Hill v. Woodward

• Decision Date: 18 December 1911
• Docket Number: 14,599
• Court: Mississippi Supreme Court
• Parties: J. W. HILL ET AL. v. E. E. WOODWARD ET AL

57 So. 294

100 Miss. 879

J. W. HILL ET AL. v. E. E. WOODWARD ET AL

No. 14,599

Supreme Court of Mississippi

December 18, 1911

APPEAL fro the chancery court of Calhoun county, HON. I. T. BLOUNT Chancellor.

Suit by E. E. Woodward et al. against J. W. Hill et al. for partition.

From a decree granting relief, defendants appeal.

In 1871 Aulston Woodward and T. T. Enochs purchased, by joint deed from J. W. Drake, certain lands in Calhoun county, Miss., the subject of this controversy, and thereby became tenants in common of said land. At that time the land was of little value, being situated in a river swamp, and being what is known as wild or uncleared land, and being entirely without any improvements at all. Taxes were paid on the land until about the year 1885; the land being assessed to Enochs and Woodward until 1881, and after that time to Enochs and estate of A. Woodward, the latter having died in the year 1881. These taxes were paid by Enochs, and it is claimed by the appellants that there was a verbal agreement between the two about the year 1875 or 1876, that Enochs was to take the property as his own, in settlement of taxes and other claims against it; but no writing to this effect was drawn up, and the assessment was never changed. In the year 1885 Woodward's administrator (his son J. H. Woodward) having refused to contribute towards the taxes, Enochs advised him that he was going to let the land sell for taxes and buy it in, and thus obtain title to the land in himself. Accordingly in 1886 the land was sold for the taxes of 1885, and Enochs bought it in. He obtained a tax deed from the deputy sheriff and tax collector, but the same was never placed of record. This tax sale was made five years after the death of Aulston Woodward. Between the date of the tax sale and the death of Enochs, in August, 1899, the taxes were paid on the land by Enochs, the assessment sometimes appearing as Enochs and Woodward, and other years in the name of T. T. Enochs. Enochs devised the land, on his death, to his daughter, Mrs. Alice Shell, who paid taxes on it until she sold it in 1900 to J W. Hill, through whom all the other appellants derived their claim of title. The appellees are heirs at law of Aulston Woodward, and claim the land in controversy as tenants in common with the appellants, and on June 11, 1908, filed their bill in chancery for a partition and sale of the premises and for an accounting. The Southern Railway Company is made a party defendant to the bill, as this company had purchased a right of way through the property and constructed its line of railway. The town of Vardaman had been built adjacent to the railroad on the property here in controversy, and lots were sold to a large number of purchasers, who were also made parties defendant.

The defendants offer three defenses to the suit: First, That Aulston Woodward before his death conveyed the property by verbal agreement to T. T. Enochs, his cotenant, in liquidation of certain indebtedness due Enochs by Woodward. Second. That in recognition of his title to said property Enochs had paid taxes on same, and in accordance with the custom then prevalent in that county, in order to perfect his title, had allowed the property to sell for taxes and bought it in his own name, and thus held it adversely to other claimants, and his title had ripened by adverse claim, many years before the bringing of this suit. Third. That the complainants were estopped from setting up any claim of interest in this land, because said land was not included in a partition suit of the lands of Woodward heirs, and because J. H. Woodward, who was the agent and attorney in fact of the Woodward heirs, had made no objection to the tax sale and purchase of the land thereat by Enochs, or to the subsequent sale of the premises at public auction, when lots were bought by the various defendants. The Southern Railway Company which was made a party defendant by the amended bill, claims that a partition of the property should not apply as against said railroad, because of public policy. This feature of the case is discussed fully in the opinion of the court.

The chancellor found for the complainants. The decree contained the following special findings of fact: (1) That complainants are not barred by any statute of limitation; (2) that complainants are not estopped from asserting their claim to an interest in the land; (3) that Aulston Woodward was a tenant in common with T. T. Enochs at the time of the death of the former; (4) that Aulston Woodward's undivided half interest in the land descended to complainants; (5) that complainants have been tenants in common with Enochs until the death of the latter in 1899; (6) that no statute of limitations be-began to run against the complainants during the lifetime of T. T. Enochs; (7) that there was no adverse possession or holding of this land by T. T. Enochs during his lifetime, against complainants; (8) that complainants are tenants in common with defendants; (9) that they are entitled to the relief prayed. The court further ordered that the clerk be appointed a commissioner to sell the land in controversy, including the right of way purchased by the railway company, and to report back to the board on a subsequent date, and to take and state an accounting. The chancellor granted an appeal from this decree.

Affirmed.

A. T. Stovall, for appellant.

Weston et al. v. Foster et al., 7 Metcalf (Mass.) 297. You couldn't partite the right the railroad had to pass over the land, and you couldn't sell it and divide the proceeds because it would be against public policy to segregate and cut out one mile of the railroad, and sell it to the highest and best bidder; it would thwart and destroy the very purpose of the creation of the railroad to serve the public, and so that ground of demurrer was good and should have been sustained, and yet the decree that the court rendered ordered all this land sold regardless of the right the railroad company had to pass over that land. There was no reservation made in order that it might take some steps to condemn or negotiate for the right with the rest of the tenants in common, if they should be so inclined.

As to the second ground of demurrer, "the bill seeks a partition against the railroad, when it is contrary to the public policy of the state of Mississippi, to decree a sale for partition, or partition in kind, of a railroad, on the ground that any division of the property would impair its usefulness, in which the public has an interest." The mere suggestion or statement of this ground is convincing to one who is interested in the public welfare of the state. The statement of the ground is axiomatic. We know that you cannot levy on and sell a railroad company's roadbed and right of way like you can any other property. The public have an interest in the maintaining of the railroad, a going concern, especially so in this day and time, and they are asserting that interest with a good deal of vigor. They are not only interested in the rates charged to transport passengers and freight, but they are interested in the schedules, and that the train shall go, and when it shall go, and how it shall go, and the appliances it shall go equipped with, and the character of roadbed it shall go on, etc., all going to show that the public interest demands that a private individual shall do nothing, and certainly a court of equity should do nothing, to retard the railroad in its undertaking, and, in this instance, practically destroy it, if it should not be able by some combination of circumstances to buy in this quarter section of land, over which it has an easement or right to operate trains to serve the public. I say public policy annuls the decree of this court as far as this railroad company is concerned. See authorities: 21 Am. & Eng. Enc. Law (2nd Ed.), p. 1163; 30 Cyc., p. 178; 2 Elliott on Railroads (2nd Ed.), section 520; Connor v. Tenn. Central Railway Co., 109 F. 931; same case, 48 C. C. A. 730, and 54 L. R. A. 687; Pittsburgh C. C. & St. L. Ry. Co. v. Fish, 63 N.E. 454; John C. Brady et al. Exrs. v. Bradley Johnson et al., 20 L. R. A. 737, note; Gooch v. McGee, 35 Am. Rep. 558.

Haman & Bates, for appellants.

A cotenant can acquire title against his cotenant by adverse possession, coupled with notice thereof. See Hignite v. Hignite, 65 Miss. 447, 4 So. 345; Bently v. Callaghand, 79 Miss. 302, 30 So. 709, and cases there cited; Dobbins v. Dobbins, 10 L. R. A. N. S. 185, 141 N.C. 210, 53 S.E. 870, and notes with cases cited; 1 Cyc. 1071, 44b, and notes, or by actual ouster and adverse possession; Eastman, Gardner & Co. v. Hinton, 86 Miss. 604, 38 So. 779. The rule is well announced in Eastman, Gardner & Co. v. Hinton, where the court says: "The facts of this case do not bring it within the scope of the rule which prevents one cotenant from acquiring a title in himself to the common estate without either an actual ouster, or actual or constructive notice of the assertion of the hostile claim."

That expression while dicta in that case probably is supported by the decision and we think is an announcement of the true rule that a cotenant in order to establish title in himself to the common estate must prove it, either on actual ouster, or actual or constructive notice of the assertion of hostile claim.

Limitations begin to run and the dispossessed tenant's right of action accrues when notified of unequivocal intent on part of his cotenant to oust him. Bently v. Callaghan, 30 So. 709; Alsobrook v. Eggleston, 69 Miss. 833, and other cases cited therein. Or that his claim and possession is hostile. 1 Cyc., 1073c; Jonas v. Flannigan, 69 Miss. 577.

Physical violence is not necessary to effect an ouster. Bently v Callaghan, Ib.; 1 Cyc....