Jenkins v. McQuaidJenkins v. McQuaid
It is true that in most, if not all, of the cases cited above, the record shows either a defective service of summons, or no service of summons for the defendant; but in view of our statute, which expressly authorizes any party to a suit to show that the officer‘s return on the summons, or other process, is untrue, the recital of aрpearance in a judgment based upon an officer‘s return of summons which is shown to be false should not be any more conclusive or import any greater verity than a similar recital in a judgment where the record shows that the summons had not been served. Since it has been shown and adjudged that the appellee was never served with summons, and in the absence of any plea in the record, we are of the opinion that the mere recital in the judgment that the defendant appeared and announced ready for trial is insufficient to sustain the judgment against the defendant who was not served with summons, the appellee herein.
The judgment of the court below will therefore be affirmed.
Affirmed.
Teat & Cox, for appellant.
ETHRIDGE, P. J. This is an appeal from a decree of the chancery court of Hinds county confirming Edward F. McQuaid‘s title to a strip of land fifteen feet wide lying immediately west of lot 4 of the McQuaid-Fitzgerald subdivision in the city of Jacksоn, Mississippi, sold to appellant, H. B. Jenkins, by the father of Edward F. McQuaid (E. A. McQuaid and Fitzgerald were joint owners of the said land). The sale to Jenkins was made in the year 1905, and the fifteen-foot alley, or strip of land here involved, was not embraced in the deed from McQuaid and Fitzgerald to Jenkins; but it is the contention of Jenkins that there was a map showing the strip of land to be an alley; that he bought with reference to the said plat; and that McQuaid in making the sale to him, represented to him that he (Jenkins) would have the use of said strip of land, or alley, аs a means of ingress and egress to the lot purchased by him (which lot he purchased for erecting a laundry thereon). Edward F. McQuaid, claimed by descent from E. A. McQuaid, his father, in a partition proceeding of the estate of E. A. McQuaid to his heirs, in 1909, and deraigned title from the gоvernment to himself through a series of named conveyances; setting up that he was the owner in fee of the fifteen-foot strip of land between certain lots owned by him and awarded to him in the partition
Jenkins answered the bill, setting up at length in his answer that when he bought the lot from McQuaid and Fitzgerald upon which his laundry is situated, the owners then and there represented to the defendant that the said alley was open to the use of the lot then and there purchased from them by Jenkins for the purpose of building a laundry thereon, and that it was convenient аnd necessary to use said alley for egress and ingress to the east end of said lot; that the consideration paid for the said land was likewise a consideration for the enjoyment and use of said alley in connection therewith, and that the value of same to the proper use and enjoyment of the said lot was taken into account and considered an inducement, and was the moving cause for the purchase of the said lot; that he had used, repaired, and maintained the said alley as a means of egress and ingrеss to his laundry continuously for a period of more than twenty years, and that the said grantors ratified his use of the said alley as a matter of right during the period of their natural lives, and that their successors in title had likewise at all times acquiesced, as a matter of right, in his use of said alley without objection, until the day and date of the filing of said bill of complaint; that his use of the alley for egress and ingress to his lot had been open, hostile, continuous, and notorious, and as a matter of right, during all of said period of time. The answer further alleges that McQuaid and his predecessors in title approved certain maps, plats, or drawings of the McQuaid-Fitzgerald subdivision to the city of Jackson, which showed said alley as an ingress and egress to the lot purchased by Jenkins, and that the said parties “ob-
The answer then denies the allegations of the bill with reference to the complainant‘s fee-simple title to the alley. in the following language:
“Defendant more specifically denies that complainant has a fee-simple title to said fifteen-foot alley and that he has acquired or owned or ever clothed himself with the muniments of title to said property, or has even been held out and recognized as thе owner of said alley; that the said alley is a valuable asset only as such to adjacent property of the said complainant. That this defendant now has. holds and claims an easement in and to, over and across said alley for ingress and egress to his property, and denies that the complainant or his predecessors in title have, at any time, prior to this suit asserted to him any right in and to the alley and denies that his use thereof casts any cloud upon the title of the said property of the complainant and denies thаt he is indebted in any sum to the complainant for the use of the said alley aforesaid.”
The plaintiff testified orally, without objection, that he owned the fifteen-foot alley, or strip of land, above mentioned, and that he had obtained it in a partition proceeding partiting the estate of his father among his heirs, but he did not introduce in evidence the decree in the said cause, or the record in the said partition proceeding
It appears that some part of this time Jenkins had rented, or paid rent on, one of the lots east of the alley, and used the buildings thereon for stables, but subsequently he began the use of automobiles in connection with his laundry, and, having no further need for the lot or the houses thereon, discontinued renting same; that demand for rent, however, was made upon Jenkins, by some real estate agents in Jackson, one of whom made a survey of the premises, and found that some of Jenkin‘s buildings encroached a few feet upon the alley.
The testimony of Jenkins that he constantly used this alley, and claimed the right so to do, is undisputed. It is true that the complainant was not in the city of Jackson, and may not have been actually cognizant of that fact.
The chancellor held that the use made by Jenkins of the alley “was not sufficient notice to complainant of the defendant‘s hostile claim, if any, to said land, and thаt said use has therefore continued as permissive and has not ripened title in this defendant.” A continuous easement is an interest in land, and a parol grant is insufficient to pass the title under the Statute of Frauds (
The judgment of the court below will be reversed and judgment rendered hеre establishing Jenkins’ right of user of the said alley as a passageway of ingress and egress to his property.
Reversed, and judgment here for appellant.
ON SUGGESTION OF ERROR.
ANDERSON, J. Appellant, in his bill, sought to have his title established and confirmed to lot 4 described in the bill, as well as to a fifteen-foot strip of land described in the bill and often referred to in the evidence as “an alley.” The chancellor granted the prayer of the bill, both as to the fifteen-foot alley and the lot. The appellant did not contest the appellee‘s claim of title to the lot. The fifteen-foot alley, alone, was the subject-matter of the litigation.
The appellee contended that he was the owner in fee of the alley, and the appellant had no rights whatsoever therein, while the appellant contended that he had an easement for ingress and egress in thе alley to and from his property, but did not contend that such easement was an exclusive one. He conceded that the appellee also had the free use of the alley as a passageway. The evidence showed that the appellаnt had put some obstructions in the alley, which were calculated to interfere with appellee‘s use of it as a passageway,
On a reconsideration of the cause, on a suggestion of error, we are of the opinion that the judgment heretofore entered reversing the decree of the chаncellor should be modified to the extent that such decree be affirmed as to lot 4, and that the judgment be further modified to the extent that the appellant is mandatorily enjoined to remove the structures in the alley within sixty days from the date final judgment is entered in the cause in this court. To that extent, the appellee‘s suggestion of error is sustained. In all other respects, it is overruled. Costs of appeal will go against appellee.
Sustained in part, and overruled in part.