Opinion
No. 39273.
October 4, 1954.
1. Appeal — evidence — objection not properly preserved for review.
Where objection was made to introduction in evidence of answer to cross-bill on ground it was incompetent and ruling was reserved by Chancellor, and subsequently objectors conceded its admissibility, objection was not properly preserved for review. Sec. 1690, Code 1942.
2. Witnesses — failure to waive answer under oath — incompetency as witnesses — waived.
In suit by grantees to cancel claim of grantor's heirs to certain land, wherein heirs made their answer a cross-bill whereby they sought to cancel grantees' claim to the land, cross-bill which required answer under oath, compelled grantees to testify and heirs thereby waived statutory incompetency of grantees to testify as witnesses to establish their claim against estate of grantor. Sec. 1690, Code 1942.
3. Evidence — answer introduced as — admissible.
In such case, answer was responsive and not affected by grantees' incompetency as witnesses, and was admissible for such credit as it was fairly entitled to.
4. Boundaries — agreed line — evidence — sustained decree for complainants.
In such case, evidence in support of grantees' contention, that line marking boundary between adjoining lands of parties had been hacked and blazed at time of purchase by grantees and thereafter recognized by grantor for twenty-four years, sustained decree favorable to grantees.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Itawamba County; WILLIAM H. INZER, Chancellor.
John R. Anderson, Tupelo; Satterfield, Ewing, Williams Shell, Jackson, for appellants.
I. The Court erred in finding that J.T. Stuckey had pointed out the line to W.B. Sallis when the latter purchased said SE 1/4 of Section 12 on December 2, 1905. Allison v. Allison, 203 Miss. 15, 33 So.2d 289; Austin Clothing Co. v. Posey, 105 Miss. 720, 64 So. 5; Coleman v. Kierbow, 212 Miss. 541, 54 So.2d 915; Green v. Mizelle, 54 Miss. 220; Jackson v. Smith, 68 Miss. 53, 8 So. 258; Jacks v. Bridewell, 51 Miss. 881; Kidder v. Barr, 35 N.H. 235; Mask v. Allen (Miss.), 17 So. 82; Phillips v. Thompson (N.Y.), 1 Johns. Chan. 131; Rothschild v. Hatch, 54 Miss. 554; Town of Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757; Yazoo M.V.R.R. Co. v. M. Levy Sons, 141 Miss. 191, 106 So. 525; Secs. 1294, 1609, Code 1942; 30 C.J.S. 872-3; 31 C.J.S. 709-12; Griffith's Miss. Chancery Practice (2d ed.), Secs. 349, 356-7, 571.
II. If such answer was admissible as evidence, and the Court found that J.T. Stuckey had pointed out the line to W.B. Sallis in 1905, such fact did not estop Stuckey and his heirs, the appellants herein, from claiming to the true line under their record title. Anderson-Tully Co. v. Campbell, 193 Miss. 790, 10 So.2d 445; Archer v. Helm, 70 Miss. 874, 12 So. 702; Evans v. Miller, 58 Miss. 120; Goff v. Avent, 122 Miss. 86, 84 So. 134; Hoyer v. Edwards, 182 Ark. 624, 32 S.W.2d 812; Teasley v. Roberson, 149 Miss. 188, 115 So. 211; 8 Am. Jur., Secs. 73-5, 77-8, 83-4 pp. 797, 799, 801, 805-6; Vol. VI, Thompson on Real Property (Perm. ed.), Secs. 3270, 3280-81, 3284 pp. 439, 454.
III. The Court erred in finding that the appellees had had adverse possession of the disputed area for a sufficient period to give them title thereby. Gerard v. Gill, 195 Miss. 726, 15 So.2d 478; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Puryear v. Austin, 205 Miss. 590, 39 So.2d 257.
A. Evidence for the complainants, appellees herein, the Sallises.
B. Evidence for the defendants, appellants herein, the Stuckeys. Ball v. Martin, 217 Miss. 221, 63 So.2d 833; Broadus v. Hickman, 210 Miss. 885, 50 So.2d 717; Cohn v. Smith, 94 Miss. 517, 49 So. 611; Cook v. Mason, 160 Miss. 811, 134 So. 139; Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Ford v. Wilson, 35 Miss. 490; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Louisville, N.O.T. Ry. Co. v. Buford, 73 Miss. 494, 19 So. 584; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Mitchell v. Bond, 84 Miss. 72, 36 So. 148; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Page v. O'Neal, 207 Miss. 350, 42 So. 391; Parks v. Simmons (Miss.), 52 So.2d 14; Vance v. Vance, 216 Miss. 816, 63 So.2d 214; White v. Turner, 197 Miss. 265, 19 So.2d 825.
Brown Elledge, Fulton, for appellees.
I. In the lower court, appellants conceded that the sworn answer was admissible in evidence, and cannot now raise the question on appeal. Griffith's Miss. Chancery Practice (2d ed.), Sec. 676.
II. The sworn answer was admissible, responsive, and entitled to the weight given it by the lower court. Austin Clothing Co. v. Posey, 105 Miss. 720, 64 So. 5; Carson v. Flowers, 15 Miss. 99, 7 Sm. M. 99; Fant v. Fant, 173 Miss. 472, 162 So. 159; Greenleaf v. Highland, 1 Miss. (Walker) 375; Kidder v. Barr, 35 N.H. 235; Money v. Dorsey, 15 Miss. 15, 7 Sm. M. 15; Petrie v. Wright, 14 Miss. 647, 6 Sm. M. 647; Phillips v. Thompson (N.Y.), 1 Johns. Chan. 131; Saffold v. Horne, 71 Miss. 762, 15 So. 639; Secs. 1294, 1690, Code 1942; 30 C.J.S. 872-3; Griffith's Miss. Chancery Practice (2d ed.), Secs. 364, 594 (Note 65).
III. Appellants are estopped, and the lower court correctly so held. Anderson-Tully Co. v. Campbell, 193 Miss. 790, 10 So.2d 445; Archer v. Helm, 70 Miss. 874, 12 So. 702; Evans v. Miller, 58 Miss. 120; Goff v. Avent, 122 Miss. 86, 84 So. 134; Teasley v. Roberson, 149 Miss. 188, 115 So. 211; Vicksburg M.R.R. Co. v. Ragsdale, 54 Miss. 200; 8 Am. Jur., Boundaries, Secs. 72-5, 77-8, 84; 19 Am. Jur., Estoppel, Sec. 2 p. 750.
IV. Appellees have title by adverse possession, and the lower court correctly so held. Alexander v. Hyland, 214 Miss. 348, 58 So.2d 826; Ball v. Martin, 217 Miss. 221, 63 So.2d 833; Batson v. Smith, 211 Miss. 428, 51 So.2d 749; Bowlin v. Dye, 214 Miss. 710, 59 So.2d 327; Broadus v. Hickman, 210 Miss. 885, 50 So.2d 717; Cook v. Mason, 160 Miss. 811, 134 So. 139; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Evans v. Harrison, 130 Miss. 157, 93 So. 737; Gerard v. Gill, 195 Miss. 726, 15 So.2d 478; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Greer v. Pickett, 127 Miss. 739, 90 So. 449; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Lott v. Sebren, 210 Miss. 99, 48 So.2d 626; Louis Cohn Bros. v. Peyton, 145 Miss. 261, 110 So. 509; Louisville, N.O.T. Ry. Co. v. Buford, 73 Miss. 494, 19 So. 584; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Metcalfe v. McCutchen, 60 Miss. 145; Mitchell v. Bond, 84 Miss. 72, 36 So. 148; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Page v. O'Neal, 207 Miss. 350, 42 So.2d 391; Parks v. Simmons (Miss.), 52 So.2d 14; Puryear v. Austin, 205 Miss. 590, 39 So.2d 257; Schuler v. McGee, 127 Miss. 873, 90 So. 713; Snowden McSweeny Co. v. Hanley, 195 Miss. 682, 16 So.2d 24; Vance v. Vance, 216 Miss. 816, 63 So.2d 214; White v. Turner, 197 Miss. 265, 19 So.2d 825; Griffith's Miss. Chancery Practice (2d ed.), Sec. 676.
Mrs. T.S. Sallis and husband, W.B. Sallis, by their bill in the chancery court, sought to cancel the claim of J.G. Stuckey and others, the heirs of J.T. Stuckey, deceased, to eighty acres of land, more or less, as described therein. The answer of the defendants denied the substantial allegations of the bill, and they made their answer also a cross bill, whereby they sought a cancellation of the claim of the complainants and the recovery from them of a sum of money for the mining of bentonite on the land. Answer under oath thereto was not waived.
In their answer under oath to the cross bill, the complainants reiterated the substantial allegations of their original bill, namely, that when they purchased the land in question from J.T. Stuckey, he pointed out the south boundary thereof as a blazed and hacked line, put them in possession, and that they have held the same adversely ever since. When the evidence was concluded, the cause was taken under advisement; and after the submission of briefs, the court rendered a written opinion, awarding the complainants the relief for which they prayed, and denying the defendants any relief. The decree conformed to the chancellor's opinion, and the defendants appealed.
On December 2, 1905, J.T. Stuckey, being the owner of the SE 1/4 of Section 12 and the NE 1/4 of Section 13, Township 11, Range 9 East, and the W 1/2 of the SW 1/4 of Section 7, Township 11, Range 10 East, conveyed the lands in Sections 12 and 7 to W.B. Sallis, retaining unto himself the land in Section 13. The dispute arose over the location of the line between Sections 12 and 13, being the line between the parties.
Two surveys were involved, one by S.M. Rotten, and the other by B.J. Brigance. The one by Rotten runs from a blackgum corner west along a blazed and hacked line to an iron stake. Under the Brigance survey the blackgum corner and the iron stake are approximately 250 and 123 feet, respectively, south of his line. If the land of the complainants extends to the Rotten line, they are entitled to prevail. On the other hand, if their land extends only to the Brigance line the defendants should have been successful.
It was the contention of the complainants that, when they purchased the land from J.T. Stuckey, he pointed out the south line thereof; it was hacked and blazed; he thereafter recognized this line; it coincides with the Rotten survey; and that they have been in possession of the land north of that line ever since.
On the contrary, it was the contention of the defendants that Stuckey did not point out the line; the true government lines should govern; the Brigance survey is in accord with those lines; the complainants have not been in adverse possession; and that the first knowledge of an adverse claim thereto was in 1948 or 1949.
Complainants offered evidence substantially to this effect: the hacked line, practically identical with the Rotten survey, has been in its present location 35 years. Sallis had a pasture on some of the land in dispute, and a part of it was fenced. A house, which he built on the land in Section 7, was north of the line, if extended. Stuckey was present when the house was "raised." The Brigance line, extended, would go north of that house. In 1917, the timber of Sallis was cut up to that line. In 1922, Stuckey and Sallis walked the line between them, with one Moseley hacking, and the line so hacked was actually 10 or 12 feet south of the Rotten line. In 1927, when Stuckey and Sallis sold their timber to different purchasers, those purchasers, respectively, cut their timber up to this hacked line. In 1936, when one buyer purchased timber from both Stuckey and Sallis and when both of them were present, Stuckey pointed out the line, the same as the Rotten line, and the purchaser cut the timber and paid them accordingly. Again in 1945, the timber on the plot, which was stripped for the bentonite pit, was cut and sold as the property of Sallis. The only evidence that Stuckey pointed out the south boundary at the time of sale is found in the answer of the complainants under oath to the cross bill.
The evidence for the defendants disclosed a contract by Stuckey, of date of March 24, 1937, for a gas and mineral exploration of the N 1/2 of NE 1/4 of Section 13, and an oil lease, of date of May 15, 1944, on this governmental subdivision. Without going into detail, it is sufficient to say that the evidence sharply disputed the complainants' possession and use of the land. It did not affirmatively deny that Stuckey pointed out the line at the time of sale, nor did it so deny that he pointed out and recognized the line in 1922 and 1936.
The appellants contend here that the answer to the cross bill was not admissible in evidence; but if so, Stuckey's pointing out the line did not estop him and his heirs from claiming to the true line under their record title; and that the appellees did not have adverse possession of the disputed area for a sufficient time to give them title thereby.
(Hn 1) When the answer to the cross bill was offered in evidence, the defendants objected on the ground that such evidence was incompetent under Section 1690, Code of 1942. A ruling was reserved by the chancellor. However, in their subsequent brief before him, the defendants conceded its admissibility. Thus the point was not properly preserved for review here. Griffith's Miss. Chancery Practice, 2d Ed., Section 676.
(Hn 2) At any rate, the cross bill required answer under oath. It compelled the complainants to testify. Hence the defendants waived the statutory incompetency of the complainants. Birchett v. Hundermark, 145 Miss. 683, 110 So. 237. (Hn 3) The answer was responsive and it was not affected by their incompetency as witnesses. Griffith's Miss. Chancery Practice, 2d Ed., Section 364; Saffold v. Horne, 71 Miss. 762; Fant v. Fant, 173 Miss. 472, 162 So. 159. The answer was obviously admissible for such credit as it was fairly entitled to. Section 1294, Code of 1942; Griffith's Miss. Chancery Practice, 2d Ed., Section 570; Money v. Dorsey, 15 Miss. 15.
(Hn 4) On the sharply disputed issue of fact as to possession, the principle in Bowlin v. Dye, 59 So.2d 327 (Miss.), seems directly in point. In that case, it is true, McGehee and Nunnery put a fence on the line, which both of them recognized, and McGehee and his successors in title remained in possession for more than ten years thereafter. In the case here, in 1922, Stuckey and Sallis walked their line and Moseley hacked it. This was wild land. The chancellor, if he believed this evidence, was justified in concluding that there was a mutual recognition of this line, since the affected parties were both present, and that no other buffer, such as a fence, was necessary to be placed between them. Again in 1936, according to the evidence, the parties repeated their previous recognition. Twenty-four years elapsed between the date of the first recognition and Mr. Stuckey's death, without any proper effort to nullify the same. See also Kornegay v. Montgomery, 194 Miss. 274, 12 So.2d 423; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Louis Cohn Brothers v. Peyton, 145 Miss. 261, 110 So. 509.
The decree of the lower court is sustained by substantial evidence, and the cause is therefore affirmed.
Affirmed.
Roberds, P.J., and Hall, Holmes and Ethridge, JJ., concur.