92 So. 2d 458 | Miss. | 1957
The appellants, Guy Avera, AVheeler Avera and Mrs. Thelma Avera Guest, as complainants in the court be
The appellants alleged that they were the owners of an undivided three-eighths interest in the land involved and that the appellee Turner Lumber Company was the owner of an undivided five-eighths interest in said land. The appellees denied that the appellants owned any interest in said land, and the appellee Turner Lumber Company asserted the full fee simple title to said land under and by virtue of a deed executed to it by Alex Avera and Thomas Avera purporting to convey and warrant the full fee simple title to said property, followed by actual, open, notorious, hostile, adverse and exclusive possession of said land under claim of ownership.
Upon the hearing of the cause, the chancellor rendered a decree dismissing the bill for partition and from this decree the appellants prosecute this appeal.
The facts are not in controversy. For a time prior to October 6, 1913, the land in question was owned by Thomas Avera and Alex Avera, each owning an undivided one-half interest therein. By deed dated October 6, 1913, and filed for record on October 17, 1913, Thomas Avera conveyed to his wife, Mrs. Alice R. Avera, his entire undivided one-half interest in said land. Mrs. Alice R. Avera died intestate on June 1, 1916, leaving as her sole and only heirs her husband, Thomas Avera, and her children, Guy Avera, Wheeler Avera and Mrs. Thelma
The appellants contend that the evidence is insufficient. to show that the full fee simple title to the entire land vested in the Turner Lumber Company by adverse possession, and that the chancellor erred in dismissing the bill for partition. It is the position of the appellants that although the deed from Thomas Avera and Alex Avera to the Turner Lumber Company purported to convey the entire fee simple title, the Turner Lumber Company acquired thereunder only the interest of the grantors in said land, which was an undivided fiveeigthths interest, and that the Turner Lumber Company thereby became a tenant in common with the appellants and is precluded from assei’ting title by adverse possession to the entire land as against the appellants because the proof fails to show that the appellants had knowledge, or the equivalent thereof, of such adverse claim. To support this position the appellants rely -wholly upon the decision of this Court in the case of Nichols v. Gaddis & McLaurin, Inc., 75 So. 2d 625, and contend that such decision is controlling in the case now before us. The appellants praticularly rely upon the following quoted from the syllabi of the case of Nichols v. Gaddis and McLaurin, Inc., supra:
"Mere recording of a fee simple deed by a tenant in common does not impart notice to other cotenants of an adverse claim to the land by the tenant in common.”
"A tenant in common out of possession is entitled to assume that a cotenant in possession holds for all co-tenants, until the tenant out of possession is given knowledge to the contrary, or the equivalent thereof, which must be shown hy clear and convincing evidence.”
The appellants argue that under the authority of the case of Nichols v. Gaddis and McLaurin, Inc., supra, the recordation of the deed from Thomas Avera and
‘ ‘ In order to establish ouster of cotenants by a tenant in common in possession, the cotenants out of possession must have notice of his adverse claim either ‘from actual knowledge or as is sometimes vaguely expressed, by acts equivalent thereto ’, as by conduct so unequivocal*130 that knowledge on the part of the eotenant out of possession must be necessarily presumed.”
It is inconceivable to us under the facts of this case that the appellants did not know that the Turner Lumber Company was in the actual possession of the land and claiming the full title thereto for longer than the statutory period of ten years. Proof of these facts as made by the appellees is not contradicted. This proof shows that the Turner Lumber Company upon acquiring its warranty deed to the entire land in 1927 went into the immediate possession of the land and enclosed it with other land which it owned by a fence for pasture purposes; that it had the land assessed to it and paid all taxes thereon from 1930 to the present time; that it hired a caretaker to look after the land within the enclosure to protect it from trespass and depredation and forest fires; that it cut timber thereon; that it openly exercised all acts of ownership over the land; that it openly claimed and asserted full title thereto; that the father of the appellants and the appellants .themselves lived just across the highway from said land and within a mile or a mile and a half of the land in question; and that the appellants for at least eighteen years after they became of age came back and forth to their father’s old homestead just across the highway from said land, and that one of the appellants, Mrs. Guest, and her husband now live periodically at their father’s old homestead and farm the land surrounding the same; that during all of this period of time from 1927 the Turner Lumber Company has had the land enclosed with a fence, has provided a caretaker to look after it, has cut timber from it, has paid all taxes on it and claimed it openly as its own, and the appellants never asserted any claim or title thereto until the attorney for the appellants wrote a letter to the Turner Lumber Company under date of July 16, 1955, advising that the appellants were claiming an interest in said land. These undisputed facts load to the
The decree of the court, below is therefore affirmed.
Affirmed.