Gilchrist-Fordney Co. v. Thigpen

• Decision Date: 16 April 1917
• Docket Number: 19061
• Court: Mississippi Supreme Court
• Parties: GILCHRIST-FORDNEY CO. v. THIGPEN

74 So. 823

114 Miss. 182

GILCHRIST-FORDNEY CO. v. THIGPEN

No. 19061

Supreme Court of Mississippi

April 16, 1917

Division B

APPEAL from the chancery court of Jasper county, HON. G. C. TANN Chancellor.

Suit by Gilchrist-Fordney Company against S. F. Thigpen and others. From a judgment for defendants, complainant appeals.

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

Case affirmed.

Deavours Hilbun & Deavours, for appellant.

Byrd &amp Byrd, for appellee.

OPINION

ETHRIDGE, J.

Appellant filed its bill in the chancery court of the second district of Jones county against S. F. Thigpen and S. L. Williams, praying for an injunction against the cutting of timber by the appellees on the East half of the Northeast quarter of section 10, township 1 N., range 10 E., and for a cancellation of the claims of appellee as to timber growing on said land. The appellant claims title through three different sources: First, the heirs of Benjamin Thompson, deceased; second through deed from C. Thigpen & Co.; and, third, by adverse possession.

The lands in question were patented from the United States to John Crosby in 1858, and afterwards sold on execution to Benjamin Thompson. In 1876 the lands were sold to the state for tax, and on February 15, 1886, the state sold the land to Stafford Peyton, from whom, by succession of transfers, title passed to C. Thigpen & Co., a mercantile firm composed of C. Thigpen, W. M. Sprinkle, and J. W. Gaston, from which parties the title in this case becomes the common source of title, there having been adverse possession under the tax title for a period of ten years prior to the sale from Thigpen & Co. to either of the parties in this cause.

On the 3d day of February, 1900, C. Thigpen attempted to convey the timber on the lands for C. Thigpen & Co. to G. J. Pope, trustee, who conveyed it to the Kingston Lumber Company, which company conveyed it to the appellant. The deed from C. Thigpen & Co., "per C. Thigpen," described the land on which the timber grew which was attempted to be conveyed as follows: "Fifty acres on the Fast half of the Northeast quarter of section 10, township 1, range 10, in Jasper county, Miss." In the year 1901 C. Thigpen, W. M. Sprinkle, and J. W. Gaston conveyed the East half of the Northeast quarter, above referred to, to B. F. Crosby, who went into possession of the tract of land so conveyed, and remained in possession until the conveyance to E. L. Ward in 1913. Ward subsequently conveyed to S. F. Thigpen, the appellee, and Thigpen conveyed an interest in the land to the appellee Willams.

In 1906 B. F. Crosby conveyed the timber on the lands to the Gulf States Investment Company, a corporation who conveyed to another party; and this party cut a portion of the timber therefrom. Under the contract of 1906 for the sale of said timber, it was provided that the timber must be removed within a period of five years from April 5, 1906. A portion of the timber was not so removed because the appellant claimed title thereto from the deed to it, through chain of title from C. Thigpen. B. F. Crosby, while upon the land, cultivated a portion of it, used the timber for fencing, and cleared some of the lands, and exercised general ownership over it. There was proof in the record that Crosby had knowledge at the time he bought, that the timber...