Goff v. Avent, 122 Miss. 86

Goff v. Avent

122 Miss. 86 | Miss. | 1920

Smith, C. J.,

delivered the opinion of the court.

This is an appeal to settle the principles of the case from a decree overruling demurrer to a bill of complaint. The suit was instituted under section '550. Code of 1906 (section 307. Hemingway’s Code!, bv the apio'ellant, who will hereinafter be designated as the complainant, against the appellee, who will hereinafter be designated' as the defendant, to cancel the claim of the defendant to certain land in section 42, townslnhr 1 south, range 8 west, as a cloud on complainant’s title thereto.

It appears from the bill of complaint that when the territory now composing the county of George was1 acquired by the United States government a number of persons occupied various tracts of land therein, claiming ownership thereto, which claims were confirmed by the government. When the territory was surveyed and platted by the gov-*96eminent, these tracts were set apart to the claimants, and each was designated on the township plats by a sectional number. Among such tracts of land was one situated in what is now George county, embracing the land now in controversy, and claimed by Daniel Green. The township in which this land is situated contained a number of such tracts, each of which is shown on the township1 plat as a separate section, resulting in the township being divided into 47 instead of 36 sections, the one set apart to Daniel Green being No. 42. It appears from the township plat, filed as an exhibit to the bill, that section 42 would have embraced and coincided with the Northwest quarter of section 27, the South half of section 22, and the Southwest quarter of section 23 if the township had been divided by the government surveyors into 36' regular sections. Sections 22, 23,- and 27 were surveyed and designated on the government plat, but are only a fractional part of what they would have been had the township' been divided into 36 regular sections.

Complainant deraigns his title through the following deeds: Daniel Green to Daniel Mclnnis'; Daniel Mclnnis to John FT. Sbe/nuard: John FT. Sheppard to H. C. Cochran and W. FT. Goff; H. C. Cochran to W. H. Goff. The deed from Mclnnis to Sheppard, instead of describing the land as section 42, township 1, range 8 west, as it should have done, described it as:

“The northwest quarter of section twenty-seven (27), and the south half of section twenty-two (22) and the southwest quarter of section twenty-three (23) it being in township No. one (1) south and range No. eight (8) west, containing 'by estimate six hundred and forty (640) acres more or less. ’ ’

The description in the deed from Sheppard to Cochran and Goff is:

“Northwest quarter1 section twenty-seven (27), the southwest quarter of southwest quarter alxd east half of west half of southwest quarter of section twenty-two, *97township one south, range eight west, containing five hundred and ninety acres. ’ ’

The description in the deed from Cochran to Goff is as follows:

“Commencing at the one-half mile (post between sections 22 and 21; thence run east 10 chains to place of be ginning; thence continue due east along east and west center line 110.00 chains; thence south 26.66 chains; thence west 110.00 chains; thence north 26.66 chains to place of beginning containing 293%. acres more or less, land being and lying in section 22 and 23 T. 1 S., R. 8 W.”

The bill alleges that it was the custom of the land owners in that vicinity to describe the land situated in the irregular sections set apart by the government to the original claimants as hereinbefore set forth by what would have been the proper description thereof according to the government survey had the townships been divided into 36 regular sections, and that that was the plan adopted by the parties to these deeds, the grantors intending thereby to convey the land that would have been thereby described had the township been divided in 36 regular sections.

The bill further alleges that Mclnnis and Sheppard went into possession of the land in controversy under the deeds to them and continued to hold it, claiming it as their own, until conveyed by them, and that Cochran and Goff, upon the execution of the deed to them by Sheppard “entered into the actual, open, exclusive, notorious, continuous, and undisputed possession of said land, claiming: it against all the world, exercising every class and kind of ownership, use, and occupancy of which the same was acceptable, and personallv so1 remained in possession for a lone’ number of years.”

The bill also set forth the instruments under which the complainant understands that the defendant claims title to the land and pointed out the alleged defects therein.

*98We are not now called on to determine the validity of the defendant’s claim of title; for, as will hereinafter ap^pear, the complainant has failed to show any title in himself, and this! he must do before he can question the title of the defendant.

The land in controversy is not embraced in the description of the land conveyed in the deeds through which the complainant claims; for, where land is described in a conveyance by sectional numbers according to the government’s survey thereof, the land thereby conveyed is that only which is situated within the designated sections as surveyed and platted by the government; the original corners and lines thereof established by the government being their true and only boundaries. That the parties to these deeds may have intended thereby to convey land that would) have been included in the designated sections bad they been of the regulation size can avail the complainant nothing; for when the meaning of languiage is to be determined by the court the intent of the parties, expressed in the word's they have used, must govern.

The plaintiff’s claim of title by adverse possession is not sustained1 by the allegation of his bill, for it does not appear therefrom that he remained in possession of the land for the required length of time, the allegation being simply that he “remained in possession for a long number of years. ’ ’ According to the allegation of the bill the title to the land was acquired by John II. Sheppard by adverse possession, and has. not been divested out of him.

Affirmed and remanded