Eady v. Eady

• Decision Date: 27 September 1978
• Docket Number: No. 50569,50569
• Parties: W. G. EADY v. J. B. EADY, Ruth Eady, Robert Liston Eady and Martha Jean Eady.
• Court: Mississippi Supreme Court

Page 830

362 So.2d 830

W. G. EADY v. J. B. EADY, Ruth Eady, Robert Liston Eady and Martha Jean

Eady.

No. 50569.

Supreme Court of Mississippi.

Sept. 27, 1978.

Rainer & Sumrall, Pearl, Larry E. Clark, Taylorsville, J. Edward Rainer, Pearl, for appellant.

Tullos & Tullos, Eugene C. Tullos, L. D. Pittman, Raleigh, for appellees.

Before ROBERTSON, SUGG and COFER, JJ.

COFER, Justice, for the Court:

W. G. Eady, appellant, brought suit in the Chancery Court of Smith County to cancel cloud on title to land allegedly his, by appellees' claim thereagainst. Defendants, appellees here, are J. B. Eady and Robert Liston Eady, father and son, and their wives. Appellant and J. B. Eady are brothers, and the land involved came from the estate of their father. Appellant also prayed injunction against appellees' assertion of title to the land and otherwise attempting to exercise dominion over it. Appellant claims record title by deed. Appellees claimed ownership by adverse possession. The chancellor entered decree in appellant's favor as to part of the land, and upheld appellees' adverse possession defense as to part thereof.

In 1948, appellees J. B. Eady and his wife, Mrs. Ruth Eady, conveyed to appellant:

South 50 acres of the north half of the northeast quarter, less the East 10 acres, Section 12, Township 4 North, Range 7 East.

By their deed they reserved the "right of free use, control and possession of the above described property the remainder of the natural life of their mother Mary Lula Eady, provided that the grantors therein pay all taxes on said property, look after and care for said property, but on the date of the death of their said mother, the conditions herein set out in the reservations are immediately terminated."

Thereafter on February 25, 1959, appellant and appellees J. B. Eady and wife, Mrs. Ruth Eady, conveyed by quitclaim deed, all of the south 50 acres of the north half of the northeast quarter of Section 12, Township 4 North, Range 7 East, to appellants' and appellee J. B. Eady's mother, Mrs. Mary Lula Eady. When the purpose of this conveyance had been accomplished, Mrs. Mary Lula Eady executed warranty deed to appellant to the forty acres first hereinabove described, the deed being dated March 13, 1959.

The record reveals that there is a fence on or near the property first hereinabove described running in a more or less northerly and southerly direction. Appellant claims, and the chancellor, by his decree, concluded that the fence runs through the land in dispute, causing some twelve acres thereof to be easterly of the fence (which the chancellor found to belong to appellees by adverse possession) and some twenty-eight acres to be westerly thereof (adjudged to appellant).

The record is clear that paper title to the entire forty acres is in appellant. Appellee Liston Eady who claims the land east of the fence disclaims in his testimony any title by adverse possession, asserting rather that the forty acres deeded as hereinabove set out is there, appellant has it, and it does not include any land east of the fence.

Appellant strongly denied any adverse possession of appellees ripening into title, but rather effectually asserted his own continued ownership of it and that appellees J. B. Eady and Liston Eady only occupied it, to the extent of their occupancy, by his permission and consent.

Several assignments of error addressed to the claim of adverse possession were made by appellant, and these will be decisive of this appeal.

Certain applicable legal principles are timely here. Persons relying on adverse possession as basis for their claim of title have the burden of proof on the issue. Kayser v. Dixon, 309 So.2d 526, 528 (Miss.1975). For title to ripen in a claimant by adverse possession, the occupancy must be "actual, adverse, hostile, exclusive, peaceful, uninterrupted and continuous, under claim of ownership, open, notorious, and visible for the statutory period of ten years." Kayser v. Dixon, supra, and authorities therein cited. Record title coupled with actual possession of a part of the land constitutes constructive possession of the whole, except that part of the land in conflicting actual possession of another. Evans v. Shows, 180 Miss. 518, 522, 523, 177 So. 786, 787 (1938), Shepherd v. Cox, 191 Miss. 715, 731, 1 So.2d 495, Sugg. of error overruled, 4 So. 2d 217 (1941); Robinson v. Humble Oil and Refining Co., 253 Miss. 602, 625-626, 176 So.2d 307, 318 (1965).

These authorities precluded the running of adverse possession where occupancy is by permission of the owner or where the possession is not exclusive.

As to the first of these postures where the statute does not run, the record establishes that whatever possession appellee J. B. Eady, and those claiming with or under him had of the land in dispute, it was with the permission and consent of the record owner, the appellant. When appellee J. B. Eady and his wife...