Opinion
No. 42266.
March 26, 1962.
1. Adverse possession — continued — exclusive — evidence insufficient to establish title by.
Evidence sustained findings that defendants had not occupied land to which they claimed title by adverse possession to exclusion of all others uninterrupedly during any ten-year period. Sec. 711, Code 1942.
2. Minerals — adverse possession of surface gives no adverse possessory title to previously severed minerals.
Adverse possession of surface does not constitute adverse possession of previously severed minerals, absent active production and appropriation for statutory ten-year period. Sec. 711, Code 1942.
3. Corporations — legality of corporate existence — validity of merger or consolidation — not subject to collateral attack.
Neither legality of existence of corporation nor validity of merger or consolidation could be collaterally attacked.
4. Corporations — validity of merger or consolidation — objection to, can be made only by state.
Objection that there has been no valid merger or consolidation can be made only by the state in direct proceedings.
5. Deeds — description — "all property of grantor in certain state" sufficient to pass grantor's title to real estate.
Conveyance of all property of grantor in certain state is sufficient to pass grantor's title to real estate, without particular description.
6. Deeds — description — an effective conveyance.
Confirmatory deed stating that it passed title owned by grantor in lands, timber, minerals, and all other property and rights, real, personal or mixed, situated in state was effective conveyance.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Clarke County; WILLIAM NEVILLE, Chancellor.
Holyfield Goldman, Meridian, for appellants.
I. The decree of the lower court was against the overwhelming weight of the evidence and the law.
II. The lower court erred in holding that the appellants failed to meet the burden of proof necessary to substantiate their claims to all of the land involved or any part thereof.
III. The lower court erred in decreeing International Paper Company, a corporation, and The Long-Bell Petroleum Company, Inc., a corporation, to be the real owners in possession of the properties involved in this cause.
IV. The lower court erred in validating, quieting and confirming the title to the properties involved in this cause as against these appellants, and in canceling the claims of the appellants in and to said properties.
V. The lower court erred in excluding from the evidence the Articles of Incorporation and all amendments thereto of the Long-Bell Lumber Company.
VI. The lower court erred in refusing the appellants to prove that The Long-Bell Lumber Company deceased in 1934 and, hence could not effect a merger with the complainant, International Paper Company, Inc., in 1956.
VII. The lower court erred in failing to allow the appellants to prove that International Paper Company, Inc. did not have legal title to the properties involved in this cause.
VIII. The lower court erred in allowing the complainant, International Paper Company, to introduce into evidence a confirmatory deed dated November 5, 1956.
Collation of authorities: Broadus v. Hickman, 210 Miss. 885, 50 So.2d 717; DeLee v. Anderson, 216 Miss. 888, 63 So.2d 393; Grantham v. Masonite Corp., 218 Miss. 745, 67 So.2d 727; Grayson v. Robinson, 240 Miss. 59, 126 So.2d 247; Illinois Cent. R. Co. v. Mississippi Cottonseed Products Co., 160 Miss. 579, 148 So. 321; Kornegay v. Montgomery, 194 Miss. 274, 12 So.2d 423; Levy v. Campbell, 200 Miss. 721, 28 So.2d 224; Mathieu v. Crosby Lumber Mfg. Co., 210 Miss. 484, 49 So.2d 894; Miaxon v. Devengier, 74 Miss. 57, 20 So. 148; Patterson v. Morgan, 161 Miss. 807, 138 So. 362; Pura Filter Corp. v. Trembley, 266 App. Div. 750, 41 N.Y.2d 471; Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Snowden McSweeney Co. v. Hanley, 195 Miss. 682, 16 So.2d 24; State v. Holekamp Lumber Co. (Mo.), 331 S.W.2d 171; Taylor v. Aldridge, 180 Miss. 635, 178 So. 331; United Sewing Machine Distbrs. v. Calhoun, 231 Miss. 390, 95 So.2d 453; Sec. 2287, Code 1930; Thompson on Real Property, Sec. 3264.
Riddell Dabbs, Quitman, for appellees.
I. The burden of proof was on appellants to establish title by adverse possession and this they failed to do. Ates v. Ates, 189 Miss. 226, 196 So. 243; Ball v. Martin, 217 Miss. 221, 63 So.2d 833; Ford v. Rhymes, 233 Miss. 651, 103 So.2d 363; Georghegan v. Krauss, 228 Miss. 22, 87 So.2d 461; Grantham v. Masonite Corp., 218 Miss. 745, 67 So.2d 727; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Mason v. Gaddis Farms, Inc., 230 Miss. 666, 93 So.2d 629; Miles v. Collinsville M.E. Church (Miss.), 46 So.2d 110, 793; Newman v. Smith, 226 Miss. 465, 84 So.2d 512; Shepard v. Mahannah, 220 F.2d 737.
II. The burden of proof was on the appellants to prove with certainty the description of the lands claimed by them and the exact location and description of any cultivated patches and any cleared lands claimed by them. Evans v. Shows, 180 Miss. 518, 177 So. 786; Kersch v. Lyons, 195 Miss. 598, 15 So.2d 768; Page v. O'Neal, 207 Miss. 35, 42 So.2d 391; Parks v. Simmons (Miss.), 52 So.2d 14; Walker v. Polk, 208 Miss. 389, 44 So.2d 477.
III. There was no proof of adverse possession of the separately owned minerals owned by Long-Bell Petroleum Company, Inc. Anderson v. Boyd, 229 Miss. 596, 91 So.2d 538; Cook v. Fairley, 195 Miss. 638, 15 So.2d 352; Day v. Pounders, 231 Miss. 63, 94 So.2d 620; Levy v. Campbell, 200 Miss. 721, 28 So.2d 224; State v. Wilbe Lumber Co., 217 Miss. 346, 64 So.2d 327; White v. Merchants Planters Bank, 229 Miss. 35, 90 So.2d 11; Wilson v. Eckles, 232 Miss. 577, 99 So.2d 846.
Appellees, complainants in the Chancery Court of Clarke County, are International Paper Company (International) and The Long-Bell Petroleum Company, Inc. (Long-Bell). The suit was brought against appellants, E.G. and F.L. Moffett, to cancel their claims upon certain lands as clouds on title. Defendants asserted title by adverse possession, and filed a cross bill to confirm it as to about 600 acres of the entire tract. International and Long-Bell owned the record title to the surface and minerals, respectively. (Hn 1) After a lengthy hearing, the chancery court held that appellants failed to sustain their burden of proof to establish title by adverse possession. They had not occupied the land to the exclusion of all others and uninterruptedly during any ten-year period of time. Miss. Code 1942, Rec., Sec. 711. With these conclusions, the trial court entered a decree confirming complainants' record title to the property and canceling any clouds asserted to it by defendants and cross-complainants, appellants here. No purpose would be served in an outline of the large amount of evidence. Suffice it to say that we have carefully examined the record, and the evidence amply supports the findings and decision of the trial court. Grantham v. Masonite Corp., 218 Miss. 745, 67 So.2d 727 (1953), is substantially similar to the present case.
(Hn 2) The minerals were severed from the surface of the land in 1932, considerably before appellants even claimed to have exercised adverse possession over the surface. Subsequently the minerals vested in Long-Bell. Adverse possession of the surface does not constitute adverse possession of previously severed minerals, in the absence of active production and appropriation for the statutory ten-year period. Cook v. Farley, 195 Miss. 638, 15 So.2d 352 (1943); Wilson v. Eckles, 232 Miss. 577, 99 So.2d 846 (1958).
Long-Bell Lumber Company, a Missouri corporation, merged in 1956 with International Paper Company. Appellants argue that the corporate charter of Long-Bell Lumber Company expired in 1934 and was not validly extended, relying on State v. Holekamp Lbr. Co., 331 S.W.2d 171 (Mo. 1960). However, that case was overruled in State v. Holekamp Lbr. Co., 340 S.W.2d 678 (Mo. 1960); app. dis., 366 U.S. 715, 81 S.Ct. 1660, 6 L.Ed.2d 846; rehearing denied, 368 U.S. 870, 82 S.Ct. 26, 7 L.Ed.2d 71, which held that there was reserved statutory authority to extend and renew Missouri corporate charters during this period. That was the procedure followed in connection with the Missouri charter of Long-Bell Lumber Company.
(Hn 3) Moreover, appellants cannot collaterally attack the legality of the existence of this company, or the validity of the merger or consolidation with International, even if there were any merit in their contention, which there is not. 13 Am. Jur., Corporations, Sec. 60. (Hn 4) The objection that there has not been a valid merger or consolidation is one which can be made only by the state in direct proceedings. Collateral attack is not permissible. Ibid., Sec. 1189; 19 C.J.S., Corporations, Sec. 1610; see also Middleton v. Georgetown Mercantile Co., 117 Miss. 134, 144, 77 So. 956 (1918).
(Hn 5, 6) Pursuant to the merger, Long-Bell Lumber Company executed to International in 1956 a "confirmatory deed". It conveyed to International all right and title owned by the grantor in lands, timber, minerals, "and all other property and rights, real, personal or mixed, situated in the State of Mississippi, . . .". The grantor owned thousands of acres in Mississippi. Appellants assert this conveyance is invalid because it contains an inadequate description. However, a conveyance of all of the property of the grantor in a certain state is sufficient to pass the grantor's title to real estate in that state, without a particular description. It can be made certain. 16 Am. Jur., Deeds, Sec. 272; 26 C.J.S., Deeds, Sec. 30, p. 649; 6 Thompson, Real Property (Perm. Ed. 1940), Sec. 3291; Anno. 55 A.L.R., 162, 166 (1928); Ewing, Miss. Land Descriptions, 18 Miss. L.J. 381, 383-384 (1947); Harmon v. James, 7 S. M. 111, 118, 45 Am. Dec. 296 (1846); see also Barksdale v. Barksdale, 92 Miss. 166, 45 So. 615 (1908); Herod v. Robinson, 149 Miss. 354, 115 So. 40 (1927). The deed was an effective conveyance.
Affirmed. McGehee, C.J., and Kyle, Rodgers, and Jones, JJ., concur.
ON MOTION TO STRIKE FROM RECORD UNNECESSARY DOCUMENTS
Appellants have made a motion to strike from the record a number of subpoenas for witnesses, a motion for subpoena duces tecum, and a lis pendens notice. This motion is sustained, except as to the order on page 86 of the record. All of these instruments are wholly unnecessary for a consideration of this case. They should not have been included in the record. Carroll Notion Co. v. Neville, 217 Miss. 699, 65 So.2d 140, 146-147 (1953); Cooper v. Simmons, 237 Miss. 630, 114 So.2d 614 (1959); Supreme Court Rule 2. Hence the motion to strike the pages therein enumerated and to disallow the costs of such pages is sustained.
Motion to strike from record certain unnecessary documents sustained.
All Justices concur.