115 So. 780 | Miss. | 1928
"On the 23d day of March, A.D. 1911, John Calvert and Cassie Calvert executed a deed conveying to Mrs. W.L. Weems, who is the same person as the Mrs. S.F. Weems hereinafter referred to, the land described as commencing at the northeast corner of section 3, township 10, range 6 west, run fifty-four and one-fourth chains to place of beginning; then south ten chains, west twenty chains, north ten chains to base line; thence east on base line to beginning, containing twenty acres, more or less, in Clarke county, Miss., which deed is recorded on page 286 of Deed Book E-1 on file in the office of the chancery clerk of Clarke county, Miss."
The defendants each denied that the complainant is the owner by fee-simple title to the land described in the bill. The defendant Lang set up that he is the owner in fee-simple title to twenty acres of land embraced in the suit (describing same), and that the said twenty-acres were duly assessed for taxes for the years 1917, 1918, 1919, 1920, and 1921; that on the 7th day of August, 1922, said land was sold to the state of Mississippi for taxes unpaid thereon for the year 1921, as appears from the tax sale record of Clarke county, Miss., at page 143; that since the issuance of his patent on the 3d day of March, 1926, he has been, and is now, in the exclusive possession of said land by himself and tenants; and that he claims the exclusive fee-simple title to the said land.
The defendants Mary and William Talbert denied, in their answer, that the complainant is the owner by fee-simple *675 title to the land described in his bill. They averred that John and Cassie Calvert had the actual, open, notorious, exclusive, and adverse possession of the land described for a long number of years, and until the death of John Calvert, in March, 1916; that after the death of Cassie and John Calvert, who claimed title to and occupied the land described as their own, the heirs of John and Cassie Calvert continued to occupy and claim title to the said land, to the exclusion of all other persons, until said land was sold to the state for taxes.
During the trial of the case, the following agreement was made:
"It is agreed that the reference made in the bill in this case to the divers deeds and records and the pages where recorded are correct and the deeds so referred to are correct except the deed denied in the answer of the defendants, the execution of which is denied in the answer of the defendants."
There was a dispute as to the possession of the land, at least as to the character of its possession; the proof for the complainant tending to show that the defendants were in permissive possession, and the proof for the defendants tending to show that they were in possession of the land in their own right. There was a decree for the complainant, from which this cause is appealed by the defendants.
It will be noted that, in the deraignment of title, the description set forth, "commencing at the northeast corner of section 3, township 10, range 6 west, run fifty-four and one-fourth chains to place of beginning; thence south ten chains, west twenty chains, north ten chains to base line; thence east on base line to beginning, containing twenty acres, more or less," etc., does not state a starting point, and is in fact a void description.
The agreement above quoted, made during the trial, is that the description contained in the deraignment is correct, as would be shown by the deeds, and we think *676 the effect of this agreement is to bind both parties to the description shown in the deraignment of title. In other words, it was agreed that the deeds conform to the description contained in the deraignment of title.
After this case was appealed and the sufficiency of this description challenged, a purported copy of the deed was sent up and pasted to the record, but there is no agreement that this deed is to become a part of the record, or that it is in fact a correct description of the land involved. From the agreement in the record, this deed does not become a part of the record, and cannot be treated as such in the absence of an agreement to that effect, or of a showing that it was introduced in the court below. It appears that the agreement was for the purpose of dispensing with the production of the deeds mentioned in the deraignment of title, and the case proceeded upon that theory in the court below.
It is a familiar principle, in cases of this kind, that a complainant must prevail upon his own title, and not upon the weakness of the title of his adversary.
There was a failure on the part of the complainant to make out his case according to this rule, and it was error for the court below to decree for the complainant. The judgment will therefore be reversed, and the cause remanded.
Reversed and remanded.
