81 Miss. 714 | Miss. | 1902
delivered the opinion of the court.
On September 11, 1901, appellee filed his declaration in trespass, charging that appellant forcibly and maliciously tore down and removed a storehouse of plaintiff from land of which he was the owner, in actual possession, and removed the same to. land belonging to defendant, and converted it to his own use. The case went to trial on the plea of not guilty — the only plea filed in the case — and Williams recovered damages, both actual and exemplary. From Avera’s own statement as a witness in his own behalf, his act was a grave trespass, ■ in contempt of law.; and if Williams was entitled to any recovery, punitive damages were a matter of course, and the assessment by the jury very lenient indeed.
Several persons bearing the name of Av.era appear in this record, but the appellant, W. W. Avera, is not in privity of estate with any of them, except upon a claim of his to be hereafter noticed. Formerly one Samuel W. Avera was the owner of the land on which the storehouse was subsequently erected, and erected by him — so he says ; the same being a part of a tract he occupied as his family homestead. On August 1, 1891 — more than ten years before these proceedings — he" conveyed to one Lawrence A. Avera, but his wife did not join in the conveyance. This conveyance was therefore void, but nevertheless was available as color of title to a claim of bar by the statute of limitations on adverse possession, and good as against strangers. It is, besides, distinctly shown in this record that Samuel W. Avera and his wife havé never set up any claim since the deed was made, and urge none now, but repudiate any interest in it. They moved to another place, and acquired at once another homestead, on which they now livé. The grantee, Lawrence A. Avera, with his wife, took possession and occupied the land as a homestead:; and so Lawrence, to say the least of it, was in under color of title. While so in possession the house which is the subject of this trespass was used as a country store. On December 8, 1896, this
.. Even if Mr. Banks had any interest in the storehouse and lot in virtue of the deed made and put in the safe as above set forth, his nonjoinder could not be availed of in the absence of written notice filed with the plea. Code, § 664.
Affirmed.