Opinion
No. 36317.
May 19, 1947. Suggestion of Error Overruled November 10, 1947.
1. ADVERSE POSSESSION.
Where defendant in action to remove defendant's claim to certain land as a cloud upon complainant's title, by cross-bill, asserted title to disputed area in himself by adverse possession, burden was upon defendant of showing that he was vested with title by adverse possession to disputed area, and to do that it was necessary for him to show that he alone, or he and his predecessors in title together, had had the actual, open, hostile, peaceable, exclusive, continuous possession of the land for 10 years, under claim of ownership thereto (Code 1942, sec. 711).
2. ADVERSE POSSESSION.
Filing of bill to cancel and remove defendants' claim to land as a cloud upon complainant's title stopped running of 10 year period necessary to acquire title by adverse possession (Code 1942, sec. 711).
3. ADVERSE POSSESSION.
Evidence failed to establish that defendant was owner by 10 years' adverse possession of land adjoining lands of which he held record title, where defendant failed to show that one of his predecessors, whose possession was relied upon to establish the 10 year period, claimed to be owner of disputed lands at time it was in possession (Code 1942, sec. 711).
ON SUGGESTION OF ERROR. (In Banc. Nov. 10, 1947.) [ 32 So.2d 575. No. 36317.]1. QUIETING TITLE.
Evidence that third person not a party to suit had acquired title to land by adverse possession did not preclude entry of judgment removing as a cloud on complainant's record title to the land the defendants' claim of title by adverse possession (Code 1942, sec. 711).
2. JUDMENT.
Any judgment adjudging complainant to be the owner of land as against defendants claiming title by adverse possession would not be binding as against the claim of a third person not a party to the suit (Code 1942, sec. 711).
Appeal from chancery court of Lawrence county. HON. LESTER CLARK, Chancellor.
Charles C. Hairston and Henry Mounger, both of Columbia, and Patterson Patterson, of Monticello, for appellant.
The appellants have undoubtedly shown good title in themselves, the appellee has not attacked their title, but in fact has conceded that appellants have good record title, but contended that he (appellee) has acquired title to the strip in controversy by adverse possession. A fee simple title to land can be alienated or lost only (1) by grant in writing, (2) by estoppel, (3) by tax sale or condemnation, or (4) by adverse possession. Here, if complainants have lost title, it has been by actual adverse possession and nothing else; and nothing is better settled than that adverse possession is an issue which must be pleaded and proved by him who relies on it.
White et al. v. Turner et al., 197 Miss. 265, 19 So.2d 825; Cook v. Farley et al., 195 Miss. 638, 15 So.2d 352; Griffith's Mississippi Chancery Practice, Secs. 29(a), 30.
The appellee has not occupied and claimed adversely the land in question for the necessary time to acquire title by adverse possession.
Bullock et al. v. Greer et al., 181 Miss. 190, 179 So. 264; Metcalfe v. McCutchen, 60 Miss. 145; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Gillespie v. Magruder, 92 Miss. 511, 46 So. 77; Code of 1942, Sec. 711.
The possession of appellee was not such as to acquire title by adverse possession as all the elements necessary to establish adverse title were not present, in that his possession was not hostile, actual, open, notorious, exclusive and continuous.
Ford v. Wilson, 35 Miss. 490, 504; 1 Am. Jur. 870-871, Sec. 136-137.
The appellee should not be allowed to tack the possession of the Federal Land Bank as his deed from said bank did not cover the land in question, and it is not shown that said bank claimed said land adversely, and if said defendant claims through said bank the burden is upon him to show that said bank claimed said land adversely, and that it was said bank's intention to convey said adverse claim to him.
Crowder v. Neal, 100 Miss. 730, 57 So. 1; Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028, 86 Am. St. Rep. 486; 1 Am. Jur. 883, Sec. 157, 158; 46 A.L.R. 792, 795.
The court should not have quieted and confirmed the title to the strip of land in controversy, but the court should have quieted and confirmed title to the lands as set out in appellant's bill of complaint, and in any event should have quieted and confirmed the title in appellant as against appellee as to the lands, the record title to which was in appellant and which was disclaimed by appellee. The court had no authority to dismiss the appellant's bill of complaint as was done in the final decree.
Osburn v. Board of Sup'rs of Hinds County, 71 Miss. 19, 14 So. 457; Board of Sup'rs of Quitman County v. Stritze, 69 Miss. 460, 13 So. 35; Code of 1942, Sec. 1323.
Hall Hall, Philip Singley and Bernard Callender, all of Columbia, and C.E. Gibson, of Monticello, for appellees.
Appellees have sufficiently shown actual adverse possession for sufficient time to establish title to the land in controversy.
Metcalfe v. McCutchen, 60 Miss. 145; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Gillespie v. Magruder, 92 Miss. 511, 46 So. 77.
The possession of Felix Price can and should be tacked on to the possession of the Federal Land Bank and his predecessors in title.
Crowder v. Neal, 100 Miss. 730, 57 So. 1; Benson v. Stewart, 30 Miss. 49; Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028, 86 Am. St. Rep. 486; 1 Am. Jur. 883, Sec. 158; 1 R.C.L. 719, Sec. 33; 46 A.L.R. 795, 797, Annotations.
When a party comes into a court of equity and asks its active intervention to vest title in him or to remove clouds from his title and cancel the title of a defendant, it is incumbent upon him to allege and show that he has a perfect legal or a perfect equitable title to the property; that if he fails in this, he must necessarily fail in his suit, as, without such a title, he is not the "real owner" within the contemplation and the very language of our statute.
Calvert v. Mathers, 149 Miss. 671, 115 So. 780; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Hale v. Neilson, 112 Miss. 291, 72 So. 1011; Grand Gulf Railroad Banking Co. v. Bryan, 8 Smedes M. (16 Miss.) 234; Hart v. Bloomfield, 66 Miss. 100, 5 So. 620; Griffith's Mississippi Chancery Practice, Sec. 590.
Appellants were entitled to confirmation of their title to the land not in controversy, but the appellees were entitled to have their title confirmed to all the land in controversy as described in the cross-bill, and the decree of the lower court was erroneous in failing to confirm their title to a portion of the land in controversy, and as cross-appellants they are now entitled to a decree confirming the same.
Hall Hall, Philip Singley and Bernard Callendar, all of Columbia, and C.E. Gibson, of Monticello, for appellees, on suggestion of error.
The appellants did not own this land at the time they filed their suit, and they do not own it now. It is abundantly and overwhelmingly proven in the record that appellants' predecessor had fully, effectually, and completely lost title to Joe L. Price by adverse possession over thirty years ago. Hence, Joe L. Price then became the true, legal and equitable owner of a perfect title to this land, and neither appellants nor any of their precedessors ever regained this title. But the result of the decision by this Court, we submit with deference, is to decree appellants to be the owners of the land, when admittedly they are not. Such a plainly unjust result cannot, we respectfully submit, be permitted to stand. Since the beginning of Mississippi's jurisprudence it has been the rule that a complainant in a suit to confirm title to real estate, or to cancel clouds from real estate, must establish a legal or equitable title in himself before he can prevail, regardless of the weakness or lack of title in the defendant.
Scottish American Mortgage Co. v. Butler, 99 Miss. 56, 54 So. 666, Ann. Cas. 1913C, 1236; Hart v. Bloomfield, 66 Miss. 100, 5 So. 620; Huntington v. Allen, 44 Miss. 654; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Burnett v. Bass, 152 Miss. 517, 120 So. 456; Nicholson v. Myres, 170 Miss. 441, 154 So. 282; Broome v. Jackson, 193 Miss. 66, 7 So.2d 829; Hale v. Neilson, 112 Miss. 291, 72 So. 1011; Grand Gulf Railroad Banking Co. v. Bryan, 8 Smedes M. (16 Miss.) 234; Calvert v. Mathers, 149 Miss. 671, 115 So. 780; Nixon v. Porter, 38 Miss. 401; Lusk v. Seal, 129 Miss. 228, 91 So. 386; Mallory v. Walton, 119 Miss. 396, 81 So. 113; Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435; Crowder v. Neal, 100 Miss. 730, 57 So. 1; Benson v. Stewart, 30 Miss. 49; Louis Cohn Bros. v. Peyton, 145 Miss. 261, 110 So. 509; Griffith's Mississippi Chancery Practice, pp. 658-659, Sec. 590; 1 R.C.L. 706, Sec. 18; 1 Am. Jur., Adverse Possession, Secs. 158, 189, 215.
Argued orally by Charles C. Hairston, for appellant, and by Lee D. Hall, for appellee.
Felix H. Price has the record title to 50 acres of land located in Section 30, Township 5 N., Range 11 E., in Lawrence County, Mississippi. Appellant has the record title to lands lying immediately west and south of, and adjoining, the Price land. The west line, north and south, of the Price land is the east line of appellant's land; and the south line, east and west, of the Price land is the north line of appellant's land. Price claims, however, he is the owner, by ten years adverse possession, of certain land lying west of his west line and south of his south line, and which claimed land is within the calls of appellant's deed. Appellant filed a bill to cancel and remove, as a cloud upon its title, Price's claim. Price, by answer, admitted that appellant held the record title to the disputed land; but, by cross-bill, asserted title thereto in himself by adverse possession. Therefore, the burden was upon Price to show that he was vested with title by adverse possession to the disputed area. To do that, under Section 711, Code 1942, it was necessary for him to show that he alone, or he and his predecessors in title together, had had the actual, open, hostile, peaceable, exclusive, continuous possession of the land for ten years, under claim of ownership thereto. McCaughn v. Young, 85 Miss. 277, 37 So. 839. This Price failed to do. Price got the record title to his land under a deed from the Federal Land Bank, dated December 16, 1937. The deed described the land by governmental subdivisions. It did not include the land in dispute. The Land Bank bought the land in 1935 at foreclosure under a deed of trust executed to it by Joe L. Price a number of years prior to the foreclosure, which also described the land by subdivisions and did not include the land in question. While there is proof which would support the finding of the Chancellor that Felix Price, since he obtained the deed from the Land Bank, has exercised over the disputed land the necessary acts to acquire title by adverse possession, there is no proof whatever that the Land Bank, during its period of ownership, ever exercised such acts, or claimed to be the owner of the land in dispute. It is true Price testified that during the period of ownership of the Bank he was its tenant, and that he cultivated some of the land in question; but there is no evidence that the Bank knew this, or that the Bank ever took charge of the disputed land or made any claim thereto, or that the Bank intended to purchase or convey any land except that described in the deed to, and from, it, or that it thought it was so doing. The boundaries between the lands of appellant and appellee, according to all of the conveyances, are straight lines, by governmental subdivisions. The boundary line of the disputed land is very irregular, following the meanderings and windings of an old fence and an old road, or what remains of them. No person could think the descriptions in the conveyances to the Price land could possibly include the land in question. Therefore, any claim of title thereto by adverse possession must needs be based upon a conscious, affirmative intent to claim ownership thereto, and exercise the required acts of ownership thereover, and acquire title solely by that method. There is no proof the Bank did that. The bill was filed in this cause January 22, 1944, which of course stopped the running of the statute of limitations as against Price. He had then owned his land a little over six years. It was necessary that he show that the Bank, as well as Joe L. Price, claimed to be the owner of the land in question, and exercised over it the acts necessary to vest title by adverse possession, for sufficient time to make up the remainder of the ten years. This he failed to do as to the Land Bank.
Reversed and decree here for appellant.
ON SUGGESTION OF ERROR.
It is contended on the suggestion of error herein that the Court should not have reversed the case and rendered a decree here for the appellant for the reason that the proof disclosed that a third party, Joe Price, is not a party to the suit, and was shown by the evidence upon the trial to have acquired a good and perfect title against the appellant by 10 years adverse possession under Section 711, Code 1942. But, the reversal of the case was ordered on the ground that the appellant, The Southern Naval Stores Co., Ltd., was entitled to cancel and remove, as a cloud upon its title, the claim of the appellees Felix Price, et ux., which they asserted under the said 10-year Statute of Limitations. The Court adheres to its former opinion in holding that the said appellees had not acquired title by adverse possession, and that the record title was vested in the said appellant, and we make this response to the suggestion of error only for the purpose of saying that it was not intended by the former opinion that any rights that Joe Price may have in the land should be prejudiced thereby. Moreover, any judgment rendered here adjudging the appellant to be the owner of the land could not be binding as against any claim of Joe Price to the land since the latter is not a party to the lawsuit. It follows, therefore, that the suggestion of error should be, and the same is hereby, overruled.
Suggestion of error overruled.
CONCURRING OPINION.
The evidence tends to show that Joe L. Price, the father of Felix, had acquired title to the small parcels of land here in controversy by adverse possession prior to the time he executed his trust deed to the Federal Land Bank, and that had Joe L. Price been made a party to this suit, the bill by the Naval Stores Company could not have been maintained as to the strip of land and the lower ten acres, adjoining the land actually covered in the Land Bank deed of trust. The trouble with the assertion of title by Felix is that he did not have a deed from his father, but as his father was not a party, the decree ordered by us here does not affect the title of the father, or any conveyance he may now or hereafter make of it, and for that reason I concur in the disposition which we have made of the present appeal.