Holliman v. Charles L. Cherry & Associates, Inc., 07-CA-58867

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: DAN M. LEE; ROY NOBLE LEE
• Citation: 569 So.2d 1139
• Parties: Gene D. HOLLIMAN and Patricia H. Holliman v. CHARLES L. CHERRY & ASSOCIATES, INC., et al.
• Docket Number: No. 07-CA-58867,07-CA-58867
• Decision Date: 11 April 1990

Page 1139

569 So.2d 1139 Gene D. HOLLIMAN and Patricia H. Holliman
v.
CHARLES L. CHERRY & ASSOCIATES, INC., et al. No. 07-CA-58867. Supreme Court of Mississippi. April 11, 1990.
Rehearing Denied Nov. 7, 1990.

Page 1140

David B. Gross, Linda Thompson Greaves, Jackson, for appellants.

Michael P. Mills, Navarro Mills & Davis, Aberdeen, for appellees.

Before DAN M. LEE, P.J., and SULLIVAN and BLASS, JJ.

DAN M. LEE, Presiding Justice, for the Court:

The operator of a dually completed oil and gas well could not determine the ownership of funds attributable to a wild tract of land of approximately six acres that was included in the oil and gas producing units. The operator, Charles L. Cherry and Associates, Inc. (plaintiff below, but not a party to this appeal), brought this interpleader suit naming two (2) primary sets of claimants, the Hollimans, Gene D. Holliman and wife Patricia Hankins Holliman (one set of defendants below and appellants here), and the Dales, Clarence N. Dale, Jr., his wife, Barbara C. Dale, Ellis S. Dale, his wife, Wilsye Anne Dale and Rebie S. Dale, Clarence's and Ellis' mother (the other primary set of defendants below, and appellees here), as parties defendant.

The Hollimans and the Dales engaged in a great deal of pre-trial pleading and discovery which resulted in an agreed order limiting the trial of the case to the issues between the Hollimans and the Dales. Issues between the successful set of claimants to the property and funds attributable thereto and the plaintiff interpleader, Cherry, were to be decided at a subsequent trial.

The Hollimans asked for a reformation of the description in the deed under which they claimed title to describe specifically the tract in litigation and alternatively argued

Page 1141

they had acquired title by over ten years of adverse possession.

The Dales claimed the lands had been in their family chain of title since 1910, and they subsequently inherited the lands from Clarence N. Dale, Sr., who died intestate in 1975.

The entire record made on the trial of the case consists of the testimony of one witness, Gene D. Holliman, and copies of three instruments offered as exhibits to his testimony.

At the conclusion of Mr. Holliman's testimony, the Dales moved for a directed verdict against the Hollimans, and the chancery judge sustained the motion. A final decree was entered dismissing the Hollimans' claims to the six-acre tract and vesting title to the tract in the Dales. A copy of the decree was ordered to be entered in the land records of Monroe County, Mississippi, as a muniment of title into the Dales. From that decision and decree the Hollimans have appealed and present the following assignment of error:

Whether the judgment of the trial court should be reversed when the court found for a claimant/defendant in an interpleader suit who on the trial of the case put on no evidence of any kind, whose allegations in the pleadings were all denied, and where the opposing claimant/defendant testified as to negotiations for the purchase of the tract in question which caused him to believe that he acquired title to the tract by deed and who also testified to seventeen years of adverse possession consistent with the type possession permitted by the wild nature and characteristics of the tract.

Stated differently, one party puts on no evidence. The opposing party puts on substantial evidence. Should the party putting on no evidence be permitted to win?

Appellee Dales note that the Hollimans frame their issues on criticism of the lack of proof propounded by the Dales in the trial of this action. The Dales assert that in reality, the Hollimans admit in their pleadings that the appellees, Clarence N. Dale, Jr.; Ellis S. Dale; and Mrs. Rebie S. Dale constitute all of the lawful heirs of Clarence N. Dale, Sr. Since the Dales claim their title by intestate succession as admitted by the Hollimans the burden was on the Hollimans to cast out the Dales by proof of adverse possession or by reforming their deed. Therefore, the Dales claim and we agree that the issue herenow on appeal can be more succinctly stated as follows:

Did the Hollimans put on sufficient proof to establish title to the Monroe County lands by adverse possession or by reformation of deed?

STATEMENT OF THE FACTS

This appeal involves ownership of a tract of land of six acres, more or less, lying north and west of the Buttahatchie River, which is the boundary between Monroe and Lowndes Counties, Mississippi. This river meanders along the southern boundary of Monroe County without regard to governmental section lines or other man-made points of reference. The tract in controversy lies in the northwest corner of the Southwest Quarter of Section 7, Township 16 South, Range 17 West, and is situated in Monroe County, Mississippi. The major portion of the Southwest Quarter of said Section 7, however, comprising 154 acres, more or less, lies in Lowndes County, Mississippi. There is also a small tract of 0.90 acres, more or less, lying in the old Buttahatchie River bed and adjacent to the six-acre tract in controversy, which was originally a part of this litigation but which is not a part of this appeal.

All of the Southwest Quarter of Section 7, T16S-R17W is covered by a dually completed oil and gas well known as the Charles L. Cherry and Associates--G.D. Holliman 7-11, Well No. 1 permitted in Monroe and Lowndes Counties.

All claimants to the conflict acreage base their claims on a common source. A patent covering all of the SW/4 of Sec. 7 was issued by the United States of America to Silas Kolb on May 19, 1824.

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Through mesne conveyances, J.A. Dale became record owner of the W/2 of the SW/4 of Sec. 7 on November 21, 1910. S.M. Dale and C.N. Dale, Sr. acquired all of the W/2 of the SW/4 on December 14, 1935. C.N. Dale, Sr. acquired the full interest in the W/2 of the SW/4 on December 27, 1944.

C.N. Dale, Sr. held record title to all of the W/2 of the SW/4, including both the Monroe and Lowndes County portions, until the mid 1960's. He conveyed by warranty deed all of the W/2 of the SW/4 to his two sons, Clarence N. Dale, Jr. and Ellis S. Dale, and their wives on March 3, 1966. This warranty deed made no distinction between those lands lying north and west of the River and that part of the W/2 of the SW/4 lying south of the River.

By Correction Warranty Deeds dated March 25, 1966 and March 17, 1967, C.N. Dale, Sr. conveyed only that part of the W/2 of the SW/4 lying south of the Buttahatchie River to his sons and their spouses.

Gene Holliman had apparently been renting at least the lands lying south of the Buttahatchie River from C.N. Dale, Sr. for several years and in 1967, entered into negotiations with C.N. Dale, Sr. to purchase the land. The Hollimans paid the agreed purchase price to C.N. Dale, Sr., who several months later brought them a deed that had been executed--not by Dale, Sr., but--by C.N. Dale, Jr. and Ellis S. Dale and their wives. Evidently, the Hollimans were not aware that the record title owners at the time they were negotiating with Dale, Sr. were actually his two sons and their wives.

Nevertheless, the warranty deed delivered to the Hollimans, as stated above, executed by Clarence N. Dale, Jr. and Ellis S. Dale, and their spouses, was dated March 21, 1967, and conveyed all of the W/2 of the SW/4 lying south of the Buttahatchie River to Gene Douglas Holliman and Patricia H. Holliman.

The ownership of the six acres was not disputed during the lifetime of C.N. Dale, Sr. On June 12, 1975, Dale, Sr. died leaving as his sole heirs at law his widow, Mrs. Rebie S. Dale, and two sons, Clarence N. Dale, Jr., and Ellis S. Dale. A few short years after Dale, Sr.'s death, the dispute began to reach fruition. On November 10, 1978, the Hollimans executed an oil, gas and mineral lease between themselves, as lessor, and Edward A. Benefield, as lessee. The lease covered "[a]ll that part of the SW/4 that lies south of Buttahatchie River, less Bethlehem Church tract. Containing 150 acres, more or less, being subject to survey."

After the discovery of oil and gas in and around the latter part of 1981 or the early part of 1982, the disputed ± 6 acres were placed into production units and the feud began as to its ownership. As previously stated, the Hollimans argue that Dale, Sr. intended to convey the ± 6 acres to them (Dale, Sr., did not own the lands conveyed in the 1967 deed, having previously conveyed it to his two sons and their spouses on March 3, 1966. He apparently negotiated the deal for the benefit of his two sons ) and therefore it was a mistake to limit the description to only that acreage located south of the River.

Alternatively, the Hollimans argue they have acquired the title by adverse possession having possessed the land for more than the required 10 year prescriptive period. The Dale heirs counter that they inherited the lands from C.N. Dale, Sr., who died intestate in 1975.

Also, as previously mentioned, the entire record made on the trial of the case consists of the testimony of one witness, Gene D. Holliman, and copies of three (3) instruments offered as exhibits to his testimony. Holliman testified only to a limited extent as to the facts associated with his understanding, which led him to believe that he owned the tract in litigation. Early in the trial, Chancellor Bost ruled that the language of the deed in which the Hollimans bought land from the Dales was clear and unambiguous. Therefore, the deed spoke for itself and Holliman was not allowed to testify as to Dale, Sr.'s intent during negotiations, this being parol evidence and inadmissible.

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