Native Lumber Co. v. Elmer

• Decision Date: 27 May 1918
• Docket Number: 20193
• Citation: 117 Miss. 720,78 So. 703
• Court: Mississippi Supreme Court
• Parties: NATIVE LUMBER CO. ET AL. v. ELMER

78 So. 703

117 Miss. 720

NATIVE LUMBER CO. ET AL. v. ELMER

No. 20193

Supreme Court of Mississippi

May 27, 1918

Division A

APPEAL from the chancery court of Harrison county, HON. W. M. DENNY JR., Chancellor.

Suit by F. W. Elmer and others against Native Lumber Company and others. From a decree for complainants, respondents appeal.

The facts are fully stated in the opinion of the court.

Decree reversed, and bill dismissed.

White &amp Ford for appellants.

The principles of law dealing with acquisition of title to real estate by adverse possession are well established and generally recognized. There must be actual adverse possession for the statutory period of ten years, under a claim of right, either by occupancy of the entire tract, or, by occupancy of a part under color of title, to the whole tract. Actual residence upon the land is not required, but if that test were applied to this case, the proof does not fail to supply the requirement. It cannot be doubted that Richard Deveraux and at least four families of relatives settled upon that part of the land lying east of Ichouticabouffa River establishing houses there, and actually living upon the land until 1873. During this time Richard Deveraux claimed the entire tract under an unrecorded deed from Jacob Elmer. The authorities in Mississippi hold uniformly that even a parol contract of sale for real estate will afford color of title against the vendor or those claiming under him, for example his heirs, as in this case. The latest announcement of the rule is contained in this case of, Brooks Scanlon Lumber Co. v. Childs, 113 Miss. p. 246, at page 253 of the opinion rendered by Justice SYKES.

The court said: "In this state this court has recognized parol color of title of a vendee as against his vendor and those claiming under him. When a vendor puts his vendee in possession of the land under a parol sale, he knows the limit and the claim of the vendee to this land. As to him it is unnecessary that there should be a visible actual occupation of the entire tract, because of his actual knowledge of the claim of ownership." A fortiori, the vendor would know the extent of the claim, in case of an unrecorded deed.

The principle announced in this decision has several times been applied in Mississippi, as shown by the following cases: Niles v. Davis, 60 Miss. p. 750; Davis v. Davis, 68 Miss. p. 478; Magee v. Magee, 37 Miss. p. 138.

It is well established that an unrecorded deed gives color of title to possession thereunder. This principle is generally recognized. See Lee v. Polk County Cooper Co., 62 U.S. S.Ct. 493; Winston v. Prevost, 6 L.Ed. 164; Minot v. Brooks, 16 N.H. 374; Ring v. Gray, 45, Ky. p. 638; New Market Mfg. Co. v. Pendergast, 24 N.H. p. 54. See case of Crowder v. Neal, 100 Miss. 730.

This case holds squarely that the fact of another owning land within the enclosure will not prevent the occupancy from being adverse and the statute of limitation from running. See also case of Moran v. Moseley, 164 S.W. 1093, holding: "It is not necessary to title by adverse possession that the land be separately enclosed, but it is sufficient if it is within a general enclosure.

The leading case of Caruth v. Gillespie, 109 Miss. p. 679, far weaker in its facts that this, strongly supports our contention here. The authorities might be multiplied on this question, but we deem the foregoing sufficient.

The next question arising from the facts shown by the record is whether or not a conveyance of these lands from Jacob Elmer to Richard Deveraux is shown. On this point, there is not the slightest controversy, in proof as to what actually happened. The only matter to be discussed is whether the proof was sufficient to established the deed.

On the assessment roll of 1886, appears a notation that the land was purchased from Jacob Elmer by Richard Deveraux, and the assessment was changed for that year from Elmer to Deveraux. For fifty-one years after the trade with Deveraux, the taxes were paid by Deveraux and his successors in title, and it was not until a meddling abstractor, more than a half century afterwards, discovered by accident and called to appellee's attention the break in the title, that we hear of any claim made to the land by Elmer, or his descendants.

The next proposition involved in this record is whether the law will presume a grant from Elmer to Deveraux under the facts shown by the proof. Of course this question is closely allied to that of adverse possession, and it might with propriety have been considered along with that phase of the case, but we prefer to treat it separately.

We shall not burden the court with a multitude of authority, but shall cite a few selected cases. Hewling v. Blake, 110 Miss. p. 225; Caruth v. Gillespie, 109 Miss. p. 679; Nixon's Heirs v. Carco's Heirs, 28 Miss. 414; Stephenson's Heirs v. McReary, 12 S. &. M. 9; United States v. Chaves, 44 L.Ed. 255. The will of Jacob Elmer (shown at page 30 of this transcript), shows a complete abandonment of claim to any lands in Harrison County outside the city of Biloxi. The testator says: "I give, devise and bequeath all the estate, real and personal, which it has pleased God to bless me with as follows to wit:"

In conclusion we submit that the title of appellants to the land had become complete by adverse possession long before the suit was filed. In the case of Geogehan v. Marshall, 66 Miss. 676, the court held that it is not necessary for the adverse possession to continue during the whole time from the beginning of the claim to the date of suit, but it is sufficient if there be ten years continuous adverse occupancy at any period before suit is filed.

We submit confidently that the proof shows that a deed was executed by Jacob Elmer to Deveraux, and certainly the law will presume a grant in the presence of proof so strong and convincing.

W. E. Morse and J. M. Morse, for appellee.

To constitute adverse possession there must be open exclusive, hostile, and notorious possession as against the whole world. If the facts do not bring the case within this rule then it is not adverse possession.

We will, therefore, take up the different acts relied upon and study them more in detail to see whether or not they constitute adverse possession.

The Deveraux family took this land under a claim of right. They were in truth and in fact mere trespassers; they did not even take under color of title; therefore if any action of theirs was sufficient to constitute adverse possession, then it would only attach to that particular part of the land which they had in their immediate possession.

Our state court has held: "One entering land without color of title is limited to possessio pendis." Niles v. Davis, 60 Miss. 755; Ryan v. M. V. Ry., 62 Miss. 162; Chastang v. Chastang, 37 So. 799; 10 R. C. L. Adverse Possession, sec. 42, says: "It has been established by the great weight of authority that the rights of those who enter upon the land as mere trespassers, that is, without color of title, will be confined to that portion of the property which was subject to their actual possession."

But says the appellants, that the Devereaux family burned charcoal over most of the land, and cut down a great deal of the timber upon the same. We still say that they would be limited to the particular portion that they lived upon. But say that it did not; say that their claim extended to the entire tract of four hundred acres. Even then, the acts of the Devereaux would not be sufficient to constitute adverse possession, for the proposition that the cutting of timber and other slight acts of trespass will not support the contention of adverse possession. See Stevens Lbr. Co. v. Hughes, 38 So. 769; See, also, Leavenworth v. Reeves, 64 So. 660, 2 C. J. p. 64.

Yet granting every contention made by appellants as to the acts of the Devereaux family, that they held adverse to Elmer; that they held the entire four hundred acres on account of having burnt charcoal over some of it and having cut some timber from the land, still the time which they held the property was only for seven years, and if there was to be any adverse possession it had to arrive under the holding of Krohn, because there was an abandonment of their claim when they moved off the property, for the reason that they had no color of title, they were holding, as mere trespassers moved off the property. For the reason that they had no See Harper v. Tapley, 35 Miss. 506.

The only other claim advanced by the appellants was that they paid taxes, they seemed to put a great deal of stress upon this point. This is a good question upon which to cite authorities for in our case, but the following are only a few of the cases upon this subject. Kennedy v. Saunders. 90 Miss. 542; Leavenworth v. Reeves, 64 So. 660; 19 R. C. L. On the subject of adverse possession, par 12: In proving a claim of title by adverse possession it is competent to introduce evidence showing the payment of taxes by the claimant on the property involved far all, or a part of the time, it was in his possession. Such evidence is to be considered by the jury in connection with other in the case, but is not of itself sufficient to establish adverse possession."

For other cases covering this identical point see: Ewing v. Burnett, Fed. Cas. 1; McLean 266; Brown v. Bacquenne, 57 Ark. 89, 20 S.W. 813; Ballenger v. Cauteau, 20 Mo. 89; Cashman v. Cashman, 50 Mo.App. 663; Molley v. Bruders, 86 N.C. 251; Reed v. Field, 15 S.W. 672; McCaughn v. Young, 85 Miss. 287.

Taking all of the acts of adverse possession relied upon by the appellants and we have an insufficient possession to constitute adverse possession as required by the law in our state. Kennedy v. Saunders, 90 Miss. 543; Cohn v. Smith, 94...