Opinion
September 27, 1948.
1. Witnesses — undisputed issues — some witnesses disqualified.
When the affirmative of an issue is established by a number of witnesses and their testimony is undisputed the decree will not be reversed merely because some of the witnesses were disqualified.
2. Written contract of purchase — long possession under — presumption of payment.
Where a purchaser of land has gone into possession under a written contract of purchase on credit, and has exercised exclusive acts of ownership and control over the same for a long period of years there is a presumption of payment of the purchase price.
3. Witnesses — competency to identify papers.
A party although otherwise disqualified as a witness to establish his claim against the estate of a deceased person may testify as to the identify of papers in the possession of his ancestor at the time of the latter's death.
4. Written contract of purchase — long possession under — presumption of an executed deed.
A contract for the purchase of land in the form of a receipt signed by the vendor which describes the land, acknowledges a cash payment, and agrees to convey the land on the further payment therein mentioned, when followed by an exclusive possession by the vendee for a long number of years raises a presumption not only that the remainder of the purchase price was paid but also that a deed of conveyance was executed — in the absence of any showing to the contrary.
Headnotes as approved by McGehee, J.
APPEAL from the chancery court of Kemper County, J.K. GILLIS, Chancellor.
Gillespie Minniece, for appellant.
One of the essential elements in the proof of adverse possession is that the possession relied on must be shown to be hostile to any claim of right not only by the owner but by all the world, excepting only the sovereign. Permissive possession even if long continued does not confer title on the person in possession of the property. Barron v. Federal Land Bank of New Orleans, 182 Miss. 50, 180 So. 74, 5 Thompson Real Property (Permanent Edition) Section 2648, page 460. This hostility must be present at the inception of the adverse holding and continued throughout the entire period of limitation. If the original entry is not hostile but permissive, it can be changed to one of hostility only by the most unequivocal conduct on the part of the adverse claimant and if a party goes into possession of land under a lawful title, even though he holds over after his right has expired, his possession thus continued will not be regarded as adverse to the record title holder. Neal v. Newberger, 154 Miss. 691, 123 So. 861; Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Day v. Cochran, 24 Miss. 261, 5 Thompson Real Property (Permanent Ed.) Section 2648, page 460.
It is uniformly held in this country that the vendee under an executory contract of sale, whether written or oral, enters into possession under and without hostility to his vendor and that therefore the vendee's possession is not adverse. Vendee's possession may become adverse only after he had repudiated his vendor's title openly and notoriously and asserted an exclusive right in himself. In such case it is necessary that notice, either actual or constructive, of the repudiation be given to the vendor. It is also uniformly held that part payment of the purchase price is not sufficient to allow the vendee to acquire adverse possession but that the whole of the purchase price must be paid or at least tendered and that the possession of the vendee under an executory contract of purchase is not rendered adverse to his vendor by mere default. 1 Am. Jur. section 40, page 814; McClanahan v. Barrow, 27 Miss. 664; Day v. Cochran, Supra.
The record will show that the proof is undisputed that John Bohannon originally entered the lands in question with the knowledge and permission of C. Rosenbaum, the record owner. On October 1, 1896 the year in which John Bohannon entered possession of the lands in question, C. Rosenbaum issued him a receipt for $100.00 in cotton as a payment to be credited on the land in question, stating therein that there was a balance due on said lands of $220.00 to draw interest at 10%.
Appellees did not even attempt to prove that John Bohannon ever paid the balance due on this land or any part thereof. The only logical inference that can be drawn from the evidence with reference to the dealings between C. Rosenbaum and John Bohannon after John Bohannon paid the first $100.00 will be that he never paid the balance although C. Rosenbaum apparently gave him an indefinite time to do so.
The testimony of appellees, Mary Bohannon, Willie Bohannon and Nora Bohannon as to the occupation and use of the land by John Bohannon and themselves was testimony in support of their own claim against the estate of a decedent and should not have been admitted.
The law in this State seems to be so well settled that the testimony of these witnesses which was objected to is not competent that we do not intend to cite but a few authorities in this State. The statute making a person incompetent to testify as a witness to establish his own claim of defense against a deceased person originating during his lifetime is now set forth in section 1690 of the Mississippi Code of 1942 Anno. It has been on our statute books in one form or another since 1857 at least. As was pointed out in our court in the case of Jacks vs. Bridewell, 51 Miss. 881, this statute took the place of the old common law which prohibited parties to suits from testifying for themselves at all. In this case the court in constructing the statute held that the term "estate of a deceased person" is used in its broad and popular sense to signify all the property of every kind which one leaves at his death and that any right asserted against real or person property left by a deceased person as accrued to the party by virtue of a dealing between him and such person since deceased, renders the person asserting it incompetent as a witness to maintain in his own behalf such assertion of right.
J.H. Daws, for appellees.
It is the well recognized rule by all of the judicial authorities, that when a bill of complaint in the chancery courts charges certain facts, and a defendant admits such facts in his answer, or if a complainant puts witnesses on the stand, or a defendant puts witnesses on the stand, and through such pleadings or through such testimony makes proof of such facts, then he, or they are bound by his or their own pleadings and their own proof, and here we call attention to the fact, that the defendant put a former wife of the deceased, John Bohannon, on the stand, her name being Esther Bohannon, and through her testimony on defendant's behalf in the lower court, every charge and allegation in the complainants' bill of complaint was definitely proven, and under the well established rule the defendant is bound by his own evidence.
This is a suit brought by the appellees, Mary Bohannon and others, as the sole heirs-at-law of John Bohannon, deceased, to cancel as a cloud upon their title the claim of appellant, Leonard Rosenbaum, to 160 acres of land which they claim to have inherited as such heirs-at-law.
There was an answer and cross bill filed by the appellant seeking to have himself adjudicated to be the owner of the land in question, or that in the alternative he be permitted to recover of the appellees all taxes paid on the land both by himself and by his immediate predecessor in claim of title. The trial court cancelled his claim to the land, adjudicated the same to belong to the appellees, and decreed that the appellant was entitled to recover such taxes as he had paid, but not those paid by his immediate predecessor in title.
Proof disclosed that John Bohannon purchased the land on October 8, 1896, from C. Rosenbaum, who was admittedly the owner thereof at that time. No deed is shown to have been executed and delivered between the parties, but a receipt for the payment of nearly one-half of the purchase price, duly signed by the alleged seller, C. Rosenbaum, was found among the papers of John Bohannon after his death in 1944. The proof further disclosed that the said purchaser entered into possession of the land in 1896, built a residence and other improvements thereon, and soon thereafter enclosed the land with fences; that he cultivated a part and pastured other parts thereof each year for more than forty-four years, claiming the land as his own continuously and exercising all acts of ownership and control thereof, except as to the payment of taxes.
The trial court permitted the appellee, Mary Bohannon, and some of her children as claimants to testify fully, over the objection of the appellant, in regard to the acts of adverse possession on the part of John Bohannon, as against C. Rosenbaum and one of his deceased successors in record title, and this is one of the errors assigned for reversal here. However, there was other and ample testimony to the same essential facts in that behalf by other witnesses. Moreover, (Hn 1) there is no dispute in the testimony as to the said acts of ownership and control which were exercised by John Bohannon over the land. One or two witnesses who did not reside in the community said that they did not know that John Bohannon was claiming the land, but they did not dispute any of the testimony as to his having built his home and other improvements thereon and his continued possession, occupancy, and cultivation thereof. For these reasons we should not reverse the case because of the admission of the testimony of the claimants of the land, since the court would not have been justified in rendering any other decree than it did render even if this testimony had been eliminated.
But it is urged that a vendee under an executory contract of sale, whether written or oral, enters into possession of land under, and without hostility to, his vendor, and that, therefore the vendee's possession is not adverse without proof of notice to the seller of the sole claim of ownership sought to be asserted citing 1 Am. Jur., Sec. 40, Page 814; McClanahan v. Barrow, 27 Miss. 664; Day v. Cochran, 24 Miss. 261. However, the Court in effect held in the case of Foster v. Jefferson County, Miss., 32 So.2d 126, that (Hn 2) where a purchaser of land on credit has gone into possession and has exercised exclusive acts of ownership and control over the same for such a long period of years, there is a presumption of payment.
(Hn 3) The appellees were competent to identify the papers in the possession of John Bohannon at the time of his death, and since (Hn 4) the receipt of part of the purchase money, describing the land, disclosed an agreement to convey the same upon payment of the sum of $120 in addition to the cash payment shown therein, the presumption is that by reason of a continuous occupancy and use of the land for at least forty-four years, the remainder of the purchase price was paid, and that the conveyance was in fact executed in the absence of any showing to the contrary.
We are therefore of the opinion that the decree of the trial court was correct and should be affirmed.
Affirmed.