Bentley v. Callaghan

• Decision Date: 25 November 1901
• Citation: 30 So. 709,79 Miss. 302
• Parties: HARRISON BENTLEY ET AL. v. MIKE CALLAGHAN'S EXECUTOR
• Court: Mississippi Supreme Court

30 So. 709

79 Miss. 302

HARRISON BENTLEY ET AL. v. MIKE CALLAGHAN'S EXECUTOR

Supreme Court of Mississippi

November 25, 1901

FROM the circuit court of Noxubee county. HON. GUION Q. HALL Judge.

Callaghan whose executor is the appellee, was the plaintiff in the court below. Bentley and others, appellants, were defendants there. Callaghan and two other persons formerly owned the land jointly, and Callaghan had possession. He and one of his cotenants mortgaged their interest in the land. The mortgage was foreclosed, and the title conveyed thereby passed to the third tenant, who sold the entire interest to defendants Callaghan yielding them possession. Afterwards Callaghan instituted this suit, an action of ejectment, claiming that he had acquired title to the lands under the statute, code 1880, § 2668, code 1892, § 2734, by more than ten years' actual adverse possession before he left the premises, and he recovered judgment in the court below. A few days after the rendition of the judgment below, and before the prosecution of the appeal, Callaghan, the plaintiff died leaving a will by which a Mr. Rives was appointed his executor, and Rives qualified as such. Bentley and others, appellants, then appealed to the supreme court, making Rives, the executor, the appellee. Rives, executor, appeared in the supreme court and moved to dismiss the appeal, assigning as cause therefor, that the executor was not a party to the cause, and that the judgment had not been revived. This motion the supreme court overruled, without delivering any opinion thereon. (See New Orleans, etc., R. R. Co. v. Rollins, 36 Miss. 384, and code 1892, § 1658, which are supposed to have controlled.) The case was then submitted on the merits.

Reversed and remanded.

McWillie & Thompson, for appellants.

Defendants had both title and possession when the suit was begun, unless that title was divested by plaintiff's long possession. Plaintiff's possession was not adverse to his tenants in common; it was not adverse to the trustee and beneficiaries in the mortgage which he executed. 1 Am. & Eng. Enc. L. (2d ed.), 801, 802 and cases cited; Ib., 815 and cases cited. The possession of a mortgagor, even after foreclosure, is in subordination to the title of the purchaser until an intention to claim the premises adversely is made manifest. The case in the court below should have been tried in recognition of these principles, but it was not. No attention whatever seems to have been given to them. The trial proceeded as if the parties had been strangers. The plaintiff testified that he was in possession from 1861 to 1896, but there is nothing to show a change in the character of his holding.

The third instruction given for plaintiff is erroneous, because it applied to the case the doctrine of adverse possession as between strangers; and, besides, it took from the jury the right to determine the weight to be attached to the evidence of plaintiff's surrender of the land in 1896. The surrender of the premises was a material piece of evidence for defendents, in this, it tended to show that plaintiff's occupancy was not adverse and hostile.

Rives & Brooks, for appellees.

The evidence of plaintiff's witnesses, as well as his own testimony, shows conclusively that M. Callaghan was in actual, open and adverse possession of the land in controversy for a a period of nearly twenty years, claiming it as his own and exercising every act of ownership and control over it. The jury found in accordance with these facts and the law.

That such a confession confers title needs no argument. Jones v. Brandon, 59 Miss. 585; Davis v. Bowmar, 55 Miss. 671; Parton v. Valley Land Co., 68 Miss. 739; Davis v. Davis, 68 Miss. 478; Geohegan v. Marshall, 66 Miss. 676; Metcalfe v. McCutchen, 60 Miss. 145; Green v. Mizelle, 54 Miss. 671.

Argued orally by R. H. Thompson, for appellant.

OPINION

CALHOON, J.

Callaghan Thomas and Beauchamp owned the land as tenants in common, and Callaghan was in possession as such tenant in common. His possession could not become adversary to them, or those claiming under them, without notice that his claim was antagonistic. There must be shown such an intent to...