Bynum v. Stinson

• Decision Date: 20 October 1902
• Citation: 32 So. 910,81 Miss. 25
• Court: Mississippi Supreme Court
• Parties: HENRY BYNUM v. JOHN STINSON

32 So. 910

81 Miss. 25

HENRY BYNUM v. JOHN STINSON

Supreme Court of Mississippi

October 20, 1902

FROM the chancery court of Lauderdale county. HON. STONE DEAVOURS Chancellor.

Stinson the appellee, was complainant in the court below; Bynum appellant, was defendant there. The suit was a proceeding in equity to quiet title to land.

The bill averred that "about fifteen years ago" complainant and defendant exchanged, for mutual benefit, by oral agreement, two parcels of land, and that each took possession of that part granted to him by the other and exercised the rights of a real owner over it, until the beginning of the present year, 1902, when defendant undertook to take charge of the lands granted to complainant. The opinion of the court contains a statement of the allegations of the bill in reference to the description of the land in suit and as to the adverse possession of complainant. The bill prayed for a confirmation of complainant's title to the land. Defendant demurred to the bill, assigning as causes therefor that description of the land is vague, indefinite and uncertain, and that proper title is not shown in complainant, nor does he sufficiently allege adverse possession. This demurrer was overruled, and the defendant appealed to the supreme court.

Affirmed.

Etheridge & McBeath, for appellant.

The appellee is seeking to confirm his title to a certain tract of land, and he must make that confirmation certain and not leave it in that uncertain condition where other litigation is liable to follow. We contend that there is not one fixed point in the description; and there is not one fixed distance, but "about" so far. This is not sufficient; the appellee can have a surveyor definitely locate the land. Note particularly the northern boundary of said laud "being bounded on the north by defendant's fence." What fence? What kind of fence? Appellee says that the no-fence law is now in operation in that community, and certainly a fence in a "no-fence law" district is not a very definite boundary. We thinkthat it is the purpose of statutesconfirming title to fix the title so as to avoid further litigation, but certainly if a decree was rendered on this bill, there would not be a definite line on either side established. The only allegation in the bill of adverse possession is in the following words:

(1) Exercised the rights of a real owner over it.

(2) That complainant has been in actual undisputed adverse possession of said parcel of land received from defendant about fifteen years, and has openly and notoriously exercised the control of an owner over it.

(3) Complainant has continuously and uninterruptedly used this land as his own, etc.

There is no sufficient allegation as to ten years' actual adverse possession. As to the time, the bill says:

(1) About fifteen years ago complainant and defendant for mutual benefit exchanged by oral agreement, etc.

(2) That complainant has been in actual uninterrupted adverse possession of said laud for fifteen years.

If appellee has been using this land for ten years or more, his pleadings should so aver. There is nowhere in the bill a single allegation that complainant was "claiming to be the owner" for ten years, or for any time. The bill does allege that complainant has "exercised control of an owner over it," and in another place, "exercised the rights of a real owner over it." A person may exercise the control of an owner over a piece of land and may exercise the rights of a real owner over it, and still not claim to be the owner. But unless he does claim the property against the world, then adverse possession does not run.

The demurrer should be sustained Because the bill does not allege that the appellee had land inclosed, and the inference is that it was not inclosed, and the facts are it was not inclosed. Appellee says that he was cultivating a small part of it. What part? Having no color of title, and the land not being inclosed, appellee, if entitled to have title confirmed to any part, is limited to that of actual occupancy. Does he attempt to state what land he was cultivating?

Appellee shows by the way of showing possession of the premises that "he cut firewood from it, raked and hauled straw and leaves from it, split rails upon it, sold said timber from it, and cultivated a small part of it." Suppose he did all these things, nowhere does he say that all the time he was doing this he was claiming title thereto. Woods on Lim. of Actions, p. 520, says: "An entry upon lands, cutting wood, and splitting rails, or occasional entries at long intervals, at one time, or cut timber, and at another make bricks, does not tend to establish a title to the land by adverse possession." Carroll v. Gibson, 23 Ga. 539; Williams v. Wallace, 78 N.C. 354.

The bill seeks to confirm the title to a small tract of land which the appellee alleges he exchanged by oral agreement with appellant, setting out the land appellant was to receive. We insist that equity would require that he tender a deed to appellant before asking his title to be confirmed.

"The bill does not deraign complainant's title or attempt to do so," or give any valid reason why it is not done.

Section 501, code 1892, says: "In bills to confirm title to real estate and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title, and a mere statement therein that complainant is the real owner of the land is insufficient unless good and valid reasons be given why he does not deraign his title."

This is a plain statutory provision, with which appellee has not complied, nor given any good and valid reason for not so doing.

H. R. Stone, for appellee.

Adverse possession, though under parol gift, if it continues for ten years, confers title. No written transfer is necessary. Davis v....