of conveyance to him from the said Mrs. Carrie B. Edwards and is nevertheless precluded from claiming title by adverse possession as against the said grantor or her heirs on account of having given a deed of trust to secure the purchase money in which there was only described the same land conveyed by the deed. But, most assuredly, if her grantee did not get title to the disputed area under the deed, then he did not convey it to the trustee under the deed of trust, using the same description as was contained in his deed. It would be inconsistent to hold that he did not acquire the title to the seven acres under the deed and that nevertheless he became disqualified to claim adversely to his grantor when he executed a deed of trust to secure the purchase money in her favor, describing the same land mentioned in the deed and no other.
But, it is further contended by the said appellants that George Stutts is also precluded from acquiring title adversely to his grantor of any land contiguous to that actually described in the deed and deed of trust, and the title of which is alleged to have remained in his grantor. A sufficient answer to this contention is that the 7-acre disputed area was mutually understood by the grantor and grantee to be a part of the consideration for which the latter executed the purchase money mortgage, and that having fully paid the purchase price, neither the grantor nor her heirs could successfully assert any valid claim thereto. The testimony establishes beyond any reasonable doubt that the grantor Mrs. Edwards, who had already moved away to make her home with her daughter at Jackson, Tennessee, at the time of the execution of the conveyance to George Stutts, fully intended to convey and that he fully intended to purchase the disputed area as being a part of the land specifically described in the deed. Moreover, it is unreasonable to suppose that under all of the facts and circumstances she intended to reserve a 7 acre strip of land within the enclosure of fields and pastures then being delivered to the grantee, without having ever mentioned such fact to either Mrs. Mary Edwards Kersh or G.C. Edwards, the daughter and son with whom she thereafter made her home, and who were unwilling to say in their testimony that she had any other thought than that she had sold to George Stutts all of the land that she owned in the vicinity where the land in question was situated.
It is strenuously urged, however, by the appellants, Mrs. Mary Edwards Kersh and the other heirs of Mrs. Carrie B. Edwards, that neither the said Mrs. Edwards nor her grantee George Stutts could have intended that the 7 acres now in dispute should be conveyed under the deed, because they say that neither the grantor nor grantee then knew that the said strip of land was in existence. This assumption is inaccurate. Manifestly, they both knew that it was in existence when the grantor pointed it out to the grantee in placing him in possession thereof, and he began to cultivate and pasture the disputed area the same as his grantor and her predecessor in title had done. The only fact of which they did not have knowledge was that the 7 acre strip was actually a part of the SW 1/4 of SW 1/4 of Section 29, whereas they thought and understood that it was a part of the SE 1/4 of the SE 1/4 of Section 30, Township 10 North, Range 2 West, and that it was being conveyed as such. The contemporaneous construction by vendor and vendee evidenced by giving of possession will fix the true meaning and intent of the parties. Moore et al. v. Crump et al., 84 Miss. 612, 37 So. 109; Town of Como v. Pointer et al., 87 Miss. 712, 40 So. 260.
Then, it is contended by the appellants Mrs. Margaret Fouche Sorrells and her mineral lessees that George Stutts could not have entered possession of the disputed area in the honest belief that it was a part of the land described by governmental subdivisions in his deed of conveyance from Mrs. Carrie B. Edwards because of the fact that he served as a chain bearer some thirty-odd years ago when a surveyor is alleged to have located the true section line as being located along the West side of the said 7 acre tract. The proof discloses, however, that at that time George Stutts was a tenant of C.C. Sibley, that Sibley objected to the line as located by the surveyor and continued in possession of the disputed area as he had theretofore, and that after his death, which occurred while he still resided on the strip in controversy, such possession continued on the part of his daughter Mrs. Carrie B. Edwards until she later sold the land to the said George Stutts. Moreover, C.C. Sibley had already acquired a title to the disputed area by adverse possession at the time of such survey, and it was therefore immaterial as to where the surveyor may have located the true line.
It is also assigned for error by the appellants last above mentioned that the chancellor permitted witnesses to testify as to the reputation and tradition in the community as to the fence which ran North and South on the East side of the disputed area being the dividing line between the two properties. Such testimony may have been incompetent to establish such line in contradiction of the true survey, but it was nevertheless competent as evidence of the notoriety of the claim of adverse possession thereto and of the fact that the disputed area was within the long established enclosure of the Sibley place.
Finally, it is urged in connection with the third proposition hereinbefore stated for decision that the trial court abused its discretion in permitting the amendment therein referred to so as to allow the complainants to allege the mutual intention and understanding of Mrs. Carrie B. Edwards and her grantee George Stutts in regard to the disputed area being a part of the land then sold and of which the grantee was placed in posesssion.
It will readily be seen, however, that if the issue stated under the first proposition hereinbefore mentioned was correctly decided by the chancellor against the holder of the record title of the SW 1/4 of the SW 1/4 of Section 29, that is to say, the appellants Mrs. Margaret Fouche Sorrells and her mineral lessees, then they would have no interest in the question of whether the amendment of the pleadings was properly and seasonably allowed as between the appellants George Stutts and his mineral lessees on the one hand and the appellants, Mrs. Mary Edwards Kersh and the other heirs of Mrs. Carrie B. Edwards, deceased, and their mineral lessees, on the other, since they had lost the disputed area to the said Mrs. Carrie B. Edwards and her predecessors in title prior to the date of such conveyance on October 27, 1928, and have never reacquired the same either by conveyance or adverse possession.
Nor can the appellants, Mrs. Mary Edwards Kersh and the other heirs of Mrs. Carrie B. Edwards, deceased, and their mineral lessees, successfully maintain that they were unduly prejudiced by the allowance of the amendment and the refusal of the court to grant a continuance until the issue of mutual intention in the deed from their ancestor to George Stutts could be met by proof, since it was not stated in the motion for a continuance, nor is it contended here that the said appellants would have been able at a later date to offer testimony in contradiction of that offered by the complainants on that issue and which proof was virtually assented to as being correct by two of the said appellants as aforesaid, they having testified in substance that they had never heard of the contention that their mother still owned the land in dispute until they were summoned to court in this suit, and it is inconceivable that such mutual intention could be successfully disputed under all of the facts and circumstances of this case. At any rate, since the chancellor was not advised by those requesting a continuance that there was any probability of such proof being made at a later date, he can not be held in error for denying the motion in that behalf.
We are of the opinion that the decision of the chancellor on the issues of fact was amply sustained by the proof and that the principles of law involved were correctly applied, and that therefore the decree appealed from should be in all respects affirmed.
Affirmed.