Cox v. Richerson

• Decision Date: 02 October 1939
• Docket Number: 33793
• Citation: 191 So. 99,186 Miss. 576
• Court: Mississippi Supreme Court
• Parties: COX v. RICHERSON et al

191 So. 99

186 Miss. 576

COX v. RICHERSON et al

No. 33793

Supreme Court of Mississippi, Division B

October 2, 1939

Suggestion Of Error Overruled October 16, 1939.

APPEAL from the chancery court of Tunica county HON. R. E. JACKSON Chancellor.

Suit by Lois Laverne Richerson and others against J. J. Cox, to cancel conveyances by tax collector to defendant. From a final decree for plaintiffs, defendant appeals. Reversed and rendered.

Reversed and rendered.

J. D Magruder, of Tunica, and W. W. Venable, of Clarksdale, for appellant.

There is no estoppel by deed to show lands were sold as a whole in the manner required by statute.

The statutes providing that the tax assessed is a charge against the particular land assessed, and the land being assessed in three separate pieces, the recitation in the deed that the land was sold for the tax assessed against it was true whether there was one deed or three deeds.

Code 1930, sections 3120, 3248, 3249; McComb v. Gilkey, 29 Miss. 146.

Recitals of consideration in a deed may be disputed by parol and do not work an estoppel.

Wigmore on Evidence, sec. 2433; Parker v. Foy, 43 Miss. 260; Baum v. Lynn, 62 Miss. 932; Shelton v. Franklin, 224 Mo. 342, 135 A. S. R. 537; Board of Com. v. Concordia Land & Timber Co., 141 La. 247, 74 So. 291; Greer v. Wheeler, 41 Iowa 85.

Where parcels have been sold separately as matter of fact, as required by statute, to the same person, they may be united in the same conveyance.

Montgomery v. Berge, 31 Ark. 491; Cresman v. Johnson, 23 Col. 264; State ex rel. Warwick v. Jordon, 30 Fla. 1, 17 So. 742; Cartwright v. Korman, 45 Kan. 515; Allen v. White, 98 Mo. 55, 10 S.W. 881; Foot v. Holt, 14 Neb. 221, 15 N.W. 203; Carter v. Moore, 183 Miss. 112; Louis v. Griffin, 103 Miss. 578; Gregory v. Brogan, 74 Miss. 694.

The court below erred in holding that appellees, with the exception of Laverne Richerson, were not barred by the three year statute of limitations, to-wit, sec. 2288, Code of 1930. The court so held by holding that there had not been "actual occupancy, " taking the view that actual occupancy within the purview of the statute required that appellant should actually reside on the land. This was error. Actual occupancy and actual possession are interchangeable in meaning and actual possession does not require actual residence on the land.

McCaughn v. Young, 85 Miss. 277; 3 Washburn on Real Property, sec. 1965; 2 Wood on Limitation, Sec. 267.

Possession is always actual when it is an open and peaceable occupation.

Vacalder v. Silver Creek Mines, 86 F. 90; 29 C. C. A. 291.

Actual possession of land consists in exercising acts of dominion over it, in making the ordinary use of it, and in taking the profits of which it is susceptible.

McCaughn v. Young, 85 Miss. 277; Gathings v. Miller, 76 Miss. 651; Massey v. Rimmer, 69 Miss. 667; McGee v. McGee, 37 Miss. 138; Ford v. Wilson, 35 Miss. 490; Eastern R. Company v. Allen, 135 Mass. 13.

It has always been the law in Mississippi in applying the statutes of adverse possession that possession to be deemed adverse must be visible, actual, notorious, and uninterrupted.

McCaughn v. Young, 85 Miss. 277; Davis v. Bowmar, 55 Miss. 671.

In the case at bar there was an actual entry shown and taking possession of the land by appellant and the leasing by him of the land to a tenant for two years. Personal occupation of land by a person claiming title thereto by adverse possession is not necessary.

Kelly v. Huffman, 30 P.2d 593.

Possession by his tenant is the possession of the adverse claimant.

Linden Mayor et al. v. Gunst, 70 Miss. 693; Harvey v. Briggs, 68 Miss. 60; Wilson v. Williams, 52 Miss. 487; Abel v. Love, 143 N.E. 515, 81 Ind.App. 328; Flynn v. Blakeman, 254 Ky. 416, 71 S.W.2d 961; Capps v. Merryfield, 277 Mich. 194, 198 N.W. 918; Kelly v. Greene, 142. Minn. 82, 170 N.W. 922; Schofield v. Harrison Land and Mining Co., 187 S.W. 61; Holtzman v. Douglass, 168 U.S. 278, 42 L.Ed. 466; Houston Oil Co. v. Goodrich, 213 F. 136; Warner v. Wickizer, 146 Okla. 232, 294 P. 130; Dykeman v. Farish, 6 Pa. 210, 47 A. D. 450; Ford v. Wilson, 35 Miss. 490; Kirkman v. Mays, 12 So. 443; 2 C. J. S. Sec. 10 and notes.

None of complainants who are remaindermen have any cause of action, the life tenant being alive; the minor remainderman has only a right to redeem.

Code of 1930, Sec. 3264; Carter v. Moore, 183 Miss. 112.

James McClure, of Sardis, for appellees.

When three separate sales are made for delinquent taxes of land that comprises one tract and are assessed to the same owner, the same are void.

Sec. 3249, Code 1930; Gregory v. Brogan, 74 Miss. 695; Wilkerson v. Harrington, et. al. 115 Miss. 637, 76 So. 563; Carter v. Moore, et al., 183 So. 512, 183 Miss. 112; Womack v. Central Lmbr. Co., 131 Miss. 201, 94 So. 2; Talmadge v. Seward, 155 Miss. 58, 124 So. 791; Nelson v. Abernathy, 74 Miss. 164.

The testimony of the witness, Garner, was correctly excluded by the court:

Because said testimony would have altered, varied, changed and contradicted the terms of the three written instruments, namely, the three tax deeds.

Davidson v. Jones, et al., 26 Miss. 56; Baum v. Lynn, 72 Miss. 932; Bower et al. v. Chess & Wymand, 83 Miss. 219, 35 So. 444; Martin v. Partee, 121 Miss. 482, 83 So. 673; Neal v. Shepard, 128 So. 69, 157 Miss. 730.

Because the consideration recited in the three tax deeds is contractual, and the same operates to release the owner of the lands from the payment of taxes assessed thereon.

Sections 3122 and 3273, Code of 1930; Carrier & Co. v. Quitman County, 125 So. 416; Dodge v. Cutrer, 101 Miss. 845; Reed v. Fed. Land Bank, 148 So. 392, 166 Miss. 392; McArthur et al., v. Fillingame, 186 So. 828; 10 R. C. L., 1044, par. 238; Baum v. Lynn, 72 Miss. 932; 16 Am. Jur., page 680, paragraphs 433, 434; 20 Am. Jur., page 975, par. 1112.

Because the proffered testimony of the witness, Garner, would have altered the legal effect of the three tax deeds.

10 R. C. L. 1046, par. 240; Carter v. Moore, 183 So. 512, 183 Miss. 112; Mechanic State Bank v. Tuf-Nut, 188 So. 278; 20 Am. Jur., page 986, par. 1133; Divelbiss v. Jones, et al., 164 Miss. 111, 144 So. 464.

Because the proffered testimony would show that the object and purpose of the deeds in question were different from those specified therein.

16 Am. Jur., page 686, par. 445.

Because the three deeds are regular and unambiguous upon their face.

Edrington v. Stephens, 150 Miss. 272, 114 So. 387; Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Jeffrey v. Jeffrey, 157 Miss. 187, 127 So. 296; Wright v. Lott, et al., 155 Miss. 185, 124 So. 270.

Because the tax collector who executed the deeds couldn't impeach his own act, and, consequently, appellant, who claims under the deeds, is also estopped from doing so.

Allen v. Lenoir, 53 Miss. 321; Harmon v. Magee, 57 Miss. 410; Stone v. Montgomery, 35 Miss. 83; Stone et al. v. Grenada County, 180 Miss. 566, 178 So. 107; Lamar v. Lechlider, 185 So. 833 (Fla.) .

Because the proffered testimony of the witness, Garner, if admissible, does not show that the lands were sold as required by law.

Sec. 3249, Code of 1930; Nelson v. Abernathy, 74 Miss. 164, 21 So. 150; Gregory v. Brogan, 74 Miss. 694; Mixon v. Clevenger, 74 Miss. 75; Neal v. Shephard, 128 So. 69, 157 Miss. 730; Dunbar v. Interior Lmbr. Co., 102 Miss. 623.

Because appellant is estopped to falsify the recitals in the three deeds after accepting and filing the same for record, and taking possession of land conveyed thereby.

Garmon v. Fitzgerald, 151 So. 726, 168 Miss. 532; Yoars v. N. O. Linen Supply Co., 185 So. 525 (La.) ; Robbins v. McMillan, 26 Miss. 434; Clark v. Dorsett, 157 Miss. 365, 128 So. 79; Sec. 3273, Code 1930.

Appellee is not barred by the three year Statute of Limitations (Sec. 2288, Code 1930) from attacking the tax sales for the following reasons:

Because Sec. 2288 of Code of 1930 does not apply to avoid sales, but only to defects.

Sections 2288 and 3249, Code of 1930; Mixon v. Clevenger, 74 Miss. 75; Nelson v. Abernathy, 74 Miss. 164, 21 So. 150; Carter v. Moore, 183 So. 512, 183 Miss. 112; Patterson et al. v. Morgan, 138 So. 362, 161 Miss. 807; Russell Corp. v. Russell, 178 So. 815, 182 So. 102, 182 Miss. 385.

Because actual occupation in the statute is not the equivalent of possession.

Sections 2287 and 2288, Code of 1930; Gregory v. Brogan, 74 Miss. 694; Pearce v. Perkins, 70 Miss. 276; People ex rel. Turner v. Kelsey, 89 N.Y.Supp. 46; Laws 1900, p. 62, c. 20, par. 220, subdivision 1; Cutting v. Patterson, 85 N.W. 172, 173, 82 Minn. 375; Gen. St. Ch. 23, par. 48; Hunt v. Smith, 9 Kans. 137, 145.

Because the three year statute of limitations, Sec. 2288, does not begin to run against the appellees, Richersons, who are remaindermen, until the death of the life tenant.

Carter v. Moore, 183 So. 512, 183 Miss. 112.

The appellees who are remaindermen were not precluded from instituting the bill to remove clouds on their title, even though the life tenant is living.

5 R. C. L., 651, par. 21; Gibson v. Jane, et al., 37 Miss. 164; Clark et al. v. Foster, et al., 110 Miss. 543; Sections 404 and 1432, Code of 1930.

At the time the appellees filed their bill the period of redemption had not expired as to the appellee, Lois Laverne Richerson.

Swalm v. Sauls, 141 Miss. 515, 106 So. 775.

Argued orally by W. W. Venable, for appellant, and James McClure, for appellee.

OPINION

Ethridge, P. J.

This is an appeal from a final decree of the Chancery Court of Tunica County cancelling conveyances of the tax collector to the appellant, J. J. Cox, and awarding possession of lands to the appellees, together with judgment for $ 296.21, a finding of the excess value of the use and occupation...