Brooks-Scanlon Co. v. Childs

• Decision Date: 26 February 1917
• Docket Number: 18735
• Citation: 74 So. 147,113 Miss. 246
• Court: Mississippi Supreme Court
• Parties: BROOKS-SCANLON CO. v. CHILDS

74 So. 147

113 Miss. 246

BROOKS-SCANLON CO. v. CHILDS

No. 18735

Supreme Court of Mississippi

February 26, 1917

Division A

APPEAL from the circuit court of Marion county, HON. A. E WEATHERSBY, Judge.

Trespass by E. H. Childs against the Brooks Scanlon Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Dale &amp Rawls, Griffith & Wallace, for appellant.

(1) The written color, if there be any written color at all in this case, is for six hundred and forty acres, and appellee himself introduces it, stands, on it, insists upon it and his privity thereto. This is evidence.

(2) The claim is therefore presumed to be co-extensive with the color brought forward and to the whole of it, and if the claim is to be reduced it must be by affirmative testimony of actual and definite fact, and so descriptively so in their notoriety as the actual adverse possession itself. There is no evidence whatever of such definite and descriptive claim of other than the six hundred and forty acres.

(3) Possession of so small an area as two patches of three and eleven acres will not constructively extend to so large a tract as six hundred and forty acres. There is no proof of any use of this land outside of the patches, and indeed the constructive possession would not even extend to one hundred and twenty acres, without proof that the remainder thereof, outside these small enclosures was "used in connection with the land actually possessed, and only to so much as is reasonable and proper for the purpose according to the custom of the country." There is no proof of this in the record and the testimony in the brief of counsel on that is inadmissable and we object on the ground that the witness has not been sworn.

(4) That if the color is not to the six hundred and forty acres then it rests in parol and confessedly in parol if Corley sold Childs any other than the whole six hundred and forty acres of which there is not a syllable of testimony and we go further and say that as a matter of fact in any event the color here is in parol for Childs admits that Corley made him no deed and his purchase from Corley was purely a parol one, and constructively adverse possession does not apply in parol except as between donor and donee and those in privity with them. Counsel say we have found no authority for this proposition. The quotation in our original brief bottom page five and top of page six, is from the opinion of the supreme court of Alabama in Tennessee Coal Company v. Linn, 123 Ala. 133, cited under note 41 (a) to C J. 196, and that is to partially re-quote.

"The doctrine of extending the adverse possession under a parol contract of sale to the boundary of the land as fixed by the contract is limited in its application to cases between vendor and vendee and those in privity with them."

And we repeat that every case in Mississippi admitting the doctrine of constructive possession under parol is a case as between vendor and vendee on their privileges; counsel for appellee has cited no case extending the doctrine; we have after a diligent search found none, and the Alabama case is the only case found, which we cite, declares the rule we quote. If it were otherwise the law, certainly it would in the course of so long a time, with so many decided cases on the subject of adverse possession, have been by some respectable court so determined and the opinion published.

Mounger & Ford, for appellees.

The facts shown on the trial of this cause were overwhelming that the appellee, E. H. Childs, entered on the land in controversy and went into the actual possession and occupation thereof in the year 1892 at the latest, and remained in such actual, open, notorious and exclusive possession and occupation of this land, claiming the same for a period of fourteen years or more, and the appellant is driven to the necessity of accepting this as a fact, but the appellant seeks to break the force of this state of facts by contending that the appellee's actual possession of a part of this land cannot be extended by construction to the whole thereof, because appellant contends that appellee was without color of title and could not acquire title to any more of this land than was actually occupied by the appellee. His contention is that a parol sale or gift of land cannot constitute color of title except as between the parties to the transaction, or those in privity with them. The appellant is not able to cite any authority in support of this proposition, but apparently gets some comfort out of the opinion rendered in the case made it unnecessary for the court to pass upon the proposition advanced by the appellant. In that case it appeared that a vendee under parol purchase or gift, had actual possession of a part of a tract of land, and of which he claimed possession of under his gift or parol purchase, and the court said that as between the parties there could be no question but that the law would impute possession in the vendee to all the lands within the calls of the parole contract or gift. Nothing in the opinion of the court in that case lends any support to the proposition contended for by the appellant, but we insist that under familiar rules and the facts of this case, that the rule of law contended for by appellant might be admitted to be a correct rule on a proper state of facts, but as having absolutely no application to the facts of this case. We insist that the appellee Chiles did not have color of title to the land in controversy when he entered on the same and went into the actual possession thereof. Thompson v. Weisman (Texas), 82 S.W. 503; Davis v. Davis, 68 Miss. 478.

The question then suggested by the argument contained in the appellant's brief is, will the actual possession and occupation of fifteen acres of a one hundred and twenty acre tract under color and claim of title to the whole for a period of ten years and more, give title to the whole by prescription. The rule of law settled in this state long ago and never departed from, is well stated in the case of Hanna v. Renfro, reported in 32 Miss. 125; Davis v. Davis, 68 Miss. 478; L. & N. R. Co. v. Gulf of Mexico Land & Improvement Company, 82 Miss. 188. The cases of Wilson v. Williams' Heirs, reported in 52 Miss. 487, is authority for the proposition that "where a person buys land and takes a deed of conveyance, his possession of it, when he takes possession, is co-extensive with the boundaries defined in the deed."

In conclusion, we submit that the matters raised by the appellant for reversal of this cause, are frivolous and that the case should be affirmed.

OPINION

SYKES, J.

The appellee, E. H. Childs, filed suit in the circuit court of Marion county against the appellant, Brooks-Scanlon Lumber Company, in an action of trespass. The declaration alleged that the plaintiff was in possession and was the owner of certain lands therein described, and that the defendant without the consent and over the protest of plaintiff burned one hundred and twenty-four panels of plaintiff's fense of the value of twenty-five cent per panel, and boxed for turpentine purposes the trees on about one hundred acres of plaintiff's land. The defendant pleaded the general issue, and gave notice thereunder that it would prove that the title to the land was not in the plaintiff, but was in the defendant. The testimony in the case failed to show the fence of plaintiff was burned by any of the agents or employees of the defendant. The principal contention in the case is whether or not the appellee is the owner of the lands which were boxed for turpentine purposes by appellant. The testimony showed that the lands involved in this controversy were swamp and overflowed lands, the title to which was granted the state by the United States under the act of Congress approved September 28, 1850. The state granted this land to Dave Stock in 1883, and by successive conveyances this record title is now vested in the appellant. The testimony of the appellee showed that under a void patent the state of Mississippi granted this land to the Pearl River Improvement & Navigation Company in 1871. Also appellee introduced a forfeited tax patent from the state to Samuel Huggins, dated May 2, 1881, which patent was void because the state had not at that time parted with its title to this land as swamp and overflowed land. Huggins sold this land (section 35) to C. W. Tynes in 1899. Tynes...