Neal v. Teat, 41619

• Decision Date: 16 January 1961
• Docket Number: No. 41619,41619
• Citation: 126 So.2d 124,240 Miss. 35
• Parties: Oscar NEAL and Hattle Neal v. A. H. TEAT et al.
• Court: Mississippi Supreme Court

Page 124

126 So.2d 124

240 Miss. 35

Oscar NEAL and Hattle Neal v. A. H. TEAT et al.

No. 41619.

Supreme Court of Mississippi.

Jan. 16, 1961.

McClaren & McMillan, L. S. McClaren and Gerald McMillan, McComb, for appellants.

Hedgepeth, Ewing, Price & Hedgepeth, Jackson, David Gross, New Orleans, La., for appellees.

GILLESPIE, Justice.

The question in this case is whether the defendant in a suit in equity by a landowner to cancel a deed to one- half undivided interest in minerals on grounds of fraud may invoke the ten-year statutes of limitations, Sections 709 and 710, Mississippi Code of 1942, when the landowner's mineral deed has been of record for more than ten years before the suit was filed.

The original bill in chancery was filed by Oscar Neal and his wife, Hattie Neal, who alleged that they were the owners of 160 acres of land which was their homestead, and that on March 11, 1940, the agents of defendant A. H. Teat fraudulently obtained from the complainants a deed to an undivided one-half interest in and to the oil, gas and other minerals to defendant Teat. The fraud charged was that the grantee's agent falsely represented the instrument to be an oil, gas and mineral lease instead of a deed and that it was conditionally delivered. In short, the bill charged that the deed was fraudulently obtained. While sufficient allegations were made that the deed was voidable, the charges were insufficient, when taken as true, to show the deed was void. Defendants in the case are the grantee, A. H. Teat, and those claiming under him. The bill sought to cancel the deeds from complainants to Teat and the other instruments executed by Teat and his grantees as clouds upon complainant's title, and for a confirmation of complainant's title.

The mineral deed from complainants to Teat was executed on March 11, 1940, and filed for record on September 20, 1940, and duly recorded. This suit was filed on October 18, 1958.

The defendants demurred to the bill and the chancellor sustained the demurrer on the grounds that the action was barred under Code Sections 709 and 710. One of the defendants set up the bar of said statutes in a special plea, which was sustained. Complainants appeal to this Court.

The pertinent part of Code Section 709 is as follows: 'A person may not make an entry or commence an action to recover land but within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims; or, if the right shall not have accrued to any person through whom he claims, then within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same; * * *.'

Code Section 710 is as follows: 'A person claiming land in equity may not bring suit to recover the same but within the period during which, by virtue of the provisions hereinbefore contained, he might have made an entry or brought an action to recover the same, if he had been entitled to law to such estate, interest, or right in or to the same as he shall claim therein in equity; but in every case of a concealed fraud, the right of any person to bring suit in equity for the recovery of land, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which the fraud shall, or, with reasonable diligence might, have been first known or discovered.'

Code Section 709 is applicable only to suits at law to 'make an entry' or 'to recover land'. Section 710 is the counterpart of Code Section 709 for suits in equity applicable to the same kinds of actions referred to in Code Section 709. Since the second section refers to the first, these two statutes are to be considered together. It should be noted that they are pure statutes of limitations as distinguished from Section 711 which is an adverse possession statute. Code Sections 709 and 710 may be used defensively only, while Code Section 711 provides that ten years' adverse possession vests full title and such title may be used offensively or defensively in suits at law or in equity.

The application of Code Sections 709 and 710 to cases involving suits for the cancellation of instruments creating the peculiar estate that the owner of a severed mineral interest holds presents some difficulties. The question now before the Court was first presented in Hunt v. Davis, 208 Miss. 710, 45 So.2d 350, but the Court found other grounds for the disposition of that case and pretermitted consideration of the application of Code Section 710 with the observation that the question was interesting but preplexing.

Code Sections 709 and 710 were contained in its present form, or substantially similar form, in all of the Codes since 1848. Since the enactment of Chapter 196, Laws of 1934, Section 717, Mississippi Code of 1942, a number of cases have been decided construing that statute, which limits the time that an owner may bring suit to cancel a tax title to two years, and have applied to that statute the same principles governing the application of Code Sections 709 and 710. A study of the cases involving the application of Sections 709 and 710 on the one hand, and Chapter 196, Laws of 1934, on the other, clearly shows that the same principles apply and all these cases may be considered as one line of authority. And from this line of authority, the following principles are deduced.

The power of the legislature to prescribe within what reasonable time one having a mere right of action shall proceed is unquestionable; but a statute which, regardless of possession by the owner, reduces title to real estate to a mere right of action to be asserted within a prescribed period of time is an attempt to divest title without due process of law. A person who owns property, and who is in possession of it, has more than a right of action. He has everything the law can give him, and it is unnecessary that he resort to a suit to gain back that which he has never lost.

Neither of the statutes of limitations referred to may be invoked in a suit where (1) the complainant holds title, (2) has the actual or constructive possession of the property, and (3) the defendant, whose claimed adverse interest is sought to be cancelled, is not in possession. In short, statutes of limitations do not begin to run against a person who has (1) good title, and (2) actual or constructive possession of lands, until an adverse entry has been made.

The line of cases announcing the foregoing principles include Dingey v. Paxton, 60 Miss. 1038, 1054; Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; Newman v. J. J. White Lumber Company, 162 Miss. 581, 139 So. 838; E. L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491; Russell Investment Co. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815, 20 So.2d 821; Hooper v. Walker, 201 Miss. 158, 29 So.2d 72; Leech v. Masonite Corp., 219 Miss. 176, 68 So.2d 297.

All of the foregoing cases involved the statutes of limitations referred to above and in each instance the Court denied the defendants' attempt to invoke the bar of limitations. In those cases the only possession with which the court was concerned was actual or constructive possession of the whole estate in lands. No severed mineral interests were concerned.

In Continental Oil Company v. Walker, 238 Miss. 21, 117 So.2d 333, the suit by the landowner sought cancellation of a forged deed to a mineral interest. The defendants claiming under the mineral deed pleaded the bar of Code Sections 709 and 710. The Court refused to allow the defendants to invoke the statutes because they were not in possession, citing Kennedy v. Sanders, supra.

No appearance of disharmony is revealed in the above cited cases.

In Aultman v. Kelly, 236 Miss. 1, 109 So.2d 344, suit was filed by the heirs of Cuevas for the cancellation of a deed to one-half of the minerals executed by Cuevas on April 30, 1945, on grounds of fraud. Cuevas died July 22, 1945. The mineral deed was recorded May 11, 1945. The suit was filed more than ten years after the death of Cuevas. There had been no actual possession of the minerals by drilling, etc., by those claiming under the mineral deed. This Court reversed the lower court, holding that Code Sections 709 and 710 barred the action which accrued in that case not later than the date Cuevas died. It was held that the recorded mineral deed was constructive notice to Cuevas' heirs. Similar recent decisions applying the bar of Code Sections 709 and 710 in suits involving voidable mineral deeds were rendered in King v. Childress, 232 Miss. 766, 100 So.2d 578, and Gandy v. Burke, 236 Miss. 241, 109 So.2d...