Opinion
No. 38532.
November 17, 1952.
1. Adverse possession — grantor in deed of conveyance.
A party who believed that he owned the land in question and had been in the exclusive occupancy thereof for more than ten years conveyed it to his son, but the son never took possession and the grantor and his heirs continued in the actual occupancy as theretofore; and it having been ascertained that the government still owned the land, a daughter of the original grantor obtained a patent for it from the government and thereupon conveyed it to her father, both of which instruments were duly recorded, and the father and his heirs, who paid all the taxes, remained in the exclusive occupancy for approximately 15 years before the grantees of the son attempted in any manner to obtain possession, during all of which time the son's grantees had not made any demand for rent or paid any taxes: Held, that the original grantor and his heirs acquired title by adverse possession.
2. Adverse possession — grantor's adverse possession — initiated how.
The grantor's adverse possession may be initiated by actual notice of hostility, or by the retention of actual possession and the exercise of dominion over the property consistent only with a claim of exclusive and adverse right, either being sufficient in the absence of a statutory requirement of actual notice.
3. Adverse possession — ouster — recording of patent and deed to party in possession.
The recording of the patent to the daughter and of her deed to her father as mentioned in the first above headnote constituted an act of ouster as against the grantees of the son.
4. Adverse possession — payment of taxes.
Payment of taxes is a very important and strong evidence of a claim of title when such payments have been made by the party in possession over a long period of successive years.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Jones County; ROY P. NOBLE, Chancellor.
Matthew Harper, Jr., for appellants.
This Court has consistently followed the doctrine of after acquired title for many, many years, and one of its most recent declarations relative to said doctrine is set forth in the case of Meyers v. American Oil Co., 192 Miss. 180, 5 So.2d 218, wherein this Court said at page 186 of the Mississippi Reports: "Nothing is better settled in this state than the rule that the grantor and all persons in privity with him shall be estopped from ever afterwards denying that, at the time his deed of conveyance was executed, he was seized of the property which his deed purported to convey, and that mortgages and deeds of trust are within this rule. By statute, Sec. 2125, Code 1930, the rule is extended even to quitclaim deeds. The effect of this doctrine of estoppel by deed is the same as if in the deed itself, or in the mortgage, there had been inserted with valid force the express provision that it then and there conveyed not only all the title then possessed by the grantor in the property therein described, but all that he might thereafter acquire; wherefore to give that full and adequate efficacy to the rule which its nature and reasons require, there must be included as inherent in it the element that any after-acquired title, so far as concerns the grantor and his privies, relates back as of the date of the original deed — or, as sometimes phrased, the estoppel runs with the land."
Applying the doctrine of after acquired title to the facts in this case, it cannot be but that the acquisition of title by Mr. H.C. Easterling, deceased, husband and father of the appellees, from his daughter, Mrs. Marjorie Velma Easterling Young, in 1935, inured to the benefit of the appellants, who claim under and through the said H.C. Easterling, deceased.
As there can be no question but that the doctrine of after acquired title comes into play under the facts as set forth in this record, the question then resolves itself into the proposition as to whether the appellees acquired title by adverse possession, or to put it in another manner, whether the possession of the said H.C. Easterling and his heirs at law, the appellees, was sufficient to put appellants on notice of such adverse claim.
The general rule as to the type notice required to be given by a grantor to a grantee as to the adverse claim of the grantor against the grantee is set forth in Am. Jur., under the heading of Adverse Possession, in Secs. 47 and 48, pp. 818, 819, Vol. 1.
The fact that a grantor remains in possession and uses the premises as before the conveyance is not necessarily controlling, even where such grantor pays taxes on such property. While there is some conflict in the decisions, the general rule and the weight of authority is set forth in 2 C.J.S., Sec. 95, Adverse Possession, pp. 654, 655.
The Supreme Court of Mississippi has consistently followed the general rule as set forth in the cited texts as is clearly shown in the case of Evans, et al. v. Shows, et al., reported in 180 Miss. 518, 177 So. 786.
This case is almost identical with the case at bar even as to the factual situation and is binding upon this Court unless expressly overruled.
Counsel desires to stress that this is a case wherein appellees claim under and by virtue of adverse possession supposedly created by the occupancy of H.C. Easterling, deceased, and his heirs. It should be borne in mind that there is absolutely no color of title in and to the appellees and that the degree of proof required as to such purported adverse possession is stronger than where one can claim under color of title. With the exception of the heirs at law of H.C. Easterling, deceased, there is absolutely no proof from any other person of the cultivation of any portion of said land and scant evidence, if any, of any use of said property from the year 1935 until about two years prior to the filing of this lawsuit. It is submitted that in view of the application of the doctrine of after acquired title, it was mandatory upon appellees to prove open, notorious, hostile, adverse and continuous possession of H.C. Easterling and his heirs at law for a period of over ten years from 1935 after putting the Walkers on notice of such adverse claim. It is respectfully submitted that the testimony in this record fails to disclose such possession and notice required and that the chancellor was manifestly wrong in so holding.
W.S. Welch, David C. Welch and Denton Gibbes, for appellees.
The latest case from this Court on the question of a grantor to claim by adverse possession against a grantee is the case of Batson v. Smith, et al., 211 Miss. 428, 51 So.2d 749, which case was decided in April of 1951. The facts in Batson v. Smith are not unlike the facts in this case.
In 2 C.J.S., Adverse Possession, Sec. 95, p. 653, the rule is stated as follows: "There is nothing in the relation of vendor and vendee by deed executed and not executory which will prevent the vendor who may remain in possession, or who may afterward take possession, from claiming adversely to the vendee and relying on the statute of limitations. The covenant of warranty contained in the deed will not defeat title by limitations acquired after the deed. Such title is no breach of the covenant, which cannot be extended to cover future laches of the grantee whereby he loses the title conveyed to him."
And as to the kind of notice of the assertion of right and claim of ownership, it is further stated in 2 C.J.S., Adverse Possession, Sec. 95, p. 654, that: "The grantor's adverse possession may be initiated by actual notice of hostility, or by retention of actual possession and exercise of dominion over the property consistent only with a claim of exclusive and adverse right, either being sufficient in the absence of a statutory requirement of actual notice, and, even where the statute requires actual notice, the grantee is bound to take notice, when brought to his attention, of such subsequent conduct on the part of the grantor as amounts to an assumption of title in his own behalf. Among other acts which have been held sufficient to initiate an adverse holding by the grantor are: Remaining in possession for the statutory period, openly claiming the land as his own; * * *."
Counsel for appellants cites as an authority for his contention, the case of Myers v. American Oil Co., 192 Miss. 180, 5 So.2d 218. The case is not in point here and has no application to the facts of this case. The holding of the Court in this often cited case, was explained and limited in the case of Pettis v. Brown, et al., 203 Miss. 292, 33 So.2d 810. We think Pettis v. Brown is controlling here. It is in harmony with Batson v. Smith, supra.
In the case at bar H.C. Easterling made a conveyance of the land when the title was still in the government. His daughter made application and homesteaded the land and received a patent therefor. She remained in possession until she sold to her father, H.C. Easterling, and after the death of H.C. Easterling the possession of his heirs at law was tacked to the possession of the patentee to make more than ten years' possession after the issuance of the patent before the filing of the suit.
It was not necessary for the appellees to write to the appellants or to go to see the appellants and give them verbal notice of their claim. It is sufficient that they remained in possession claiming to be the owners and the testimony certainly shows this. They showed ownership by cultivating the land, by pasturing on the land, by maintaining fences on it, making disposition of it by deed and by paying taxes on the land. That is a very important and significant fact — the payment of taxes. Ordinarily people who do not own land do not have it assessed to them and pay taxes thereon year after year.
Another very recent case from our Court limiting and explaining Myer v. American Oil Co., supra, and relied upon by the appellants, is the case of W.S. Pettis, Jr., et al. v. Brown and Windham, 203 Miss. 292, 33 So.2d 809. The case is absolutely in point, as we see it, and the Court referring to Myer v. American Oil Co., supra, said: "On its facts, clearly within the rule here under consideration and the broad language therein relied on by the appellants must be so limited and must not be understood to mean that the grantor in a deed which conveyed a perfect title to the grantee is thereafter forever estopped from reacquiring the land after title thereto has passed from the grantee to others through no fault of the grantor."
We have made reference to the Mississippi cases with which we are familiar that we believe to be absolutely in point. We now call the Court's attention to Sec. 65, Vol. 21 C.J., Estoppel, p. 1086. From that we quote: "Sec. 65(C) By Adverse Possession. A subsequent possession by the grantor of the premises conveyed for the period prescribed by the statute of limitations will inure to his benefit and not to the benefit of the grantee."
While we feel that Batson v. Smith, supra; Pettis v. Brown and Windham, supra; and Evans v. Shows, supra, are conclusive, we cite cases from other jurisdictions that we feel are in point and are decisive: Moore v. McDonald, 98 S.W. 662; Harn v. Smith, 15 S.W. 240; Dillard v. Cochran, et al., 153 S.W. 662; Doolittle, et al. v. Robertson, et al., 19 So. 851; Smith v. Montes, 11 Tex. 24 [ 11 Tex. 24]: Horbach v. Boyd, 89 N.W. 644; Newton v. Easterwood, 154 S.W. 646; Wright v. Doherty, 50 Tex. 34; Carlton v. Seaboard Railroad Co., 85 S.E. 863; Jones v. Miller, 3 Fed. 384, 1 McCrary 535; Garabaldi v. Shattuck, 70 Cal. 511, 11 P. 778; McClendham v. Stevenson, 118 Iowa 106, 91 N.W. 925; Hines v. Robinson, 57 Me. 324, 99 Am. Dec. 772; Traip v. Traip, 57 Me. 268; Stearns v. Hendersass, 9 Cush. 497, 57 Am. Dec. 65; Sherman v. Kane, 86 N.Y. 57; Kent v. Harcourt, 33 Barb. 491; Chatham v. Lansford, 149 N.C. 363, 63 S.E. 81.
The courts seem to hold generally that there must be a flag flying somewhere to indicate the claim of ownership. Now, in this case we have the cultivation of a part of the land. That is certainly a flying of the flag from year to year. Then we have the payment of taxes and, of course, that is the flying of a flag. The recording of the patent hoisted another flag. The deed from the patentee to her father was the hoisting of another flag. The pasturing of cattle and horses on the land was the flying of a flag. So, it would seem that the facts in this case show adverse possession for a period of more than ten years beyond the shadow of a doubt. The testimony offered by the appellees must be taken as true, because it is all reasonable and is uncontradicted. The chancellor was not confined to a consideration of the actual words of the witnesses, but could draw every reasonable inference therefrom.
In view of the contention of counsel for appellants that the appellees owed some duty to notify the appellants of their claim, we find the case of McMahon, et al. v. Yazoo Delta Lbr. Co., 92 Miss. 459, 43 So. 957, to say the least, very instructive and interesting. The Court said: "The only rule of general applicability is that the facts relied upon to establish adverse possession must always be as distinct as the character of the land reasonably admits of, and must be exercised with sufficient continuity to acquaint the owner, should he visit the land, with the fact that a claim of ownership adverse to his title is being asserted. Trivial and disconnected facts, doubtful and equivocal in their character, and which do not clearly indicate the intention with which they are performed, cannot be regarded as amounting to possession; otherwise, a man might be disseised without his knowledge, and the statutes of limitation might run against him while he had no ground to believe that his seisin had been interrupted."
From 1 Am. Jur., Adverse Possession, Sec. 133, p. 870, we find the following: "The question in such cases is whether the enclosure, like other acts of possession, is sufficient to `fly the flag' over the land and put the true owner upon notice that his land is held under an adverse claim of ownership. And it has been said that an enclosure having no purpose of physical exclusion, may be sufficient to indicate the true boundaries of an adverse claim even though it is only a mere furrow turned with the plow around the land, or a line marked by cutting away the brush."
Of course, the testimony in this case shows that the land was not only under fence, but the fence was maintained from year to year and any passerby could see that the fence was being repaired from time to time, that the land was in cultivation and used for pasturage purposes.
Ray M. Walker and Merle R. Walker, as trustees for Mrs. Minnie Walker and Mrs. Mary T. Walker, by their bill of complaint against Mrs. Julia Easterling and others, the heirs at law of H.C. Easterling deceased, sought (1) to cancel the claims of the defendants to certain lands described in the bill, (2) writs of possession thereto, and (3) a perpetual injunction against the disturbance of their possession. The defendants, in their answer, denied that the complainants were entitled to possession of the land in controversy, and asserted that they were the owners of said land by virtue of a patent from the government and by adverse possession for the statutory period. At the conclusion of the evidence the chancellor made a finding of fact in favor of the defendants and dismissed the bill of complaint, with prejudice. From the decree entered the Walkers appeal.
The land here in controversy is 23 acres south of Possum Branch in the E 1/2 of SE 1/4, Section 21, Township 6 N, Range 10 W.
(Hn 1) In 1898, H.C. Easterling obtained a deed to the whole 80. His residence was situated to the east, on another 40, the NW 1/4 of SW 1/4 of Section 22. He fenced his entire acreage about 1902. He put 7 of the 23 acres in cultivation, and made the balance available for pasture. He and his wife conveyed the 23 acres to their son, G.B. Easterling, on May 5, 1911. Following mesne conveyances Mrs. Minnie R. Walker obtained a deed thereto on August 12, 1925. However, at no time during this period did H.C. Easterling and wife surrender possession of this land. On the contrary, they remained in possession and continued to cultivate and pasture the same.
Shortly after Mrs. Walker obtained her deed, an attorney who was investigating her title, wrote H.C. Easterling that the government still owned this land. Sometime during 1928, Margie Velma Easterling, a daughter, applied for a patent to the whole 80. She lived in a house and utilized a tenant house on the north 40, and continued to cultivate and pasture the 23 acres. She secured a patent, dated November 19, 1931, and thereafter, on January 21, 1935, deeded the whole 80 to her father. The patent and the deed were filed for record on January 31 and February 3, 1935, respectively. The H.C. Easterlings continued their possession and use of the land until his death in 1942 or 1943, and his widow and children have so continued such possession and use ever since.
After Mrs. Walker obtained her deed in 1925, at no time did she, or anyone for her, demand possession of this land, or demand the payment of rent, or pay the taxes thereon, or do anything to evidence a claim to the land. If she had seen the land, or made the slightest inquiry about it, obviously she would have ascertained that H.C. Easterling had continued in possession after the deed to his son, and was then in possession, in spite of the fact that there were several holders of deeds intervening between G.B. Easterling and herself. She must have learned from her attorney that no patent to this land had ever been issued by the government, because he so advised the H.C. Easterlings. She must have known, therefore, that, if the government had title to this land, her title was worthless. Her failure to do anything over a period of 25 years in an effort to gain possession of this land is strong evidence that she was not claiming any interest therein.
Besides, when the H.C. Easterlings found out that the government had not parted with the title, they thought that previous conveyances were null and void; and thereafter Margie Velma Easterling obtained title from the government and her patent and the deed to her father were placed of record. Approximately 15 years then elapsed before the complainants attempted to gain possession.
In Batson v. Smith, 211 Miss. 428, 51 So.2d 749, after the Smiths conveyed the 40-acre tract to Prentice, they continued in possession of 14 acres thereof for more than 30 years, just as the H.C. Easterlings, after the conveyance to their son in 1911, continued in possession about 40 years. In that case, it was said that such a conveyance "does not of itself prevent the grantor from acquiring title by adverse possession against his grantee". It was recognized that neither the relation of vendor and vendee in that deed nor the covenant of warranty therein was sufficient to deprive the Smiths from claiming adversely and relying on the statute of limitations. The opinion cited with approval 2 C.J.S., Adverse Possession, Sec. 95, page 654, which is in part as follows: (Hn 2) " The grantor's adverse possession may be initiated by actual notice of hostility, or by retention of actual possession and exercise of dominion over the property consistent only with a claim of exclusive and adverse right, either being sufficient in the absence of a statutory requirement of actual notice, . . ." (Emphasis supplied). See also Cummins v. Dumas, 147 Miss. 215, 113 So. 332.
(Hn 3) The recordation in 1935 of the patent to Margie Velma Easterling and her deed to H.C. Easterling constituted an act of ouster. In the recent case of Boyd, et al. v. Entrekin, et al., 209 Miss. 51, 45 So.2d 848, it was said: "When Mrs. Ladner, on March 28, 1902, recorded her deed from Randolph Batson, she gave notice to the world that she claimed to be the owner of the land. That act, as against anyone else claiming the land, was an act of ouster." See also Chatman v. Carter, 209 Miss. 16, 45 So.2d 841, where it was held that the execution of an oil and gas deed by the claimant was evidence of ouster. See also Peeples v. Boykin, 132 Miss. 359, 96 So. 177; Davis v. Gulf Refining Co., 202 Miss. 808, 32 So.2d 133; Alewine v. Pitcock, 209 Miss. 362, 47 So.2d 147.
Neither Mrs. Walker, nor anyone for her, ever demanded that the Easterlings pay rent. And it has been held that the taking of rents and profits in joint tenancy, is a claim of exclusive ownership. Iler v. Routh's Heirs, 3 How. 276.
Mrs. Walker paid no taxes whatever on this land. On the contrary, the Easterlings not only paid all taxes from 1935 to the date of the trial below, but had also paid the taxes from the date of their first acquisition of the property. In McCaughn v. Young, 85 Miss. 277, 37 So. 839, this Court cited with approval certain quotations in Holtzman v. Douglas, 18 Sup. Ct. 65, 42 L.Ed. 466, as follows: (Hn 4) "Payment of taxes . . . is very important and strong evidence of a claim of title; . . . the payment of taxes on land for twenty-four successive years by the party in possession was powerful evidence of the claim of right to the whole lot upon which the taxes were paid." See also Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703.
Appellants cite several cases and rely strongly on Evans v. Shows, et al., 180 Miss. 518, 177 So. 786. In that case, the parties represented by Shows had a perfect record title from the common source, John and Cassie Calvert. The parties represented by Evans claimed as heirs at law of the Calverts and by virtue of a deed which described land in another government subdivision. Both of these claims were held to be insufficient to constitute color of title. There was no proof that the Calverts, after the execution of their deeds, asserted a claim adversely to their grantees, or that prior to their death, during their continuance in possession, they gave any notice of their claim to their vendees. After the death of the Calverts, some of the appellants paid rents. Others used, cultivated and claimed small, scattered patches, without payment of rent, for the statutory period. The opinion held that, in the absence of color of title, the adverse possession which they exercised gave title only to the land which they adversely occupied but that "there was no evidence from which the court below could determine their location". The opinion, however, recognized that the maker of a deed, who remains in possession, may bring notice of his adverse claim to the attention of his grantee, and thenceforth claim by adverse possession the land described in his deed.
The subsequent acquisition of a paramount title from the government, plus the great factual difference as to adverse possession, completely distinguishes the present case from the Evans case, supra.
The decree of the learned trial court is therefore affirmed.
Affirmed. McGehee, C.J., and Alexander, Kyle and Ethridge, JJ., concur.