Anderson v. Moore, 84 Miss. 400

Anderson v. Moore

84 Miss. 400 | Miss. | 1904

Whitfield., C. J.,

delivered the opinion of the court.

The defendant in this action of ejectment brought to recover IS acres of land, defended for but 1 acre. In the original plea he claimed that this acre was in the N. W. corner of the S. \ of the N. E. 1-4 of the S. W. 1-4. When the evidence was con-eluded, upon the suggestion of the learned circuit judge, the pleá was amended so as to locate this acre simply in the S. \ of the N. W. 1-4 of the S. W. 1-4, in order to conform to the proof, which proof showed that the house claimed by defendant *404was situated two-thirds north of the south boundary of the 18-acre tract, and one-third below it. The only pretense of claim set up by defendant under any one was an asserted claim under one Maxwell. But the testimony of Mr. Speed, the surveyor, shows plainly that what Richard Moore claimed was “in the two forks of the road,” and that the land and house, which were “in the two forks of the road,” constituted the one-third above referred to as lying south of the south boundary line of the 18-acre tract. In other words, the Maxwell claim is not in the said 18-acre tract at all. So far as the land sued for, therefore, is concerned, the defendant set up no claim under any one, no paper title of any sort, not even title by adverse possession. Tie stood merely on the alleged failure of plaintiffs’ title. The testimony shows, further, that Collins went into possession of this land, and held possession of it for twelve years or more, prior to defendant’s alleged three years’ possession of the Nagle house and land, claiming and exercising ownership over the same ; that the Nagle house was not built during these twelve years when Collins was in possession; and, further, that Welborn and wife never occupied this land as a homestead. The title to this land was in the husband, not the wife; and hence the authorities cited by counsel for appellee are not in point, so far as the wife’s failure to acknowledge that she sealed and delivered the deed is concerned. It is true, the husband also failed to acknowledge that he sealed and delivered the deed, and there is no proof of delivery of the deed, as the act of the husband, except what may be inferred from the fact that the appellants, the remote alienees of Welborn, had possession of the deed, and offered it in evidence on this trial. But without reference to the deed from Welborn and wife, the appellant, on the testimony, was entitled to recover, on his possession alone, against the defendant, who occupied the position of an intruder or trespasser. Possession, such as is shown by this testimony, was enough to warrant recovery, without reference to paper title at all.

Reversed and remanded.