Darrill v. Dodds

• Citation: 30 So. 4,78 Miss. 912
• Court: United States State Supreme Court of Mississippi
• Decision Date: 25 March 1901
• Parties: MARTHA E. DARRILL v. RUFUS E. DODDS ET AL

30 So. 4

78 Miss. 912

MARTHA E. DARRILL v. RUFUS E. DODDS ET AL

Supreme Court of Mississippi

March 25, 1901

FROM the circuit court of Sunflower county. HON. FRANK E. LARKIN Judge.

The appellant, Darrill, was plaintiff, and appellees, Dodds and others, were defendants in the court below. The opinion of the court states the case.

Affirmed.

Hill &amp Sisson, for appellant.

There was no written notice of the nonjoinder filed with defendant's plea, as is required by § 664, code of 1892, and if there had been, the declaration could have been amended without working any hardship on defendants. Plaintiff was not required to show such title in this action as would be necessary in ejectment.

Plaintiff by her husband, exercised ownership and control over the land; sold the timber on section 33 to the defendants and refused to sell the timber on section 34 to them; she did other things evincing her possession and control--had some land cleared. Her husband also had a cabin on the land and made trips over there to look after this property.

Appellees also recognized her title and ownership, and wrote to her that on investigation of the title they found she was the owner of the land instead of the other parties they thought they had bought from, and they further recognized her title and right to the extent of trying to settle with her for the timber.

After this proof was made, it was incumbent on the defendants to show title, either in themselves or in some third party, to defeat the action. Ware v. Collins, 35 Miss. 223; 54 Miss. 708; 6 Ill. 49; 31 Kan. 310; 4 Ill. 532; 5 Kan. 151; 29 Kan. 28; 7 Kan. 35; 9 Kan. 199.

Johnson & Chapman, for appellees.

To show plaintiff's title to the land on which defendants cut timber, she read in evidence a deed from the auditor of public accounts to W. A. Montgomery, dated January 10, 1889; a deed from W. A. Montgomery conveying same land to C. L. Kidd, dated January 11, 1889; a deed by C. L. Kidd conveying same land to J. W. Rainey, dated January 11, 1889; and showed that the plaintiff was the widow of J. W. Rainey, who died before suit began. Rainey, at the time of his death, which occurred in 1894, left surviving him a widow and two children. One of these children died in March, 1897 or 1898, and the other is still living, about eight years old. There was, therefore, a misjoinder, or rather, a nonjoinder of a plaintiff, and this itself was sufficient to defeat the action. Haley v. Taylor, 77 Miss. 867.

In order to maintain this action, the plaintiff must show possession with color of title to the land on which the trespasses are alleged to have been committed, or she must show title. Color of title alone is insufficient; it is only sufficient when coupled with possession. Blackstone's Com., 210; Fitch v. New York, etc., Railroad Co., 10 L.R.A. 190; Church v. Meeker, 4 Conn. 422; McCleary v. Anthony, 54 Miss. 710; Winkler v. Meester, 40 Ill. 349; Heinrichs v. Terrell, 65 Iowa 25.

The auditor's deed, unaccompanied by a properly certified list of lands struck off to the state for unpaid taxes, is not even prima facie evidence of title in the grantee.

Argued orally by E. Johnson, for appellee.

OPINION

TERRAL, J.

Mrs. Mattie Darrill, owning a one-third interest in the south half of the north half of section 34, township 21, range 3, west, in Sunflower county, sued R. E. Dodds & Bros., the first count being in debt and claiming therein the sum of $ 3,735, the statutory penalty for cutting down and carrying away from said land forty-four ash trees and 205 oak trees at fifteen dollars per tree; the second count being in assumpsit for the sale of said trees by plaintiff to defendants for a reasonable price, and alleging said trees to be reasonably worth $ 3,735. The defendants had a verdict and judgment by reason of a peremptory instruction, and the case is here by appeal.

Insistence is made here for the first time in support of the judgment that the co-tenant of Mrs. Darrill should have been joined with her in the action, whether in debt for the penalty or in assumpsit for the reasonable value of the trees. If such point had been made in the court below, the plaintiff could have easily remedied the matter by amending the complaint and adding the name of her co-tenant as a joint plaintiff; by reason of 664 annotated code, a defect by nonjoiner of plaintiffs is waived unless made in writing in the circuit court before the trial commences.

The trial judge has not specified upon what ground the peremptory instruction was given, and we are left to determine that matter upon...