Chiles v. Gallagher

• Decision Date: 20 January 1890
• Citation: 67 Miss. 413,7 So. 208
• Court: Mississippi Supreme Court
• Parties: ANNIE E. CHILES v. C. W. GALLAGHER ET AL

7 So. 208

67 Miss. 413

ANNIE E. CHILES v. C. W. GALLAGHER ET AL

Supreme Court of Mississippi

January 20, 1890

October 1889

FROM the chancery court of Lauderdale county, HON. SYLVANUS EVANS Chancellor.

On the 16th of October, 1886, the appellant, Annie E. Chiles, filed the original bill in this case, alleging that she was the owner of twenty acres of land in the city of Meridian, and seeking to remove clouds from her title thereto. The appellees, Gallagher, Cameron, Watkins, and Champenois, were made defendants. They demurred to the bill, and after their demurrer was overruled they answered. Afterwards, as required by the court, the bill was amended by making the widow and heirs-at-law of F. B. Higgins, deceased, parties defendant. These parties answered and made their answer a cross-bill against complainant, Annie E. Chiles, and the original defendants. The complainants in the cross-bill alleged that they, with the said Annie E. Chiles, owned the land as tenants in common, and they sought to cancel the claim of the other defendants as a cloud on their title and asked for partition. All the defendants to the cross-bill answered. Testimony was taken at great length, and the cause was heard on the pleadings and proofs. A decree was entered dismissing the original bill absolutely and the cross-bill without prejudice. From this decree the complainant, Annie E. Chiles appealed. Complainant became of age August 18, 1881. The other facts are stated in the opinion of the court.

Reversed and cause remanded.

Walker & Hall, for appellant.

As to the questions decided, counsel made the following points:--

1. The fundamental proposition upon which complainant's right to relief rests is, that she is the true owner of the land. Watson v. Austin, 63 Miss. 469. Under the facts of this case, the test of ownership in the purchase of the land from Gibbs is, whose money paid the price. It is clear that J. C. Higgins borrowed the money to pay for the land. The money then was his own. Leeikauf v. Barnes, 66 Miss 207. A review of the evidence shows that F. B. Higgins did not furnish the money as a purchaser of the land. He loaned money to all his children, keeping an account, and directed in his will that the same should be treated as advancements. Had the title to this land been taken in the name of J. C. Higgins, the heirs of the father could not establish a resulting trust, because the money was advanced as a loan. Lawson L. Cases in Eq., 15; Perry on Trusts, § 133; 13 S. & M. 53; 40 Miss. 788; 41 Ib. 479. Under all the authorities, the transaction created the relation of mortgagor and mortgagee. J. C. Higgins bought the land and became owner. His father loaned him the money to pay the purchase price, and took the title in his own name merely as security, thereby becoming mortgagee. Runnels v. Jackson, 1 How [Miss.], 358; 23 Miss. 200; 26 Ib. 184; 32 Ib. 179; 50 Ib. 403; 54 Ib. 99; 12 How. [U. S.] 139.

2. J. C. Higgins was then put in possession, and the mortgagee had only a chattel interest. Carpenter v. Bowen, 24 Miss. 28. J. C. Higgins being the true owner, and in possession, after the debt was barred by limitation, the lien was lost. This being true, the naked legal title should be divested out of the heirs of F. B. Higgins in favor of complainant, the sole heir of J. C. Higgins.

3. It was not incumbent on complainant to show title in Gibbs, her father's vendor, for three reasons: First. If Gibbs was not owner, his deed gave color of title, and possession thereunder since 1859 would confer title by limitation. Second. Complainant's father having died in possession, title by descent was cast on her. 31 Miss. 547. Such title is prima facie good. 32 Miss. 125. And possession of the ancestor is prima facie evidence of seizin in fee. 60 Miss. 1048. Third. Her title at most is only conditionally denied. She is only required to meet the issues made by the pleading. Code 1880, § 1892.

4. [Counsel discussed at length the questions involved in the objections made to defendant's tax-title, and cited authorities to show the invalidity of the same; but in view of the decision of the court, it is not deemed necessary to give the argument as to this on either side.]

5. Mrs. Higgins, the mother of complainant, then a minor, was in possession of the land, receiving the rents, and it was her duty to keep the taxes paid. Instead of doing this, she confederated with Gallagher, and the land was forfeited for taxes, and bought in by him. Manifestly a tax-title thus acquired cannot prevail.

R. P. Williams, for appellees, the widow and heirs of F. B. Higgins.

1. The allegations of the bill to the effect that J. C. Higgins purchased the land, and went into possession, and occupied the same; that the naked legal title merely was vested in F. B. Higgins, and that he never had any other connection with the land, are all positively denied by the defendants we represent, and we could well rest this branch of the case on the pleadings.

2. But the evidence shows that J. C. Higgins, and, after his death, his widow, always held the land as tenant, and never claimed it adversely to F. B. Higgins.

3. For the reason just stated, no statute of limitations ran against F. B. Higgins, or his heirs, in favor of J. C. Higgins or complainant.

4. The widow of J. C. Higgins was in possession of the land by permission of the owners, the heirs of F. B. Higgins, and being in possession collecting the rents she confederated with Gallagher, her attorney, to allow the land to be sold for taxes, and he bought it in. It was the duty of Mrs. Higgins to pay the taxes, and this sale was a fraud on the owners of the land. The three years' possession under a tax-title thus acquired does not cure the defect and vest title. Pool v. Ellis, 64 Miss. 564; 63 Ib. 50; 26 Wis. 614; Black on Tax-Titles, § 284.

Besides, the assessment is void, and there is no sufficient description of the property. Cooley on Taxation, p. 563; Black on Tax-Titles, § 283. And again, the three years' statute was passed after this sale occurred. 60 Miss. 1038; 62 Ib. 433; Cooley on Taxation, 569, note.

J. S. Hamm, and Witherspoon & Witherspoon, for the other appellees.

Counsel filed an elaborate brief, making the following points:--

1. The averment of the bill that the land was in truth purchased by J. C. Higgins is denied by the answers. To contradict the deed and overturn the answers, strict proof is required. Especially is this true after a long lapse of time, and the death of the parties to the transaction. Perry on Trusts, § 137; 2 Story's Eq. Jur., § 1201; 1 Johns. Ch. 582; 2 Ib. 405.

The evidence here is wholly insufficient to show a resulting trust in favor of J. C. Higgins.

And the bill is fatally defective in failing to show that Gibbs, from whom the land was purchased, had any title. 61 Miss. 153.

2. The complainant has not shown title by adverse possession. The allegations of the bill as to this, instead of being established, are clearly disproved by the testimony. It is shown that the mother of complainant occupied the land until Gallagher bought, in 1876. There is some evidence that J. C. Higgins, in his lifetime, claimed the land, but he was never in possession.

Visible and notorious occupation, with claim of ownership, is necessary to constitute adverse possession, and it must be continued for the period prescribed by the statute. 31 Miss. 490; 36 Ib. 404; 38 Ib. 401; 30 Ib. 409.

Suing for trespass, paying taxes and speaking publicly of the claim, do not constitute adverse possession. 44 Miss. 668; 37 Ib. 138.

An infant claiming title by adverse possession, like an adult, must show continued possession for ten years. Complainant having shown no title cannot have relief. The court will not set aside a legal title in a doubtful case. Complainant must show the validity of his own title and the invalidity of the defendant's claim. 10 S. & M., 62; 13 Ib. 344; 47 Miss. 144; 44 Ib. 662; 49 Ib. 569; 51 Ib. 166; 52 Ib. 822; 61 Ib. 1; Hart v. Bloomfield, 66 Ib. 100; Sofia v. Stowe, Ib. 615.

The jurisdiction to remove clouds is limited. It is confined to the particular relief, and the special cases contemplated by the statute. 51 Miss. 789; 57 Ib. 239. It does not supersede the action of ejectment. 47 Ib. 395; 51 Ib. 412-789.

It was proper to dismiss the bill, and the cross-bill went with it. Belcher v. Wilkerson, 54 Miss. 677, and authorities cited.

3. Gallagher was not in possession of the land, and there was no obligation resting on him to pay the taxes. Therefore he was under no disability to buy at tax-sale. This case differs from McGee v. Holmes, 63 Miss. 52. There Tyson, who purchased the land from the state, was in possession when it was sold to the state for taxes.

It is not alleged in the bill, nor shown by the proof that Gallagher was the attorney of complainant. If he was the attorney of her mother, Mrs. M. E. Higgins, she alone could complain as to this, and she is not a party to the suit.

4. [Here counsel discussed the validity of the tax-title, but it is not considered necessary to give this part of the argument.]

5. Gallagher purchased January 3, 1876, and shortly afterwards went into possession and improved the land, and he and his vendees have been in possession ever since. Even if the tax-title is invalid, complainant cannot recover against them. Code 1871, § 1709; Code 1880, § 539; Nevin v. Bailey, 62 Miss. 433; 64 Ib. 514; 63 Ib. 50; Leffingwell v. Warren, 2 Black [U. S.], 599; Pillow v. Roberts, 13 How. [U. S.], 472; Sigman v. Lundy, 66 Miss. 522.

6. Gallagher's connection with the land as the attorney of Mrs. M. E. Higgins is not alleged in the bill as a ground for invalidating the tax-title. This fact crops out incidentally in the evidence merely, and co...