59 Miss. 585 | Miss. | 1882
delivered the opinion of the court.
Can a plaintiff in ejectment recover upon the bare fact of a former open, continuous, unbroken adverse possession by himself and his grantors for such length of time (ten years) as would, if he were a defendant, bar all right of action against him? This is the principal question presented by this record. That a plaintiff in ejectment can recover against a mere naked intruder upon the strength of his former possession, without regard to the length of it, is well settled both here and elsewhere ; but whether he can recover against one claiming or actually holding the true title, simply by showing a former possession in himself and those through whom he claims, sufficiently prolonged to bar all action against him if he were in possession and were himself a defendant, has not been adjudged in this State, except under the statute of 1844 (Hutch. Code, p. 829), which, like our present law (Code of 1880, § 2668), expressly declared that such possession should confer title.
In the absence of such a provision do the ordinary statutes of limitation operate to give title ? The authorities elsewhere, with an approach to unanimity, answer this question in the affirmative, and the general voice is that even against the true owner, who is in possession of his own, a plaintiff may recover by showing that at a time when those having the right of entry were resting under .no disability, he and those under whom he claims, held, for the period prescribed by the statute, open, notorious, exclusive and unbroken adverse possession of the land in controversy, that such possession was not voluntarily abandoned, and that his dispossession has not been sufficiently long to vest the new possessor with a new title. The cases where a former possessor under these circumstances has recovered from the true owner are numerous and date
The evidence as to the adverse possession was conflicting, and we are not disposed to interfere with the verdict. Neither party introduced .at the trial a deed to the locus in quo, but on the motion for new trial, one was exhibited by the defendant. Apart from the question of negligence in failing to produce it before judgment, it would not have, availed him under the principles here laid down, accepting, as we do, the verdict as settling the facts against him. Judgment affirmed.