16 Adv. S. 25 | Miss. | 1953
The complainant, Emma Henry, filed a bill of complaint in the chancery court of Chickasaw County against Rogers D. Henderson and his wife, and James A. Pick-ens, asking for the cancellation of clouds upon her title to a 30-acre tract of land, which she alleged had been conveyed to her by Nathaniel Miller on February 21, 1950.
The defendants in their answer denied that the complainant was the owner of the 30-acre tract of land, and averred that Rogers D. Henderson and his wife were the owners of the land under and by virtue of a deed of
The case was tried before the chancellor upon the pleadings and proof, and the chancellor entered a decree dismissing the complainant’s bill and confirming the title of the defendants.
The record shows that title to the 30-acre tract of land was acquired by Douglas Miller on February 12, 1914, by a deed of conveyance from C. M. Savage, who was the owner of the land at that time. Douglas Miller died in November, 1932, leaving as his only heir-at-law one child, Nathaniel Miller, who resided in the State of Nebraska. Douglas Miller, who was living in Nebraska at that time with his son, failed to pay the state and county taxes on the land for the year 1931, and the sheriff and tax collector advertised and sold the land for delinquent taxes on May 2, 1932, and the land was struck off to the State. On April 29, 1939, Ara Miller Nichols obtained a forfeited tax land patent to the land from the State. Ara Miller Nichols went into possession of the land im
Upon the hearing before the chancellor it was conceded that the tax sale made on May 2, 1932, was void; and it was expressly stipulated that the only issue to be determined in the suit was the question whether title to the land had been vested in the defendants, Rogers D. Hendérson and his wife, by adverse possession. The defendants claimed that Ara Miller Nichols and her children had acquired title to the land by adverse possession under the ten-year statute of limitations, Section 711, Code of 1942, and by actual occupation under the three-year statute of limitations, Section 716, Code of 1942, and by virtue of the two-year statute of limitations, Section 717, Code of 1942. The complainant contended that Ara Miller Nichols at the time that she obtained the forfeited tax land patent, and thereafter, occupied the land only
The testimony offered by the appellees to establish their claim of title by adverse possession was as follows: Lee Ford testified that he lived about one-half mile from the 30-acre tract; that Ara Miller Nichols bought the land from the State, and lived on the land until her death; that she and her children cultivated the land; and that no one else occupied the land during that time; that Nathaniel Miller never lived on the land, after Ara purchased the land from the State. -Tom Pickens testified that he lived about a half mile from the 30-acre tract; that Ara Miller Nichols lived on the land when he moved up there, and that she continued to live on the land until her death; that she and her children farmed the land; and that no one else occupied the land during that time. Tom Woods testified that he lived in the same neighborhood, and was living there when Ara purchased the land in 1939 and moved on the land; that Ara continued to live on the land with her family until her death; and that Ambrose Nichols had been in control of the land since her death. Tom Woods stated that he had loaned money to Ara Miller Nichols “to redeem the place.”
Oscar Davenport testified that Douglas Miller went to Nebraska before his death to live with his son, Nathaniel; that Ara Miller Nichols 'moved on the land sometime thereafter and continued to live on the land until her death, and that she and her family worked the land, and that no one else worked the land. Andrew Jones testified that Ara Miller Nichols lived on the land five, six or seven years; that he did not know where she got it from, but that she never left until her death; that Douglas Miller left Mississippi and went to Nebraska long before Ara Miller Nichols moved on the land; that after Douglas Miller left Green Miller had charge of the place
It was admitted by the parties that the land in controversy was assessed to Ara Miller Nichols for the years 1941 through 1945 both inclusive, and that Ara had been granted a homestead exemption for tax purposes for each of those years. •
The complainant offered four witnesses to prove her contention that at the time she obtained the forfeited tax land patent Ara Miller Nichols was occupying the land by sufferance of Douglas Miller.
Clyde Miller testified that he was a brother of Ara Miller Nichols, and that the understanding between Ara and her father at the time Ara moved on the land, was that if Douglas Miller called for the place, Ara would have to move. Clyde Miller' stated that Mr. Seymour Jones helped Ara obtain the tax patent to the land, and that Jones stated to her that if any of Douglas Miller’s heirs called for the place, that she would have to move, and that Ara said ‘ ‘ all right. ’ ’ Clyde Miller stated that Douglas Miller had been gone a long time when Ara moved on the land. On cross-examination, Clyde admitted that Ara lived on the land six or seven years, and that no one lived on the land during that time except Ara and her children; and that Nathaniel Miller did not come to Mississippi or try to get the land.
The chancellor held that the contention of the complainant that the defendants and Ara Miller Nichols and her children held the land by sufferance of the former owner, Nathaniel Miller, was not well taken and was not sustained by the proof; and the chancellor found that the defendants and their predecessors in title had been in actual, peaceable, adverse, open, notorious, hostile, continuous and exclusive possession of the land for more than ten years, and that they had acquired title to the
The appellants’ attorney argues on this appeal that the court erred in holding that the proof was insufficient to show that Ara Miller Nichols and her children occupied the land only as tenants by sufferance of Nathaniel Miller, the true owner; and that the court erred in holding that the defendants had acquired title to the land by adverse possession. The appellants’ attorney in his brief says “That the uncontradicted proof in this case is that Ara Miller Nichols repeatedly said that she did not claim title to the land.” This contention is based upon the testimony of the four witnesses, Clyde Miller, Richard Henry, James Burdin e and Johnnie Roberts, all of whom undertook to repeat conversations which had occurred between Ara and her father, and between Ara and Mr. Seymour Jones twelve years or more before the date of the trial, in which it was made to appear that Ara acknowledged the ownership of the property by the heirs of Douglas Miller, deceased.
But we think that the chancellor was amply justified in holding that the complainant had failed to establish by a preponderance of the evidence her claim that Ara Miller Nichols was a tenant by sufferance of Nathaniel Miller in 1939 when she purchased the land from the State; and we think that the evidence was sufficient to establish the defendants’ title by adverse possession under the ten-year statute of limitations, Section 711, Code of 1942.
The testimony of the above named witnesses who testified for the complainant had to be weighed by the chancellor along‘with the other testimony in the record. The only persons who might have contradicted that testimony directly were dead. The witnesses who undertook to repeat the alleged conversations which had taken place between Ara and her father, and between Ara and Mr. Seymour Jones, many years before the date of the
The implications to be drawn from the testimony of the above mentioned witnesses to the effect that Ara admitted that she held possession only by sufferance of Nathaniel Miller are contradicted by other testimony in the record-and by facts which are undisputed. It is admitted that Ara applied for and obtained from the State Land Commissioner on April 29, 1939, a forfeited tax land patent purporting to convey to her title to the land, and the record shows that she had the same duly recorded on the public land records of the county on August 2, 1939. The record shows throughout that she was in possession of the land and occupied the same during the remaining years of her life, and that she and her family cultivated the tillable portions of the land; that she added an additional room to the dwelling house; and that she filed a sworn application each year for homestead tax exemption, alleging that she was the owner of the land, and obtained a homestead tax exemption on the land. These were all acts evidencing a claim of ownership which was inconsistent with a recognition of title in the heirs of Douglas Miller, deceased.
“One in possession under a deed presumptively enters in his own right and claims the land to the limits of his deed.” 2 C. J. S., p. 825, Adverse Possession, par. 217. It is unnecessary to prove by evidence other than the deed that the claim of one holding a deed to the land is adverse. Hassam v. J. E. Safford Lumber Co., 82 Vt. 444, 74 A. 197.
Ara’s filing of an application each year for homestead tax exemption constituted a continuous assertion of her ownership of the land.
For the reasons stated above the decree of the lower court is affirmed.
Affirmed.