Ellis v. Knight, 41596

• Decision Date: 21 November 1960
• Docket Number: No. 41596,41596
• Citation: 239 Miss. 836,124 So.2d 694
• Parties: Homer ELLIS et ux. v. J. P. KNIGHT.
• Court: Mississippi Supreme Court

Page 694

124 So.2d 694

239 Miss. 836

Homer ELLIS et ux. v. J. P. KNIGHT.

No. 41596.

Supreme Court of Mississippi.

Nov. 21, 1960.

Wm. V. Murry, Hattiesburg, for appellant.

C. M. Morgan, Jr., Cephus Anderson, Hattiesburg, for appellee.

GILLESPIE, Justice.

Appellee filed an unlawful entry and detainer complaint in county court under Section 1049, Mississippi Code of 1942. Upon trial of the issue judgment was entered for plaintiff for possession of the lands. Defendants appealed to circuit court with supersedeas where the judgment of the county court was affirmed and a judgment entered against defendant and the sureties on their supersedeas bond for $150 'rent on said land' at the rate of $40 per month, and $180 damages 'not embraced in the use and occupation of the said land' pending appeal from county court. The defendant appeals to this Court.

Appellant assigns several errors, but only two deserve comment.

It is contended by appellant that appellee did not bring his action within one year from the date the cause of action accrued and that the action was barred by the terms of the statute, Code Section 1049. Appellants deeded the land to appellee on February 21, 1956, but appellee never took possession. The record contains no oral proof of the existence or non-existence of any arrangements or agreements with reference to possession. Appellee introduced a court file showing appellants filed suit against appellee in chancery court on November 23, 1957, seeking a decree declaring the aforesaid deed to be a mortgage. After several amendments, a demurrer was sustained and that suit was dismissed with prejudice. It appears from the pleadings in the chancery court suit that both parties took the position that appellants retained possession of the property by permission of appellee. After the chancery suit was concluded as above stated, appellee, on March 27, 1959, gave appellants written notice to surrender possession within ten days. Possession was not surrendered to appellee and he brought this unlawful entry and detainer suit on April 23, 1959.

If the record showed that appellants were in possession of the property from the date of the deed, February 21, 1956, adversely to appellee, then appellee would not be entitled to maintain the action of unlawful entry and detainer. Such action must be brought within one year after wrongful deprivation or withholding of possession. Section 1049, Mississippi Code of 1942; Anthony v. Bank of Wiggins, 178 Miss. 361, 173 So. 454. But the defendant in such action who claims the action was barred because not brought within one year after wrongful...