Dochterman v. Marshall

46 So. 542 | Miss. | 1908

Calhoon, J.,

delivered the opinion of the court.

Foster and Dochterman filed their bill against divers defendants, all of whom are éliminated except Martin, Bagnell, and Jacob Bernheimer. Foster and Dochterman aver that they are the owners of some two thousand eight hundred acres of land, and they deraign their title through a warranty deed from Jacob Bernheimer, one of the defendants, to them. They charge that they have not been put in possession of all the land in the calls of that deed to them, because, as to some of it, Bernheimer had no title, and because other parcels of it are held and claimed by defendants Martin and Bagnell, as to which they aver that the title and possession of the parcels of land claimed by Bagnell and Martin were, when the deed was executed, and now are, in the said Martin and Bagnell. This much, that the title and possession of these parcels were in Martin and Bagnell, is, of course, formally admitted by them. As to the defendant Martin the conclusion of the chancellor is too clearly right to admit of controversy.

1 As to Bagnell- it is contended in the brief that he must lose here because he did not expressly plead the' statute of limitations. But it appears from all the pleadings and all the proofs that Bagnell, and those under whom he claims, háve been in the adverse possession of that part of the land for fifty years. The whole case, as to Bagnell’s part of the land, was fought out on the idea that he claithed to own the property by adverse possession, and the evidence shows really that he and those under whom he claimed had been in the adverse occupancy for about fifty years. -The statute of limitations may be set up either by technical separate plea or in the answer, and Bagnell’s answer abundantly shows that he claims by adverse possession, and, as above appears, complainant’s bill charges his adverse possession of the part of the land claimed by him. Besides, the very facts set up in his answer show title by adverse possession. So we hold that the chancellor’s decree was right as to Bagnell.

As to Bernheimer it will be observed that the charge in the bill is that tbe complainants got less by land office numbers than they were entitled to by the description contained in the deed from Bernheimer to them. Bernheimer’s answer is made a cross-bill, which cross-bill prays for a reformation of his deed to conform to the intention of the parties to the sale and purchase. It is shown in the evidence that Bernheimer, when he made the deed, did not know the boundaries of the land, and he had no knowledge of the land numbers of it. The property had been known as the St. Albans property for a great number of years. Bernheimer had bought it as the St. Albans property, he intended to sell it as the St. Albans property, and he avers in his cross-bill that the vendees, Dochterman-and his brother-in-law, Eoster, knew the boundaries of the land, the real St. Al-bans property, and that they intended- to buy that. Dochterman had been the manager of the property for many years before Bernheimer bought it. Dochterman was familiar with the boundaries, and, manifestly, bought it knowing them, and, as we think, perfectly well knowing that Bernheimer designed to sell only the' St. Albans property. We think, without going into the detail's of it, that the evidence before the chancellor abundantly justified him in decreeing a reformation of the deed which Bernheimer made to conform to the real intention of the parties, and to convey only the St. Al-bans place by its actual boundaries. Bernheimer’s deed conveys “unto Charles W. Eoster and C. B. Dochterman the following described real estate, known as St. Albans, situate, lying, and being in the county of Claiborne, state of Mississippi, to-wit,” and then it proceeds to describe the property by land numbers. While there can be no controversy that a conveyance of land by general description, such as giving the name by which the estate is commonly known, is sufficient, still the general description will be controlled by the subsequent partieulár description. But in the particular case before us it seems plain that the intent of the vendor was to convey by the general description and that' the intent of the purchaser was to buy by the general description. Dochterman, one of Bernheimer’s vendees, had been for years the manager of the St. Albans property and was familiar with its boundaries. He was the manager of it at the date of the purchase, and we gather from the testimony in this whole record that the real contract was to buy the land known as the St. Albans land.

Affirmed.