McCallum v. Gavin

• Decision Date: 19 March 1928
• Docket Number: 26994
• Citation: 149 Miss. 885,116 So. 94
• Court: Mississippi Supreme Court
• Parties: MCCALLUM et al. v. GAVIN. [*]

116 So. 94

149 Miss. 885

MCCALLUM et al. v. GAVIN. ^[*]

No. 26994

Supreme Court of Mississippi

March 19, 1928

Division B

APPEAL from circuit court of Jasper county, Second district, HON. W L. CRANFORD, Judge.

Suit by John Gavin against Ella McCallum and others for unlawful entry and detainer. From a judgment for plaintiff, defendants appeal. Affirmed.

Judgment affirmed.

O. M. Oates and J. A. McFarland, for appellants.

The court erred in permitting testimony without limitation or end as to plaintiff's pretended or alleged record title by the various and different instruments constituting deeds records and assessments to show said title to the lands involved herein, over and above the repeated objections of appellants, which is contrary and adverse to the holdings and decisions of this court in case of unlawful entry and detainer. Clark v. Bourgeois, 86 Miss. 1, 38 So. 187; Pagen v. Gibbs, 88 Miss. 274, 40 So. 871.

Appellants contend that if appellee had any lawful claim to the possession of said land he should have asserted the same within one year from the time he claims to have bought the same, which said purchase was in the year 1920. The testimony and record in this case shows that appellee never begun his action for the possession of said land until Aug. 18, 1926. See sec. 3311, Hem. Code 1917.

J. Madison Travis, for appellee.

The appellants first assign as error that the court below erred in permitting testimony without limitation or end as to plaintiff's pretended or alleged record title. It will be noticed in the first place that the plaintiff in the presence of the court and the jury impanelled to try this case made the following statement to-wit: "The plaintiff desired to introduce into testimony and evidence in this case the following land deeds and conveyances for the purpose only of showing the plaintiff's right to the possession of the lands in controversy." The court, the jury and everybody knew that the conveyances were introduced to show possession and not title and for the reason that the appellants' ground of defense was that the appellee had not title to the property and thereby had no right to recover the possession of the lands in controversy. In the said two cases relied on by appellant we do not find anything that denies the rights of the introduction of record testimony to show the right of possession, but they simply hold that the court in an action of unlawful entry and detainer will not inquire into and adjudicate title but will only determine the rights of possession. It is our contention that it is a well-established practice of the courts of the land that title deeds and records are admissible to show possession when controversy as to possession turns upon title deeds or records.

In Murf v. Maupin, 113 Miss. 670, 74 So. 614, this court held: "If controversy as to possession in unlawful entry and detainer suit turned upon title deeds as showing right of possession, such deed would be admissible, not to prove title, but right of possession." See, also, Rabe v. Flyer, 10 S. & M. 440, 48 Am. Dec. 763; Fearn v. Beirne (Ala.), 29 So. 558; McMillan v. Reese (Fla.), 55 So. 388; Davis v. Drumman, 67 So. 99.

The next error assigned and complained of is that if appellee had any lawful claim to the possession of said land under the law he should have asserted the same within one year from the time he claims to have bought the same. We cannot agree with the appellants that the statute began to run from the time the appellee purchased the land but contend that the one-year statute of limitations of this unlawful entry and detainer case began to run from the expiration date of the rent contract which was Jan., 1926, and the said statute commenced to run from the said Jan., 1926, and the said suit being filed on Aug. 18, 1926, the cause of action was brought in ample time. It is our further contention that the statute did not commence to run until the time the plaintiff was turned out of the possession by force and threats of great bodily harm in Jan., 1926.

Argued orally by J. M. Travis, for appellee.

OPINION

ETHRIDGE, P.J.

John Gavin, appellee, brought a suit for unlawful entry and detainer against the appellants for the possession, use, and occupation of certain...