Lewis v. Ladner

• Decision Date: 08 February 1937
• Docket Number: 32141
• Citation: 177 Miss. 473,168 So. 281,172 So. 312
• Court: Mississippi Supreme Court
• Parties: LEWIS et al. v. LADNER et al

168 So. 281

172 So. 312, 177 Miss. 473

LEWIS et al. v. LADNER et al

No. 32141

Supreme Court of Mississippi

February 8, 1937

Division A

May 25 1936

APPEAL from the chancery court of Pearl River county HON. BEN STEVENS, Chancellor.

Bill by Mrs. Belle Ladner and others against Ed Lewis and others. From the decree, the defendants appeal. Reversed and bill dismissed.

On suggestion of error. Suggestion of error overruled.

Reversed, and bill dismissed. Suggestion of error overruled.

Davis &amp Davis, of Purvis, and T. J. Wills, of Hattiesburg, for appellant, Edward Hines Yellow Pine Trustees.

The court found that Lemuel Ladner acquired the title by adverse possession. No other person claimed to be in possession of the, lands as against the owner. The character of the control exercised by Lemuel Ladner and the state of his mind and his purpose in the use and occupancy of the land is the controlling factor in determining whether or not he was in the actual, exclusive, hostile possession of the land and claimed the same against the world so as to set the statute in motion. Section 2287, Code of 1930.

The burden was on the complainant, Mrs. Belle Ladner, to prove that the defendant Lemuel Ladner was in the actual adverse possession of the land in question, claiming to be the owner thereof, uninterruptedly continuously for ten years, in order for title to have ripened in him.

Davis v. Bowman, 55 Miss. 671; Cohn v. Pearl River Lbr Co,, 80 Miss. 649; Dedeaux v. Delisle Lbr. Co., 112 Miss. 325; Lovejoy v. McKivven, 113 Miss. 369.

The fact that Lemuel Ladner was represented, in the suit filed against him in the federal court, by able counsel, and settled the suit on the advice of his counsel, admitting that his title had not ripened by adverse possession, is very strong corroborative evidence to his direct testimony, given on the trial of this case in the lower court, that he did not claim the lands until 1928. This fact, when taken in connection with his direct testimony, is conclusive that he did not claim to be the owner of the land until 1928. We know of no law that requires a person, against his will, to claim to be the owner of the land of another, even though he may have it fenced and be using it for his convenience.

2 C. J. 125, par. 211; Adams v. Guice, 30 Miss. 397; Green v. Mizelle, 54 Miss. 220; Rothchilds v. Hatch, 54 Miss. 554; Davis v. Bowman, 55 Miss. 671; Dean v. Tucker, 58 Miss. 487; Wilmot v. & M. V. R. R. Co 76 Miss. 374; McConn v. Young, 85 Miss. 277.

Homestead right does not attach to the wife until the title in the homestead vests in the husband.

Steward v. Kennedy, 145 Miss. 728, 110 So. 847.

The decree in the United States District Court adjudicated that the occupancy of Lemuel Ladner had not ripened a title by adverse possession and that no title had vested in him. The decree cancelled whatever claim to the lands that he might have. The decree imports verity. It cannot be collaterally attacked. Lemuel Ladner is bound thereby to the extent that it holds that no title had vested in him and that his claim to any interest in the land was cancelled thereby.

G. & S. I. R. R. Co. v. Riley Mercantile Co., 139 Miss. 158, 104 So. 81.

While appellants deny that any homestead rights of the appellee in this case were involved in the suit in the federal court, still, if this court should hold that the homestead rights of Lemuel Ladner were involved in that suit, the decree of the Federal Court is nevertheless res adjudicata as to the rights of Lemuel Ladner and the appellee in this case.

Mrs. Belle Ladner could have no interest in the sense of a vested right in the homestead of her husband. She had the right to veto a conveyance of the exempt homestead. The veto power could not vest until the title to the asserted homestead was acquired.

Section 1778, Code of 1930; 29 C. J. 818, par. 84.

Parker & Shivers, and J. B. Mayfield, all of Poplarville, for appellants, Goodyear Yellow Pine Company and Lemuel Ladner.

It is the contention of appellants that Lemuel Ladner never acquired title to the lands involved by adverse possession.

Section 2287, Code of 1930; Leavensworth v. Reeves, 106 Miss. 722, 64 So. 660.

Where a natural barrier is used as a part of an inclosure, a large part of it, it is necessary for the claimant to bring home to the owner the fact that he claims to be holding the owner's land adversely, and he must bring notice to the owner that this natural barrier is being used to enclose the land and to keep out other persons desiring access thereto.

Dowdle v. Wheeler, 76 Ark. 529, 89 S.W. 1002, 113 A. S. R. 106; 2 C. J., sec. 16, page 63, and sec. 64, page 80, and sections 157 and 158, pages 107 and 108, and sec. 199, page 120.

Where the occupant expressly disclaims title in himself, he cannot, of course, acquire title by adverse possession unless after such disclaimer, he subsequently sets up a claim of title and holds adversely for the statutory period, which he may do.

Ridley v. Walter, 153 A.D. 65, 137 N.Y. 1050; 2 C. J., sec. 518, page 240, and sec. 585, page 262.

The burden of proving adverse possession is in all cases upon him who sets it up and relies on it.

Trotter v. Cassiday, 13 Am. Dec. 186; Dead River Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Claughton v. Claughton, 70 Miss. 384, 12 So. 340.

As to the contention of appellee that she was a necessary party to the federal court suit, that the settlement made therein and the decree entered therein was a fraud on her rights and as to her was, and is void, is not res adjudicata and she is, therefore, not bound either by the settlement, or by the decree entered, we assert that she was not a necessary party to the suit.

Stuart v. Kennedy & Co., 145 Miss. 728, 110 So. 847; G. & S. I. R. Co. v. Singleterry, 78 Miss. 772, 29 So. 755.

Lemuel Ladner, the husband, had the right to attempt to establish his title, either equitable or legal, defensively, or affirmatively. He also had the right to settle his law suit in the exercise of his judgment, whether good or bad. The wife was not a necessary party and as to her and as to him the decree entered and settlement made was res adjudicata, was binding and is still binding on both.

U. B. Parker, of Wiggins, for appellees.

The chancellor in the court below, who had all the Witnesses before him and who heard all the facts, has found that Lemuel Ladner acquired title to this land before the suit was filed in the Federal Court in 1931, and, further, that this was a part of his homestead.

In 1920 Lemuel Ladner fenced up the land involved in this law suit and began to cut trees from it, and to box the timber on it, and to put his cattle, mules and horses in it, and leased or let it to Mr. Ed Shivers for pasture purposes, and used it in every way of which it was susceptible, in connection with his homestead, and in 1925 when Mr. Fornea, the agent of appellant, came there and made inquiry about the matter, Lemuel Ladner refused to sign a release. Later, he refused to sign a release, and in 1931 when the suit was filed against him in the he filed an answer and set up his claim by Federal Court, adverse possession, and the answer in every way recites facts upon which a court could have adjudicated his title in and to the land under adverse possession. But, they say Lemuel Ladner now comes into court and says he did not claim it as his own. I pray this court to say whether or not the chancellor was right or wrong when he decided which of the statements made by Lemuel Ladner was correct. The chancellor decided that Lemuel Ladner and his two respectable attorneys who filed the answer in the Federal Court stated the truth, and that that evidence on his part was of more value to the court in reaching a righteous verdict than his testimony after he had given a deed for three forties of this land and was attempting to defeat appellee out of her rights in the matter.

Stuart v. Kennedy & Co., 145 Miss. 728, 110 So. 847.

Our contention that the appellee was not bound by the decree in the Federal Court is sustained and set at rest by the ruling of this court in the very recent case of Farmers and Merchants Bank v. Rushing, 167 So. 784, 175 Miss. 826.

G. & S. I. R. R. Co. v. Singleterry, 78 Miss. 772, 29 So. 754; Stewart v. Kennedy & Co., 145 Miss 728, 110 So. 847.

When the husband appears alone and defends a suit, his right to the homestead is no more concluded by the decision than by his separate execution of a deed or mortgage. The legal proceedings to be conclusive against either must embrace both.

The fact that Lemuel Ladner conveyed to his wife the fifty-two acres of land in this deed did not preclude her from continuing in the possession of the land involved in this suit and using same as it had been used by her and Lemuel Ladner previous to the date of this deed, as a part of their homestead. The execution of said deed and acceptance thereof did not weaken or invalidate her claim to the land involved in this suit as a homestead any more than did the decree rendered in the Federal Court in a suit to which she was not made a party.

Wyatt v. Wyatt, 81 Miss. 219; Kirby v. Kent, 180 So. 569; Lumber Co. v. Cuevas, 104 Miss. 32, 61 So. 4.

Appellee's possession of the land involved in this suit, and having it embraced within a substantial fence, or enclosure, claiming the same by adverse possession for more than thirteen years, was sufficient to support the action for damages to, and for the interference with her lawful enjoyment thereof, regardless of the fact that the deed from Lemuel Ladner to appellee did not specifically include the land.

Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298.

We say that there was not one scintilla of relevant testimony against the...