Barner v. Lehr

• Decision Date: 23 December 1940
• Docket Number: 34332
• Citation: 190 Miss. 77,199 So. 273
• Court: Mississippi Supreme Court
• Parties: BARNER et al. v. LEHR et al

199 So. 273

190 Miss. 77

BARNER et al. v. LEHR et al

No. 34332

Supreme Court of Mississippi

December 23, 1940

APPEAL from the chancery court of Sunflower county, HON. J. L WILLIAMS, Chancellor.

Suit by Mrs. J. H. Barner and others against John Curtis Lehr, Jr. and others, for cancellation of claims of the defendant to certain property, and for other relief, wherein the defendants filed a cross-bill. From a decree for the defendants, the complainants appeal. Reversed and rendered.

Reversed and rendered.

Johnson & Allen and Cooper & Thomas, all of Indianola, and H. Lee Herring, of Ruleville, for appellants.

There is no proof that any deed to the land in controversy was ever delivered by Mrs. Barritt to Mr. Barritt, nor that he ever deprived her of the possession of the land. During the life of Mr. Barritt he farmed and cultivated and occupied the land with his wife, their home being on an adjoining lot.

However much the courts may disagree in respect of exclusiveness as an element of adverse possession, there is no, nor can there be any, dissent from the proposition that a possession of the adverse claimant in common with the rightful owner is fatally wanting in exclusiveness and can never ripen into title by adverse possession. In these circumstances the possession in law is deemed to follow the title. There can be no disseizin unless the rightful owner is altogether deprived of possession.

2 C. J. p. 120, sec. 199 and p. 75, sec. 55.

The testimony of Miss Marshall as to the deed hardly rises to the dignity of proof inasmuch as there is nothing in her testimony, nor in the evidence anywhere, to show that Mrs Barritt ever signed and delivered to Mr. Barritt a deed to the land in controversy, or any part thereof. The evidence also wholly fails to show any adverse possession and occupation of the land by Mr. Barritt to the exclusion of Mrs. Barritt, but on the contrary it shows that she was never disseized and that the land, being a part of the farm on which they resided, was occupied, managed, and operated by him and that his possession was in common with hers, the rightful owner of the land.

Certainly, Mrs. Barritt, nor those claiming title to the land through her, would be estopped by her having had the will of Mr. Barritt admitted to probate. Her silence, if such there were, in no way prejudiced the rights of cross-complainants or Mr. Barritt, and by reason thereof neither they nor any of them would acquire title to the property in controversy by estoppel.

Roberts v. Bookout, 162 Miss. 676, 139 So. 175; 21 C. J. 1120, sec. 124.

The burden of proof is, of course, on those claiming the delivery of a deed to show that there was delivery. They fall far short of the necessary requirements when they merely show a third party has possession of a deed. So far as this record shows, the wife, as grantor, might have at any time withdrawn the deed from the said Lehr as third party and destroyed it.

We do not say that valid delivery cannot be made through a third person to a grantee, but if delivery is made through a third party the record must go further and show that such third person held it for the benefit of or as the agent of the grantee, with authority to deliver to the grantee, and further that the grantor had lost the right to withdraw and destroy the deed.

18 C. J. p. 203, sec. 99, p. 215, sec. 125, p. 413, sec. 492; Weisinger v. Cock, 67 Miss. 511, 7 So. 495, 19 Am. St. Rep. 320; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147.

The facts shown in this record are materially lacking in showing that Mr. Barritt had actual, adverse, uninterrupted, hostile, and exclusive possession and occupation of the lands of his wife to the extent necessary to divest her of title. We say further that no husband living with his wife on a farm, part of which is owned by the wife, but which farm is operated and managed by the husband, can claim the wife's farm property adversely. The occupancy of the land must be adverse to the party against whom it runs and cannot run against the wife in favor of her agent. This is particularly true where she continues to live on the farm.

Sec. 1943, Code 1930.

J. M. Forman, of Indianola, and R. D. Everitt, of Ruleville, for appellees.

In order to constitute delivery it is not necessary that there be an actual manual delivery from the grantor to the grantee. The grantor may make delivery of a deed by delivering it to a depositary to be by him delivered to the grantee, and this delivery will be good though made after the grantor's death.

Wilson v. Bridgforth, 108 Miss. 199, 66 So. 524; Hall v. Waddill, 78 Miss. 26, 27 So. 937; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; Johnson v. Brook, 31 Miss. 17; Tyler v. Hall, 106 Mo. 313, 27 A. S. R. 337.

The deed was executed by Mrs. Barritt. It is true it was lost or destroyed, but its existence was proven by Miss Annie Marshall, and her evidence showed its substantial parts, and the substance of its contents. She saw the deed, knew it was written with pen and ink on legal size paper, knew it was conveying Lot 7 of Section 3, Township 21, Range 4, knew it was to her husband, Mr. Barritt, knew it was signed and acknowledged by Mrs. Barritt, knew the consideration, all of which is more than is necessary to establish the contents of a lost deed.

It is not necessary to prove the contents of a lost document literally, but only substantially. If the document is a deed it is sufficient for it to appear from the evidence that it was executed, to and by whom, that it contains the necessary words of grant, the consideration therefor, and what property was covered thereby. These facts must ordinarily be proved by witnesses who have seen and read the lost deed, but their existence may be proved in the controversy where the grantor or his heirs are asking to recover the land by admissions and conduct of the grantor inconsistent with their non-existence.

Carter v. Myers, 132 Miss. 698, 95 So. 252.

Even if there were no deed executed and delivered by Mrs. Barritt to Mr. Barritt for this land, which we do not admit, still we say that Mr. Barritt acquired title to this land by adverse possession.

Husband and wife can acquire title by adverse possession against the other.

Hartman v. Nettles, 8 So. 234; Massey v. Rimmer, 13 So. 832; Crowder v. Neal, 57 So. 1.

Mr. Barritt intended to describe his land in Range 4. The proof shows he could not have undertaken to devise land in Range 3, since he owned no lands in Range 3, and further, there is no Lot 7 in Section 3, Township 21, Range 3, as the land in that section in Range 3 is divided into quarter sections and not lots; therefore, to interpret the will literally in this case would be saying that the testator was undertaking to do an impossible thing by devising land of an impossible description.

Where there is a misdescription of the property devised, if, after striking out the erroneous part of the description, enough remains, when considered in the light of the circumstances surrounding the testator, to identify the property he intended to convey, the remaining description may be taken to give effect to the testator's purpose.

40 Cyc. 1559; Chrisman v. Magee, 108 Miss. 550, 67 So. 901; Chappel v. Missionary Society, 50 Am. St. Rep. 279; Patch v. White, 116 U.S. 210, 6 S.Ct. 617, 29 L.Ed. 864.

OPINION

Ethridge, J.

The appellants, complainants in the court below, filed a bill against the appellees for the cancellation of claims of appellees to certain property described in the bill, and for further relief, general and special. The bill alleged that the lands involved in the suit, to which the defendants claimed the right, had belonged to Mrs. M. Barritt, also known as Mrs. C. A. Barritt, in her lifetime, she having died on December 18, 1938, without issue, and without having made conveyance of the said property during her lifetime. She died intestate, seized and possessed of the lands, leaving, the bill alleged, the complainants as her sole heirs-at-law, who inherited the lands; but the defendants claimed title thereto.

The defendants were summoned and answered the bill, propounding their claim to the land in question through a will made by M. Barritt, the husband of Mrs. M. Barritt; also setting up the claim that in his lifetime Mrs. M. Barritt (or Mrs. C. A. Barritt) conveyed the lands to her husband, which deed was never placed of record, and could not be produced, as it was claimed to have been lost.

Title to the land in question was deraigned from the United States government through the mother of Mrs. C. A. Barritt, and passed to Mrs. Barritt through her mother's will, upon the death of the latter; such lands being described in the bill of complaint, deeds, etc., in Mrs. C. A. Barritt's chain of title, as lot 7, section 3, township 21 north, range 4 west, "less and except therefrom twelve acres, " theretofore conveyed to another.

The land is described in the will of M. Barritt, which will was probated after his death by his wife, Mrs. C. A. Barritt, named therein as executor, reading, in part, as follows: "To my wife, C. A. Barritt, I devise that land located in Sunflower county, Mississippi, described as all that part of Lot seven of Section three, Township twenty-one, North, Range three West, which lies between the south boundary of Lot One of said Section and the gravel public road, for and during her natural life, with remainder in fee to E. G. Hunter."

In another article of the will it is provided: "To my wife C. A. Barritt, I devise all of my other real estate of every kind and description and wheresoever located for and during her natural life, with remainder in fee to the children of John Lehr and Mollie Lehr, including their children, if any, hereafter to be...