May v. Culpepper

• Decision Date: 15 February 1937
• Docket Number: 32593
• Citation: 172 So. 336,177 Miss. 811
• Court: Mississippi Supreme Court
• Parties: MAY v. CULPEPPER

172 So. 336

177 Miss. 811

MAY v. CULPEPPER

No. 32593

Supreme Court of Mississippi

February 15, 1937

Division B

1. ADVERSE POSSESSION.

In ejectment, instruction that if defendant's occupancy and claim of title had been questioned or disputed defendant could not have verdict held erroneous as injecting element not required by adverse possession statute (Code 1930, sec 2287).

2 TRIAL.

Substantially contradictory or irreconcilable instructions may not be read together, despite general rule that conflicting instructions should be construed as complementing each other, especially where evidence is seriously conflicting or one instruction is relied on to nullify positive error in another.

3 TRIAL.

In ejectment, under conflicting evidence, erroneous instruction that defendant's adverse possession must be undisputed held not cured by instruction that defendant should have verdict regardless of other facts in case if he had actual uninterrupted, hostile, and adverse possession (Code 1930, sec. 2287).

HON. D. M. ANDERSON, Judge.

APPEAL from the circuit court of Scott county HON. D. M. ANDERSON, Judge.

Action of ejectment by W. T. Culpepper against Rube May. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Colbert Dudley, of Forest, for appellant.

It is well settled law in the state of Mississippi that one who has occupied land under the belief that it lies within the call of his deed, acquires title by adverse possession for the statutory period.

Louis Cohn & Bros. v. Peyton, 110 So. 509, 145 Miss. 261; Evans v. Harrison, 93 So. 737, 130 Miss. 157; Schuler v. McGee, 90 So. 713, 127 Miss. 873; Greer v. Pickett, 90 So. 449, 127 Miss. 739; Crowder v. Neal, 57 So. 1, 100 Miss. 730; Jones v. Gaddis, 7 So. 489, 67 Miss. 761; Metcalfe v. McCutchen, 60 Miss. 145.

The court at the request of appellee granted the following instruction: "The court instructs the jury for the plaintiff that if the occupancy and claim of title asserted in this case by the defendant has been questioned or disputed, then the defendant cannot be given a verdict." The giving of this instruction is assigned as reversible error by the appellant.

Where an instruction incorrectly states the law and is conflicting and contradictory to the other instructions and cannot be reconciled with them, the case should be reversed and remanded for a new trial.

Columbus & G. Ry. v. Phillips, 160 Miss. 390; Jefferson Standard Life Ins. Co. v. Jef coats, 143 So. 842; Yazoo & M. V. R. Co. v. Cornelius, 131 Miss. 37; Hinds v. Lockhart, 105 So. 449; Solomon v. City Compress Co., 69 Miss. 319.

The instruction is clearly an incorrect statement of the law of adverse possession.

2 C. J. 94, sec. 112; 64 C. J. 637.

Taking the instructions as a whole it is impossible to reconcile this erroneous instruction.

Frank M. Mize and Joe Sid Mize, both of Forest, for appellee.

The proof shows that the appellee long prior to that time had given a road on the north edge of it to his grandmother so that she could go to and from her church, and that part of the strip east of the road was in dispute and especially from 1929 until the filing of this law suit, and the statutory period of uninterrupted, hostile, open, notorious, exclusive and continuous occupancy has not been completed at any time on any part of the parcel of land in dispute. There are so many decisions of this court on this question, we feel it unnecessary to refer this court to any authorities. However, we respectfully mention the following.

McGehee v. McGehee, 37 Miss. 151; Kennedy v. Sanders, 90 Miss. 542; Leavenworth v. Reeves, 64 So. 660; Dedeaux v. Bayou Lbr. Co., 112 Miss. 325; Staten v. Henry, 130 Miss. 372; Delk v. Hubbard, 121 So. 845; Cook v. Mason, 134 So. 139.

This court has said on numerous occasions and it is well settled that all of the instructions given in any case are taken together as a whole and constitute the law of the case.

Friedman v. Allen, 118 So. 828, 152 Miss. 377; Bass v. Bennett, 119 So. 827, 151 Miss. 852; Landrum v. Ellington, 128 So. 444, 152 Miss. 569; Carlisle v. City of Laurel, 124 So. 786, 156 Miss. 410; Hammond v. Morris, 126 So. 908, 156 Miss. 802; Westerfield v. Meeks, 120 So. 458, 153 Miss. 228.

OPINION

Griffith, J.

This is an action of ejectment, wherein appellant, the defendant in the circuit court, relied upon adverse possession as a defense. The evidence upon that issue was in conflict to the extent that a peremptory charge for either party would not have been proper and was not requested.

At the request of the plaintiff, appellee here, there was granted by the court the following instruction: "The court instructs the jury that if the occupancy and claim of title asserted by the defendant has been questioned or disputed then the defendant cannot be given a verdict." Under the laws of some few states, it is required that the claim of the right of possession must have been undisputed throughout the statutory period; but this element is not a feature of our ten years' adverse possession statute, section 2287, Code 1930,...