Bynum v. Stinson

81 Miss. 25 | Miss. | 1902

Galhoon, J.,

delivered the opinion of the court.

The description of the premises set out in the bill is good enough. True, it begins “About two and one-half acres lying,” etc., but this general language can be made certain by resort to the boundaries. The bill states them. It refers to the land as lying in the southwest one-quarter of a specified quarter section, and bounds it by W. H. Stinson’s line on the south, the Mer ridian and Enterprise public road on the east, complainant’s land on the west, and by defendant’s fence on the north. Because the bill elsewhere, in setting forth defendant’s motives, states that the “stock law,-or no-fence law,” was in Operation in the community, it does not follow that there was not fences there. No doubt there are fences in every stock law district. Such laws’have never yet prohibited fences.

• Where a pleading predicates right of prescription by adverse possession pursuant to an exchange of parcels of land by parol, neither record, title, nor written agreement of exchange need be shown. It is only necessary to aver the exchange and subsequent adverse possession for the ten years’ period of limitation.

Adverse possession is sufficiently averred in this bill. It is true it says, in one place that the complainant’s adverse holding has been for “about fifteen years,” but, if this were insufficient, still, in another place, it is distinctly averred that the land exchanged was “received from defendant fifteen years ago.” This means more than ten years, and we cannot hold, according to obsolete léarning, that the pleader must actually say ten years, on the idea that, while to say fifteen years is an infallible argument, that it is more than ten years, nevertheless it is not» a sufficient averment that it was more than ten years.

The. other averments as to adverse possession are these: “Complainant has been in actual uninterrupted adverse possession of said parcel of land received from defendant for about fifteen years, and-has openly and notoriously exercised the control of an owner of it from the date of exchange until now, using it in the same manner that he would have used it'had same passed to him by deed. He has cut firewood from it, raked •and hauled straw and leaves from it, split rails upon it, sold the saw timber from it, and cultivated a small part of it. And all this the defendant well Imew, Jsnowing full well, too, that your complainant was doing so as owner of said land.”

As between parties to an exchange, this is abundant, and the parts italicized by the writer of this opinion completely refutes the technical objection of the demurrer that the exact words of statute, “claiming to be the owner,” are not used. They also emasculate the objection that, no paper title being shown, the land should be averred to have been enclosed.

The objection that the bill is not sworn to is without any merit, as we think, and the same is true of other objection not mentioned in this opinion.

Affirmed.