Mitchell v. Bond

84 Miss. 72 | Miss. | 1904

Whitfield, O. J.,

delivered tbe o ion of tbe court.

The paper title of appellee, as defi, ,ned in the bill, is perfect from the government down to thej .ppellee. The only paper title set up by the appellant is a deed made on October 14, 1880, by Gwin and Hemmingway, liquidating levee commissioners, and commissioners of the chancery court of Hinds county, in the case of Green against Gibbs, et al. The land was sold on May 12, 1869, by the sheriff of Tunica county, to the liquidating levee board for delinquent taxes. On October 22, 1873, appellee redeemed the land from H. W. Warren, levee commissioner. On June 4, 1873, appellee redeemed the land from the forfeitures for state and county taxes from the circuit clerk of Tunica county by redemption certificate, as provided by law at that time. There is some verbal criticism of the redemption deed from Warren, leevee commissioner, but, as we think, it is without merit. These redemptions completely reinvested appellee with the paper title to the land. The land was not sold in 1873 to the liquidating levee board because it was not delinquent for that year, nor subject to such sale. The pretended sale in. January, 1873, of this land to Levee Board No. 1 was void, because at that time the land was the property of the liquidating board under the sale of 1869, and it was therefore not subject to sale for No. 1 levee taxes. Mayer v. Peebles, 58 Miss., 628. From the time of such redemption in 1873 down to the present time the appellee has paid promptly all the taxes due on said land. It is perfectly clear, therefore, that this land, thus redeemed, was not the property of the liquidating levee board, and was improperly listed amongst lands subject to sale under the Gibbs-Green decree. Gibbs v. Green, 54 Miss., 610. It was settled in the case of Hoskins v. I. C. R. R. Co., 78 Miss., 768 (29. So. Rep., 518; 84 Am. St. Rep., 644), that the three-years’ statute of limitations (Ann. Code 1892, § 2735) applies only to lands that were taxable, and therefore subject to sale when the sale occurred. The land here was not subject to sale under the Gibbs-Green decree, because it was not of the class which could legally be sold under that decree; that is to say, not the property of the liquidating levee board. The deed, consequently, of October 14, 1880, under which appellant claims paper title, is void. From these considerations it is plain that appellant has no paper title, and, furthermore, that the said three-years’ statute of limitations has no application. The only defense which appellant can invoke with any show of reason— and that is the defense which is almost exclusively insisted on here — is that he has acquired title by ten years’ adverse possession. What are the facts with respect to this possession? We will briefly recount the main facts bearing on this defense. The appellee has paid all the taxes from 1873 to this time, and the land has always been assessed in her name. Appellant has never paid any taxes; nor did he ever make any attempt to have the land assessed to himself until the year 1900. ITe never offered to pay any taxes until about 1897, when he found they had been paid by appellee. The land is wild land, chiefly valuable for its timber. Appellee sold timber to several parties who went upon the land and cut timber therefrom, notably to Ingram Stave Company, on November 15, 1895. This company was on this land between one and two years, with the full knowledge and acquiescence of the appellant, who was living within less than one mile of this land, on an adjoining section, and was frequently at the camp and mill of the said company. At this very time appellant had a pasture for hogs which extended from his own land partly over the land in controversy, embracing some timber suitable for staves; and appellant told the agent of the stave company, J. T. Norment, when he wanted those trees, to tear dowm his fence and go in there and get them. Appellee, who lived in St. Louis, Mo., never heard of any claim to this land set up by appellant until 1900, when appellant served notice on Muskelly forbidding him to cut staves under a deed made by appellee to Muskelly October 9, 1900. Appellee made three sales of timber — one to A. B. Nelson & Co., February 29, 1884; one above mentioned to the Ingram Stave Company in 1895; and the one just above mentioned to J. W. Muskelly, October 9, 1900. It appears that Nelson & Co. cut some oak timber on the land in 1886. In 1881 or 1882 appellant had a survey made of some land cornering with the land in controversy by a surveyor, George W. Owens, who says the appellant told him he expected to buy some of it from the state. At that time the surveyor did not survey section 4. That in 1896 he ran the survey line of the land in controversy for appellee’s brother, C. H. Miller. That it was other land, and not this land in controversy, that he surveyed for appellant;, and that throughout all these dealings he never heard appellant claim to own this land. In addition to this, appellee showed by her proof that when W. M. Pratt, desiring, in 1889, to buy forty acres of this land, -inquired of the appellant, Mitchell, who owned the land, he was informed by Mitchell that it belonged to the Miller heirs, and at Pratt’s request Mitchell wrote a letter for Pratt, which is as follows:

“Senatobia, Miss., December 16, 1889.

“Austin Miller, Agent for Mary D. Miller, or Bond: — You own section 4, township 6, range 10, in Tunica county. I want to buy forty acres of the southwest corner. There is no salable-timber on this forty. The timber was cut off by Louis Nelson-in 1883. I am a poor man and not able to buy more than forty acres of land in the woods.

“If you will sell, let me know by return mail, and your lowest prices and best terms on one, two and three payments. You will please write to me soon and give me an answer, for if I buy, I want to build this winter and clear up ten acres the coming year.

“Direct your letter to W. M. Pratt, in care of O. W. Mitchell, at Senatobia, Miss. Yours truly, [Signed] W. M. Pratt.”'

To which he received the following reply:

“Bolivar, Tenn., February 6, 1890.

“To W. M. Pratt, Esq., Senatobia, Miss. — Dear Sir: The land that you speak of belongs to my sister, Mary D. Miller, now Mrs. Mary D. Bond. She lives in' St. Louis, Mo., and would not care to sell so small a piece of land unless she got a price sufficient to make her break section lines.

“Please write me what you are willing to give for the forty acres that you want and how much cash you wish to pay on the same. We want to sell the same if the price justifies.

Tours truly, [Signed] Austin Miller/'’

It will be specially noted with reference to this letter and the answer that it was dated in December, 1889, the answer February 6, 1890, and that the letter was addressed to Austin Miller, agent for Mary D. Miller, or Bond. Appellant attempts to explain this letter in a way not necessary to set out, but not, we think, satisfactorily. Finally, it appears from the cross-examination of appellant that he had examined the records to see if the sales under which he had bought had been redeemed from, and that he had seen and read the redemption deed from H. W, Warren, liquidating levee commissioner, to appellee and her two brothers, to this land, and he never afterwards really claimed under his paper title. This is a very important piece of testimony as bearing upon the good faith of appellant’s claim to the land. In vol. 1, Am. & Eng. Ency. Law (2d ed.), p. 861, par. 4, it is said: .“While a person who accepts a defective title to land and goes into possession under it knowing the defect may, nevertheless, by virtue of his adverse possession under claim of title alone, plead the statute of limitations in bar against any action brought for the recovery of the land, yet the general rule is that possession under a defective title by a grantee who knows the , defect must be limited to his actual occupancy. In other words, to entitle a claimant under color of title to the benefit of the doctrine of constructive possession, there must be a bona fide reliance upon the merely apparent title as being g'ood and valid. Therefore, if the instrument constituting color of title was obtained by fraud on the part of the grantee, or with a knowledge by him that it conveys no title, he cannot have the advantage of an entry under color of title.” Under the testimony just mentioned it might well be held that complainant knew that his title under the deed of October 14, 1880, was void. It is true that a void deed affords color of title, and that the general rule is that one claiming title by adverse possession under a deed affording color of title has the right to have his possession treated as coextensive with the calls of his deed; but there is a well-settled exception to the general rule, which is stated as follows by this court in Jones v. Gaddis, 67 Miss., 769 (7 So. Rep., 491): “The rule is correct, but this limitation upon the rule must not be overlooked, viz.: If the title was void as to part of the land conveyed, the occupation of that part to which the grantee had title will not give the grantee constructive possession of the other part to which he had no title, so as to disseize the real owner. To divest the rightful owner of the whole tract described in the deed, the partial occupation must be of such a character as to give rise to a reasonable presumption that the rightful owner knows that the entry was made under color of title; and, if this presumpton be not reasonable, under the circumstances of the case, the disseizin will not extend beyond the actual occupation.” Citing Tiedman on Real Property, par. 696; Bailey v. Carleton 12 N. H., 9 (37 Am. Dec., 190); Jackson v. Woodruff, 1 Cow., 286 (13 Am. Dec., 525); Osborne v. Ballew, 34 N. C., 377; Seigle v. Louderbaugh, 5 Pa., 490. See, also, 1 Am. & Eng. Ency. Law (2d. ed.), 861-864, and notes, with cases cited. This doctrine is clearly set forth in vol. 1, Cyc., p. 1130, as follows: “Where the title to land is in conflict, and each claimant is in possession in part of the tract in controversy, the one having the better title has, by his occupation, constructive possession of the whole tract, except that which is actu ally in the possession of his adversary. The legal seizin as to the unoccupied portion of the tract follows the legal title, and the pedis possessio alone creates an adverse title.” And also in vol. 1, Am. & Eng. Ency. Law, p. 866; “In the case where a person who has a good title to one portion of a tract of land, but a merely colorable title to another part, enters upon and actually occupies the part to which he has a valid title, it would seem, though the question has not yet been definitely settled by the authorities, that such entry and possession will not give him constructive possession of the part to which he has only color of title.” Now, in this case, the deed of October 14, 1880, attempted to convey the land in controversy (section 4), and also the eastern port of section 5, which adjoined section 4. Appellee is not contesting appellant’s title to section 5. Her deed embraces only section 4. Appellant’s precise contention is that, since he has been in possession of section 5, which he says he does own, he is entitled, under the general rule above stated, to claim that his adverse possession extends to and embraces the whole of section 4, to which he has no paper title at all. This statement of his claim places him precisely within the exception to the general rule which is set out in the above authorities.

We are clearly of the opinion upon the facts in evidence and the law applicable to them that appellant never had anything hut a mere scrambling possession, and that the court below rightfully decided this controversy; wherefore the decree is affirmed.

Affirmed.