Brocks-Scanlon Co. v. Childs

74 So. 147 | Miss. | 1916

Sykes, J.,

delivered the opinion of the court.

The appellee, E. H. Childs, filed suit in the circuit court of Marion county against the appellant, Brooks-Scanlón Lumber Company, in an action,of trespass. The declaration alleged that the plaintiff was in possession and was the owner of certain lands therein described, and that the defendant without the consent and over the protest of plaintiff burned one hundred and twenty-four panels of plaintiff’s fense of the value of twenty-five cent per panel, and boxed for turpentine purposes the trees on about one hundred acres of plaintiff’s land. The defendant pleaded the general issue, and gave notice thereunder that it would prove that the title to the land was not in the plaintiff, but was in the defendant. The testimony in the case failed to show the fence of plaintiff was burned by any of the agents or employees of the defendant. The principal contention in the case is whether or not the appellee is the owner of the lands which were boxed for turpentine purposes by appellant. The testimony showed that the lands involved in this controversy were swamp and overflowed lands, the title to which was granted the state by the United States under the act of Congress approved September 28, 1850. The state granted this land to Dave Stock in 1883, and by successive conveyances this record title is now vested in the appellant. The testimony of the appellee showed that under a void patent the state of Mississippi granted this land to the Pearl River Improvement & Navigation Company in 1871. Also appellee introduced a forfeited tax patent from the state to Samuel Huggins, dated May 2, 1881, which patent was void because the state had not at that time parted with its title to this land as swamp and overflowed land. Huggins sold this land (section 35) to C. W. Tynes in 1889. Tynes sold the land by parol in about the year 1890 to one Corley. Corley built a cabin, a crib, and a smokehouse on the land, and cleared up about fourteen acres of it, and inclosed the field with a fence. He lived there abóut two years, and then sold the same by parol to appellee. It seems that each party in making a parol sale of this land would turn over to his vendee the void deeds obtained from the state of Mississippi and the deed from Huggins to Tynes. The appellee went into possession of the land and cultivated the fourteen acres that had been cleared. He has had actual possession of' this cleared land since 1892, and is claiming a constructive possession of the lands involved in this controversy fwhich controversy does not involve the fourteen acres of cultivated land) by virtue of his alleged parol color of title. The testimony of appellee does not positively show just how many acres he bought from Corley, but from an examination of his entire testimony it is evident that he means that he bought all of the land claimed by his vendor. From a reference to the void patent and deed turned over to appellee, it is clear that his vendor, if he claimed any other land except that actually cultivated, claimed the entire section 35.- However, counsel for appellee limit this claim in their brief to the one hundred and twenty acres of land described in the declaration. The cultivated land is not a part of the land involved in this suit. There is no claim whatever that plaintiff had actual possession of the lands in suit. His claim is based solely upon a constructive possession under parol color of title. Neither Huggins, Tynes, nor Corley ever had title to this land. If the parol color of title of appellee were valid as such, then he has a good title by virtue of this possession since 1892. The appellant asserts a hostile and different title to that of appellee. In a great many states it is held that there is no such thing as a parol color of title. In fact the great weight of authority sustains this view of the question.

“As heretofore shown the weight of authority is to effect that a written instrument is necessary to give color of title, and where this view prevails a vendee or donee in possession under a parol gift or purchase holds without color of title, although his vendor may have what would he color of title in him if he were in possession of the premises. But in jurisdiction where a written instrument is unnecessary a person holding under parol purchase or gift is considered as holding under color of title.” 2 Corpus Juris, section 393, p. 196.

See, also, section 326, p. 170, Id.

“The authorities do not agree as to the necessity of having ‘color’ of title evidenced by a writing. In many states a writing is considered to be indispensable either as a matter of general law, or because of statutory re.quirements. In some jurisdiction, however, it is recognized that color of title may exist in the absence of a writing. Thus it has been asserted that one may be in possession under color of title, although he entered by virtue of a parol contract of sale. So, color of title may be acquired by descent cast upon heirs by the death of the ancestor, even though the ancestor was originally a trespasser, and in possession under claim of right only. Where the ancestor was never in possession, however, a conveyance-to the ancestor cannot avail his heirs as color of title upon their taking possession after his death, and an exhaustive examination of the cases discloses that, outside of the acquisition of color of title by ‘descent east’ as above mentioned, statements to the effect that a writing is unnecessary have resulted from the unwarranted intermingling of the terms ‘color’ and ‘claim’ of title which has been spoken of heretofore. That one may acquire a good title to land by the open and notorious pos session thereof for the required time, as his own, is beyond question. Such occupancy, however, is clearly one under ‘claim’ of right, and not under ‘color’ of title, and, of course, will be effective where the original entry was under an oral contract of sale, or under a parol gift, or under any other parol agreement. But it will be observed that the efficacy of the acquired title does not depend on the fact that the entry was had under the oral gift or agreement, but, rather, that it was maintained under a claim of right. It would, in such case, have been just as effective even if its origin had been tortious.” 1 R. C. L. section 21, p. 708.

See, also, section 23, p. 711, Id.; 88 Am. St. Rep. 701, note; 15 L. R. A. (N. S.) 1215 note.

In this state this court has recognized parol color of title of a vendee as against his vendor and those claiming under him. In the case at bar the appellant does not claim under the vendor of the appellee, but is a stranger to the title claimed by appellee. We decline to apply the doctrine of parol color of title to any other parties, except the vendor and those claiming under him. When a vendor .puts his vendee in possession of land under a parol sale, he knows the limit and the claim of the vendee to this land. As to him it is unnecessary that there should be a visible, actual occupation of the entire tract, because of his actual knowledge of the claim of ownership. But to an entire stranger this reason does not apply. The stranger is bound by the actual adverse possession for the required number of years. This visible possession puts him upon inquiry as to its duration. If the vendee in possession has a deed to the land whether void or voidable, then this deed shows the limits of his claim, and a vendor would therefore be put on notice of that claim. However, where a vendee has no deed, if he be in possession of a small tract of land of only fifteen or twenty acres and could be allowed to say, “I am claiming one hundred and sixty or six hundred and forty acres because of a parol purchase from John Smith,” the door would be thrown wide open to fraudulent and false claim under alleged parol color of title. In the previous decisions of this court between ven-dee and vendor or those claiming under the vendor, the court has realized that this doctrine should be carefully limited, as is shown by the following quotation from Niles v. Davis, 60 Miss. 750:

“While there are many cases in which the doctrine that a parol sale or gift of lands is sufficient to give color of title to the vendee or donee, we have been unable to discover any case in which the question whether the parol sale or gift extends the boundaries of the tenant’s, possession to those of the whole tract, though only a part be actually occupied; hut we think that as against the parol vendor or doner, the law will impute possession in the vendee or donee to all the lands comprised in the verbal contract or gift. A mere trespasser in possession of land restricted to so much only as is actually occupied by him, because no one can tell what are the limits of his claim otherwise than by the evidence afforded by his occupancy, while one in possession, claiming under a written instrument, gives to the world notice of the extent of his claim. But one who claims under a parol sale, and to whom possession of the land has been yielded by the vendor, certainly as against the vendor gives notice by the mere occupancy of a part of the land purchased of his claim to the whole. Such occupancy is evidence of a claim under the contract, and the contract, .though void by the statute of frauds, embraces the whole body of land. The delivery of possession by the vendor is an admission by him that the vendee enters claiming as owner to the extent of the right which would have been conferred if the sale had been evidenced by a formal deed. It is not a question of the validity of the title, but of the character and extent of the possession, and of this the vendor has notice, not by the character of the occupancy, as being visible and notorious, but by the very contract to which he is a party. Possession, to give title under the statute «of limitations, is required to. be visible, notorious, hostile, and continued, to the end that all others having a claim to the property may have notice of the claim of the occupant and having notice they must contest his right within the time fixed by law, or the presumption will be conclusive that they have yielded to the title asserted by the occupant.’ ’

In referring to this case the same able jurist who wrote the opinion above quoted from says:

“In Niles v. Davis, 60 Miss. 750, it was held that a parol vendee entering under his purchase was, as against his vendor and those claiming under him, in possession of the whole land, though only a portion should be actually occupied. This rule, though announced in that case for the first time in this state, had been silently recognized in Davis v. Bowmar, 55 Miss. 671, and has been distinctly formulated and applied in other states.” Davis v. Davis, 68 Miss. 478, 10 So. 70.

In all of the cases in this state in which the doctrine of parol color of title has been upheld the suits were between the vendor or those claiming under him and the vendee. It is also worthy of remark that in those cases the vendor had a good title to the lands in controversy. In this case neither the vendor of appellee nor those under whom he claimed ever had any title to this land. So far as the lands in controversy are concerned, there was no actual possession attempted to be exercised over them by appellee. He had no color of title to them, and therefore has had no constructive possession of them. The lower court submitted the case on instructions to the jury. This was error. The peremptory instruction asked by the defendant should have been given.

Eeversed, and judgment here for appellant.

Reversed.