Davis v. Davis
68 Miss. 478
Miss.
1891
Check Treatment
CooPERj J.,

delivered the opinion of the court.

It is too well settled by decisions of this court, and by innumerable authorities in other states, that a claim of title under a parol gift or purchase, accompanied by entry and adverse holding, may ripen into an indefeasible title by the lapse of statutory period of limitation, to admit of present argument or contention.

Magee v. Magee, 37 Miss. 138; Davis v. Bowmar, 55 Ib. 671; Niles v. Davis, 60 Ib. 750; Geohegan v. Marshall, 66 Ib. 676; Campbell v. Braden, 96 Penn. St. 388; Clark v. Gilbert, 39 Conn. 94; Steel v. Johnson, 4 Allen, 425; Outcalt v. Luiton, 32 N. J. 239 ; Bartlett v. Secot, 56 Wis. 520; Potts v. Coleman, 67 Ala. 222; Colins v. Johnson, 57 Ib. 304.

*481Tbe suggestion of counsel that § 1188, code 1880, which declares that “ no estate of inheritance or freehold, or for a term of more than one year, in lands or tenements shall be conveyed from one to another, unless the conveyance be declared by writing, signed and delivered,” prevents the title from vesting in the occupant under such circumstances, is met by the reply that title does not pass by the parol gift or sale, but by the lapse of time operating under the law upon the adverse possession.

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., and has been distinctly formulated and applied in other states.

In Bell v. Longnorth, 6 Ind. 273, the court said: “When a party is in possession of land, claiming an adverse title, the question must always arise to what extent does his claim reach. What land does his claim of title cover? And when there is nothing but naked possession to evidence it, his title must, from necessity, be limited to the lands over which he has exercised a visible authority, known to others as owner; to those in short, from which he has excluded the former owner and others. A man cannot go, solitary and alone, to the prairies or forests of the West, set himself down in the middle thereof, and claim that he possesses all, to an undefined extent, not then actually possessed by some one else. He must be limited to that portion over which he exercises palpable and continuous acts of ownership, as being the quantity which he claims as his own, there being no other evidence in such case to enable us to determine the quantity. But where a party is in possession under and pursuant to a state of facts which, of themselves, show the character and extent of his entry and claim, the case is entirely different, and such facts, whatever they may be in a given case, perform sufficiently the office of color of title. They evidence the character of the entry and extent of the claim, and no colorable title does more, for such, colorable title alone does not give right.”

*482In Rannels v. Rannels, 52 Mo. 112, a parol gift of the land had been made, the donee entered thereunder and remained in possession for the statutory period. It was held that her possession was of the whole tract, though only a part was actually occupied. I

In Hughes v. Israel, 73 Mo. 538, the parties to a deed undertook by verbal contract to rescind the deed, and the grantor thereafter remained in the actual possession of a part of the land, claiming title under the oral rescission: it was held that his possession extended to the whole tract described in-the deed.

We find nothing in the facts of this case as developed on behalf of the defendant withdrawing it from the operation of the principle of the decision in Niles v. Davis. That these facts are controverted by the plaintiff is immaterial, since the jury must determine by its verdict what the truth is, and, this being done, all opposing evidence is unavailing.

But the court below erred in refusing the 10th instruction asked by the plaintiff and in giving the 5th instruction -for the defendant. It is true' the burdeu of proof on the whole case was upon the plaintiff, but the defendant by his evidence and by his whole defense recognized the title to have been originally in the plaintiff, and claimed the land only by virtue of the parol gift or sale, followed by his adverse occupancy for the period of limitation. The real question was whether by reason of this affirmative defense the right of the defendant had become perfect against the otherwise confessed legal title of the plaintiff. • On this, the only issue, the burden was upon the defendant and not upon the plaintiff, and the court should so have instructed. Geohegan v. Marshall, MS. Op., Book “ M,” p. 410. 1 Am. & Eng. Ency. of Law, 303.

The judgment is reversed.