Freeman v. Freeman

• Decision Date: 12 October 1914
• Docket Number: 16482
• Citation: 107 Miss. 750,66 So. 202
• Court: Mississippi Supreme Court
• Parties: FREEMAN v. FREEMAN

66 So. 202

107 Miss. 750

FREEMAN v. FREEMAN

No. 16482

Supreme Court of Mississippi

October 12, 1914

APPEAL from the chancery court of Perry county. HON. W. H. COOK Special Chancellor.

Bill for partition by H. J. Preston against G. W. P. Freeman, and others. From a decree ordering partition, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

A. T L. Watkins and J. H. Davis, for appellant.

It is manifest that the learned special chancellor assumed that Wm Freeman owned the land and treated the parties as co-tenants and as claiming from a common source, which is not shown if appellee had been in court with a stranger, armed with the muniments of title with which appellant is armed, he would stand no sort of show to recover. He must recover, if at all, on the strength of his ancestor's title and not on a supposed weakness of appellant's title, as he is manifestly trying to. This is a presumption of law attending all causes, throughout the entire proceeding, in any and all courts. It is so held as far back as 50 Mississippi, page 229; see, also, 53 So. 773, second syllabus, page 816, and many others.

If the heirs of Wm. Freeman could not recover in ejectment with a stranger, armed with the muniments of title with which appellant is armed, they should assuredly fail here, and must fail. See 42 So. 186; 41 So. 538 and 724; 44 So. 424, and many others. It was manifest error to attempt to establish Wm. Freeman's title by showing the burning of the courthouse of Perry county away back in the year 1875 or 1876, without some precedent proof that Wm. Freeman had had a deed. See chapter 91, Mississippi Code 1906. At all events he should have set out his claim of title in his pleadings, at least furnished competent proof, in the absence of a record title as against one who held a record title, as did appellant, and the appellant's answer put him squarely on notice of his claim, if the official records of the county had not.

We respectfully submit, that there is not a sentence, line, or word of competent evidence that Wm. Freeman owned and possessed the land at the date of his death; a burden that must be met before he can hope to recover, against the only legal title in existence, so far as this record shows, and we submit that appellant should recover on the first count of his answer.

It appears without dispute or contradiction, that appellant has held the land, openly and notoriously, adversely and hostile, to all the world, beginning at least two years prior to the death of Wm. Freeman, and continuing to date; and if the holding began in the lifetime of Wm. Freeman, and was adverse to him, at his death his children began where he left off, that is, it took only ten years to perfect a title by adverse possession, in the absence of infants or persons of unsound mind, neither of which appear in this cause.

D. K. McDonald, for appellee.

In discussing the testimony and applying the law in this case, we will first call the court's attention to the contention of the defendant, G. W. P. Freeman, and appellant in this honorable court. He claims that his father gave him this land, not by any conveyance evidenced by writing, nor by acknowledging before witnesses in any manner recognized by the law, but when he was asked when he delivered the patent over to him and under what circumstances, he could not tell.

The defendant was incompetent as to the alleged gift from the deceased father on account of the statute. We will consider further his testimony. He doesn't seem to be content with his title from his father, notwithstanding his father lived upon it some twenty years and then he had claimed it for about twenty some odd years. He goes out and purchases, without consideration, seemingly, the title of the McKenzie heirs, the man that his father claimed through at an administrator's sale. This does not look very much like he was relying very much upon his gift from his father. The law does not permit one tenant in common to buy in outstanding titles or interest and thereby enjoy the benefits thereof, but assigns it to the benefit of the co-tenancy. These quitclaim deeds if serving any good purpose, in considering this land or the title thereto inures to the cotenancy and not to any individual cotenant. See 38 Cyc. page 40; 90 Miss. 762; So. 987; 81 Miss. 219, 32 So. 317; 68 Miss. 714, 10 So. 37; 65 Miss. 447, 4 So. 345; 7 Am. St. Rep. 673.

We now pass to the second plea or answer of the defendant, and can't see where he can expect the court to give him title by adverse possession. On the other hand, I feel that we have made a very strong case of title by adverse possession to the land that he bought at execution sale. He seems to have permitted his sister...