Newman v. J. J. White Lumber Co.

• Citation: 139 So. 838,162 Miss. 581
• Decision Date: 29 February 1932
• Docket Number: 29815
• Court: United States State Supreme Court of Mississippi
• Parties: NEWMAN v. J. J. WHITE LUMBER CO

139 So. 838

162 Miss. 581

NEWMAN v. J. J. WHITE LUMBER CO

No. 29815

Supreme Court of Mississippi

February 29, 1932

Division B

1. REFORMATION OF INSTRUMENTS.

Evidence held to sustain finding that through mutual mistake description in deed executed in 1884 failed to include land in controversy.

2. LIMITATION or ACTIONS.

Statutory limitation on equity suit to recover land held not to apply to suit to reform deed by person whose possession and payment of taxes through predecessors in title exceeds forty-five years (Code 1930, sections 2285, 2286).

3. LIMITATION OF ACTIONS.

Person in possession need not bring suit to reform erroneous description in conveyance until his title is menaced by adverse claim.

4. LIMITATION OF ACTIONS.

Where grantor intended to sell all her interest in land, but through mutual mistake one tract was not included in deed successor in title in possession held entitled to have deed reformed some forty-five years later.

HON. T P. GUYTON, Chancellor.

APPEAL from chancery court of Pearl River county HON. T. P. GUYTON Chancellor.

Suit by Mrs. Mahana Stewart Newman against J. J. White Lumber Company, which filed new and independent bill against plaintiff and others, whereupon causes were consolidated for trial. From decree dismissing original plaintiff's bill, and granting relief prayed for by original defendant, the original plaintiff appeals. Affirmed.

Affirmed.

Hathorn & Williams, of Poplarville, for appellant.

Appellee failed to establish the indispensable elements necessary to confer title by adverse possession. (1) Actual possession, (2) open and notorious possession, and (3) continuous and uninterrupted possession for ten years.

Leavenworth v. Reeves, 64 So. 660; Ford v. Wilson, 35 Miss. 504; Stevens Lumber Company v. Hughes, 38 So. 769; Dedeaux v. Bayou Delisle Lumber Company, 73 So. 53; Hyer v. Griffin, 46 So. 635; Hunting Club v. Stovall, 113 So. 336; 1 (Cyc., p. 928, art. 2, par. A and B; 2 C. J. 64, 69 and 70; Reddick v. Long, 27 So. 402.

This court has established by a long line of decisions that before a deed can be reformed on the ground of a mutual mistake, the mistake must be proved practically to the exclusion of every other reasonable hypothesis.

Harrington v. Harrington, 2 How. 701; Lauderdale v. Hallock, 7 Smedes & M. 629; Jones v. Jones, 41 So. 373, 88 Miss. 784; Insurance Company v. McQuaid, 75 So. 255, 114 Miss. 430; Bank of Summit v. McGehee, 107 So. 876; Rogers v. Clayton, 115 So. 106; Whitney Central Bank v. First National Bank, 130 So. 99.

It was incumbent upon appellee and those through whom it claims to commence the suit to reform the deed from appellant to Jessie Stewart within ten years after the right to such reformation accrued.

Sections 2664 and 2665 of the Code of 1880; Allison v. Burnham, 100 So. 518; Norton v. Davis, 18 S.W. 430; Bryant v. Swetland, 27 N.E. 100.

The statute of limitations is applied in our courts of equity.

Hill v. Nash, 19 So. 707.

Counsel for appellee realizing that the record in this case conclusively shows that there is not now and has never been any actual occupancy or possession of the land contend that appellee and its predecessors in title were in the constructive possession of the land. The fallacy of this contention of appellee is that constructive possession always follows the true title, and the true title to the undivided one-sixth interest sued for by appellant is in appellant and not appellee. Where the holder of the true title is not in the actual, physical possession of the land, or where the land itself is incapable of occupancy, such holder of the true title is presumed to be in possession of the land, constructive possession always following the true title; and before this presumption of possession can be overcome, it must be shown that there has been a disseizure and ouster of the true owner of the title.

Huntington Club v. Stovall, 113 So. 336; Dingey v. Paxton, 60 Miss. 1038; Hyer v. Griffin, 46 So. 635.

Ford & McGehee, of Columbia, and Parker & Shivers, of Poplarville, for appellee.

One in possession of property under a record chain of title, and there being no adverse occupancy, is not required under penalty of a statute of limitation to commence a suit to enforce his rights until his claim of ownership and right of possession is questioned.

37 C. J., p. 720, par. 39, sec. 11.

Where the title of a person in undisputed possession of land is challenged, he may set forth any equitable defense in favor of his right to the property, and the statute of limitations will not run so as to prevent him from setting forth such defense.

The limitation law may, in a possessory action, deprive a suitor of his sword, but of his shield never.

Pinkham v. Pinkham, 83 N.W. 837.

Both the grantor and the grantee are necessary parties to a suit for reformation.

Griffith's Chancery Practice, par. 122 at page 125; Gates v. Naval Stores Co., 92 Miss. 227, 45 So. 979.

The general rule is that statutes of limitation are not applicable to defenses.

17 R. C. L. 745; Buty v. Goldfinch, Ann. Cas. 1915A, p. 604.

A limitation law simply requires him to proceed and enforce these rights within some reasonable time, on pain of being deemed to have abandoned them. Such laws can only operate on those who are not already in the enjoyment and dominion of their rights. A person who has a lawful right, and is actually or constructively in possession, can never be required to take active steps against opposing claims.

Groesbeck v. Seeley, 13 Mich. 329; Baker v. Kelly, 11 Minn. 480.

One who is in actual or constructive possession of his lands, and who has the right of possession and of property, needs no action to enforce his rights.

Dingey v. Paxton, 60 Miss. 1038; Pinkham v. Pinkham, 60 Nebr. 600, 83 N.W. 837.

Things which afford a ground of action, if raised, within a certain time, may be pleaded at any time, by way of exception.

32 Cyc. 1279.

Pure defenses are held not to be barred by the statute of limitations.

25 Cyc. 1063; Jones v. Brewer, 146 Miss. 142, 110 So. 115; Russell et al. v. Scarborough et al., 155 Miss. 508, 124 So. 648.

A statute requiring bills for relief to be filed within ten years after the cause thereof shall have accrued does not apply to a defendant resisting an unrighteous claim by the equitable defense of the right to have an instrument reformed, but applies only to bills filed by the plaintiff for equitable relief.

23 R. C. L., p. 353, sec. 50.

There was no occasion for the filing of a suit for the reformation of this deed either by Jesse Stewart or any of his successors in title, until they learn of the adverse claim of the appellant which was asserted for the first time on May 22, 1930, when she filed her suit for partition. Statutes of limitation against actions for the recovery of land, or concerning land, can have no application against one in possession and full enjoyment of all rights claimed by him in the land until those rights are sought to be invaded.

One who is in actual constructive possession of his lands, and who has the right of possession and of property, needs no action to enforce his rights. He is already in the enjoyment of all that the law can give him.

Dingey v. Paxton, 60 Miss. 1038.

Counsel for appellant in their brief lay stress on the validity of the sale under execution to Jesse Stewart of the alleged dower interest of Sarah A. Stewart in the land, and also on the invalidity of the subsequent partition proceedings had prior to the death of the said Sarah A. Stewart between the said Jesse Stewart and others, against Thomas Stewart, hereinbefore mentioned. But we respectively submit that the right of the appellant to maintain or not to maintain her partition suit filed on May 22, 1930, against the appellee, was in nowise dependent upon whether or not the said Jesse Stewart had acquired the other outstanding shares in the estate of their deceased father, Hampton S. Stewart, by reason of the said execution sale and former partition proceedings, but on the contrary, her right to maintain or not to maintain the present suit for partition is dependent upon whether or not she intended by her warranty deed of February 12, 1884, to convey to Jesse Stewart all of her right, title and interest in the land of the estate of which the said Hampton S. Stewart died, seized and possessed.

The appellee was not guilty of laches by reason of the delay in seeking to reform the deed of conveyance.

Brimm v. McGee, 80 So. 379, 119 Miss. 52; Zeigler v. Zeigler et al., 60 So. 810; Woodlawn Realty & Development Co. v. Hawkins et al., 65 So. 184; 34 Cyc. 967; 5 Pom. Eq. Jur., par. 33.

Laches is never imputed to one in possession.

Fowler v. Alabama Iron & Steel Co., 51 So. 394.

OPINION

Anderson, J.

Appellant filed her bill in the chancery court of Pearl River county against appellee for the sale and partition of the proceeds thereof of one hundred forty-nine and eighteen hundredths acres of land in that county and have an accounting for certain timber and trees cut and removed therefrom by appellee, in which land and timber appellant claimed an undivided one-sixth interest as heir at law of her father, Hampton S. Stewart, deceased.

The appellee answered the bill denying appellant's claim of title, and alleged that on the 12th day of February, 1884 appellant had conveyed her one-sixth undivided interest in all of the land of which her father, Hampton S. Stewart, died seized and possessed, a part of which was the land in controversy, to her brother Jesse Stewart, one of appellee's predecessors in title, but that through mutual mistake of the grantor and the grantee in said conveyance the land involved was omitted from the description in...