79 So. 343 | Miss. | 1918
delivered the opinion of the court.
Appellants as plaintiffs in the court below instituted this action in ejectment against appellee, John C. Williams, to recover two small pieces of land, one tract
It “shall constitute all of the evidence, both for the plaintiffs and the defendant, and shall be taken as the true facts, and all of the facts with reference to the question at issue herein.”
The facts being agreed upon, this appeal presents purely law questions. Both parties claim, through Humphrey Starks as a common source of title. Appellants in the agreed statement concede that, as against
We do not regard either of the cases mentioned as decisive of the question now presented. These cases support the title of Humphrey Starks, but the latter ’s title is not questioned. On the contrary, both parties concede that Humphrey Starks acquired title by adverse possession and that his title so acquired descended to his heirs at law. The agreed statement settles expressly Starks’ ownership, and the pleadings and agreed statement show that both parties now claim through the heirs of Humphrey Starks. Appellants, as plaintiffs in the court below, have deeds to an undivided five-sevenths interest, and these deeds operated effectually to convey to appellants an undivided five-sevenths in
In Wells v. Ellabee, 93 Miss. 268, 46 So. 497, our court expressly ruled that a purchaser at commissioner’s sale “is a purchaser in invitum, and the doctrine of caveat emptor applies in its full force, ’ ’ and that a bill to reform a commissioner’s deed “cannot be entertained.” It is agreed that the bill for partition and sale of the Humphrey Starks land did not in terms describe or refer to the lands involved in this ejectment suit, and there is no allegation, agreement, or showing that appellee puchased at judicial sale the northeast quarter of the southeast quarter of section 5 under any representation or belief that the two small adjoining tracts of land in question were situated" in said forty or were a: part and parcel thereof. On the contrary, the pleadings, notice of sale, decree, and commissioner’s deed describe appellee’s land according to the government survey, and only the lands actually within the calls of the commissioner’s deed were conveyed to appellee., The agreed statement does reflect that appellee took possession according to the old occupation lines, and that the heirs of Humphrey Starks actually surrendered possession of. the land in controversy, and that appellee actually took possession thereof and has since occupied the same. It might 'be conceded for the purposes of this opinion that appellee in good faith believed that the two tracts sued for were within the calls of his commissioner’s deed. What appellee believed about the transaction is not controlling. The estate which he purchased at judicial sale must be determined by pleadings, decree, and commissioner’s deed. Appellee has only been in possession since January 1, 1913, and this suit was filed October 18, 1916. We are not here presented with the question whether a purchaser of land at judicial sale may tack
Under our statute and previous holdings of our court, possession for ten years in accordance with the demands of the statute confers such title upon the occupant as can be used defensively or as a, basis of a bill to confirm title. It is such title that will support ah action in court. This being so, we next approach a consideration of the question as to how a title once acquired by adverse possession may be divested, the particular inquiry being as to whether the title of the Humphrey Starks heirs was divested by a sale of Starks’ lands in the chancery court.
In School District No. 4 v. Benson, 31 Me. 381, 52 Am. Dec. 618, the court said:
“No doubt a disseisor may abandon the land, or surrender Ms possession by parol, to the disseisee, at any time before his disseisin has ripened into a title, and thus put an entire end to his claim. His declarations are admissible m evidence to show the character of his seisin, whether he holds adversely or in subordination to the legal title. But the title obtained by a disseisin so long continued as to take away the right of entry and bar an action for the land by limitation, cannot be conveyed by a parol abandonment or relinquishment; it must be transferred by deed. One having such title may go out of possession, declaring he abandons it to the former owner, and intending never again to make any claim to the land, and so may the person who holds an undisputed title by deed; but the law does not preclude them
In Parham v. Dedman, 66 Ark. 26, 48 S. W. 673, the court, by Hughes, J., observed:
“It is also contended that in 1893 Parham said to one of the appellees that since/ he had lost the suit with Marshal], if the appellees would let his tenant occupy the house till the end of the year, he would surrender possession of the house to them, and pay them rent for it; that he thereby acknowledged their right— attorned to them — and is estopped to dispute their title. But the title of Parham had then been completed 'by lapse of time, and adverse possession for several years more than seven, and his title was not devested by this agreement. There appears no consideration for it, and the title to land cannot be transferred in this way. There was no writing, and therefore the agreement, so far as the transfer of title is concerned, was within the statute of frauds.”
In Todd v. Kauffman, 19 D. C. 304, the supreme court of the district of Columbia, in discussing the propriety of a, certain instruction given in that case, said:
“The claim was that the fence having disappeared from the property it was abandoned, and that Kauffman also omitted it from his will, .although his heirs, I believe, that after his death claimed it, and. filed a bill for partition. It is admitted that he allowed it to be sold for taxes, but the answer to that on the part of the defense is that, if a title be once proved, there is no such thing as parting with the title to corporal property by abandoning it.”
In Frick v. Simon, 75 Cal. 337, 17 Pac. 439, 7 Am. St. Rep. 177, the California court on a similar question said:
“An offer to buy out a hostile claim in 1876 or 1883 could not invalidate the title of plaintiff or her pred
In Campbell et al v. Bates, 143 Ala. 338, 39 So. 144, paragraph 7 of the headnotes reflects the holding of the Alabama court as follows:
“7. Same— Acquisition of Title — Divestment.— Where the possession of plaintiff’s grantor and the succeeding possession of plaintiff under the deed from his grantor amount together to ten years, no subsequent adverse possession under color of title for a less peiiod than ten years will divest plaintiff’s title.”
The authorities are agreed that any inquiry as to the continuity of possession claimed to be adverse is pertinent only in event the adverse possession has not been continuous for the required number of years, nécessary to confer title. Our court dealt with this question in Geohegan v. Marshall, 66 Miss. 676, 6 So. 502, an ejectment suit in which the court condemned certain instructions given for the plaintiff. The defendant there relied upon title by adverse possession, but the plaintiff’s instructions told the jury that they must believe the defendant had been in the actual adverse possession of this land for “ten years next before the commencement of this suit.” Our court by Cooler, J., observed:
“If the defendant was in adverse possession of the lands in controversy .for the period of time necessary to create title, it is immaterial .whether that possession immediately preceded the institution of plaintiff’s action. It is sufficient if at any time there was such possession under a parol gift, for its effect would be to transfer the title of the donor to the possessor, who would thus become owner, and a vacancy in the possession thereafter intervening would not affect the
See, also, on this point, Off v. Heinrichs, 124 Wis. 440, 102 N. W. 904.
We find therefore that the authorities are in accord that land acquired by adverse possession cannot be lost by mere abandonment. In addition to the authorities quoted from, we refer to the well-considered case of Tarver v. Deppen, 132, Ga. 798, 65 S. E. 177, 24 L. R. A. (N. S.) 1161, as also the case note on the “effect of abandonment on title to real property acquired by adverse possession,” and 2 C. J., pp. 256 and 257. There is no question of estoppel presented in the present suit. A case might be presented where the owner of a title acquired by adverse possession would be estopped to claim or rely upon the same. But the necessary elements of estoppel would have to exist. As stated by the supreme court of Pennsylvania in Byers v. Sheplar (Pa.), 7 Atl. 182, the owner of such title “could not, by a loose conversation, talk away his right; for it would fall within the statute of frauds and prejuries, so that even his definite parol agreement would not affect a divestiture of that title.” So in the present case we are impressed with the view that the good title of Humphrey Starks could not be divested except by deed-in accordance with' the statute or by such a state of facts as would constitute an estoppel. The views we entertain lead necessarily to the conclusion that the learned circuit court erred-in rendering a judgment in favor of appellee, and this judgment will be reversed, and judgment entered here in favor of appellants.
Reversed and Judgment here.