Crowder v. Neal

• Decision Date: 18 December 1911
• Citation: 100 Miss. 730,57 So. 1
• Court: Mississippi Supreme Court
• Parties: A. C. CROWDER and MRS. MATTEE CROWDER v. MRS. NANCY B. NEAL

57 So. 1

100 Miss. 730

A. C. CROWDER and MRS. MATTEE CROWDER v. MRS. NANCY B. NEAL

Supreme Court of Mississippi

December 18, 1911

October 1911

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL Chancellor.

Suit by Mrs. Nancy B. Neal et al. against A. C. Crowder and wife who filed a cross bill. From a decree for complainants defendants appeal.

Prior to February 18, 1895, John W. Robinson was the owner of a certain lot situated in the city of Jackson, described as follows: The south half of the north half of two-acre lot No 3, according to Daniel's official map. This property fronted east eighty-three feet on State street, and ran back between parallel lines to President street; the southern boundary being George street. The length of the block, as shown by the official map, is three hundred and twenty feet. At that time, however, there were no sidewalks on President street or George street adjoining this property, and this lot had a fence around it, which extended out eight feet on President street, over what was afterwards laid out by the city as a sidewalk. On the date above named Robinson sold to Mrs. Gunning the east half of said lot; the deed in question describing the property as the east half of the south half of the north half of two-acre lot No. 3, and giving the dimensions as being eighty-three feet front on State street by one hundred and sixty feet deep. The transaction was made with Mrs. Gunning's husband, and he afterwards built a fence around what he considered half of the lot and proceeded to improve it. In running his lines, he took half of the inclosed lot, which was in fact three hundred and twenty-eight feet in length, thus giving him a lot eighty-three feet by one hundred and sixty-four feet. He built a fence around this lot, and in July of the same year erected a handsome residence. He built outhouses, a stable, a servant's house, and added other improvements, including fruit trees. These improvements extended to the back fence, which was one hundred and sixty-four feet from the eastern boundary of the lot on State street. Mr. Robinson and Mr. Gunning are both dead; but it seems clear from the record that Mr. Gunning, in running his lines, took half of the lot and that until the institution of this suit thought he was only taking one hundred and sixty feet. However, the improvements and occupancy extended to the one hundred and sixty-four-foot line.

On September 21, 1903, Mrs. Gunning sold this lot to appellants, describing it just as it was described in the deed from Robinson to her, and adding, "together with all the improvements and appurtenances therein situated." Appellants immediately entered into possession of the property, and have occupied it continuously since. Their occupancy began at the moment Mrs. Gunning moved out. Appellants did not know the dimensions of the lot they were actually occupying, but in making the purchase the lot was pointed out to them as being within the inclosure and including all improvements, such as the servant's house, stable, fruit trees, etc., which extended to the back fence. The premises were delivered to appellants just as held and occupied by Mrs. Gunning, and appellants made certain additional improvements, such as rebuilding the back fence, and filling in low places in the lot, and adding to and improving the outhouses. On February 8, 1909 (Robinson being dead), the special commissioner of the chancery court sold to appellee Mrs. Neal the west half of the south half of the north half of two-acre lot No. 3, giving the dimensions as being "eighty-three feet front on President street, and running back one hundred and sixty feet." Thereafter, when pavements were laid on President street and George street, it was discovered that appellants' lot was one hundred and sixty-four feet in length, and appellee's lot one hundred and fifty-six feet; the sidewalks on President street having extended over the eight-feet formerly inclosed by the old fence. Thereupon the appellee laid claim to four feet at the back end of appellants' lot, and on the nineteenth day of June, 1909, filed suit for the recovery of same.

The appellants contended that they and those under whom they claim title had been in actual, open, notorious, adverse possession of the four feet in question for a period of more than ten years prior to the bringing of this suit, that is to say, since 1895--and that they were entitled to tack their occupation on the occupation of their grantors, so that there was continuous occupation for more than ten years, and that therefore they had acquired title by prescription, and that appellee had no right to maintain her suit. The court below held that there was no privity between the occupancy of the Gunnings and the Crowders, and that the entry of the appellants upon the premises constituted a new trespass, and that, as neither occupation had been continued for as much as ten years, the appellants had not acquired title by adverse possession. It was shown in the evidence that Mrs. Gunning never intended to claim more than one hundred and sixty feet, but that it was the mistake of her husband that one hundred and sixty-four feet was fenced in and improved. It is further shown, however, that all the property within the close was pointed out by Mr. Gunning to Mr. Crowder as being the property conveyed, and that delivery was made of the premises as thus indicated. It was also shown that, after the appellants had entered into possession of the premises conveyed to them by. Mrs. Gunning, they were permitted by Robinson to use the west half of the lot as a cow pasture. They used this vacant lot, however, with the express permission of Robinson, and recognized his title to the same; but appellants' claim to the four feet in question is not based upon any privilege granted by Robinson to use same as a pasture, but as being part of the lot conveyed to appellants by Gunning, and as being within the close and pointed out to them as part of the premises conveyed, and which, at the time of the institution of this suit, had been continuously occupied as a homestead by the appellants and the Gunnings, and that their successive possessions created such a privity of estate as permitted the possession of appellants and their grantor to be held as one continuous possession, since there had been no break in possession and occupancy for more than ten years.

Judgment reversed.

Watkins & Watkins, for appellants.

The proper determination of this case involves two legal propositions, and we shall present them in the proper order.

First: Was the occupation of Mr. and Mrs. Gunning adverse?

Second Can the possession of Mr. and Mrs. Gunning be tacked to that of Mr. and Mrs. Crowder so as to constitute one continuous holding of ten years? In other words, was there privity of holding between Mr. and Mrs. Gunning and the appellants, or was the entry of the appellants a fresh...