Newman v. Smith, 39823

• Decision Date: 16 January 1956
• Docket Number: No. 39823,39823
• Citation: 84 So.2d 512,226 Miss. 465
• Parties: Joe H. NEWMAN v. G. Spencer SMITH et al.
• Court: Mississippi Supreme Court

Page 512

84 So.2d 512

226 Miss. 465

Joe H. NEWMAN v. G. Spencer SMITH et al.

No. 39823.

Supreme Court of Mississippi.

Jan. 16, 1956.

Morse & Morse, Poplarville, for appellant.

Hall & Callendar, Columbia, H. H. Parker, Poplarville, Maurice Dantin, Columbia, for appellees.

KYLE, Justice.

This case is before us on appeal by Joe H. Newman, defendant and cross-complainant in the court below, from a decree of the Chancery Court of Pearl River County, in favor of G. Spencer Smith and others, complainants and cross-defendants, cancelling all claims of the said Joe H. Newman and his codefendants to a tract of land in Sections 8 and 9, Township 2 South, Range 17 West, containing approximately 151 acres, which was conveyed to the said complainant, G. Spencer Smith, by J. J. White Lumber Company by warranty deed dated June 20, 1946, and dismissing with prejudice the defendants' cross bill.

The record shows the following facts which constituted the basis of the complainants' claims of title, as set forth in their bill of complaint. The 151-acre tract of land described in the bill was formerly owned by J. M. Newman, the appellant's father, who conveyed the land by warranty deed to Salmen Brick and Lumber Company, Ltd., on March 23, 1923. The deed which was executed by J. M. Newman and his wife to the Salmen Brick Company contained a reservation of pasturage rights as follows: 'It is also understood and agreed that grantors are to have the right to continue to use the pasture as now erected and in use on said Lot 7, Section 8, to use same as tenants at will of the grantee, of course, to acquire no rights to the freehold by reason of the use of said pasture.' On May 10, 1926, Salmen Brick Company conveyed the land by warranty deed to J. J. White Lumber Company; and on June 20, 1946, J. J. White Lumber Company conveyed the land to G. Spencer Smith by warranty deed, excepting, however, the oil, gas and minerals which had been theretofore conveyed to A. T. Stewart. The Atlantic Refining Company was the owner of an oil, gas and mineral lease on the land at the time Smith purchased the land from the lumber company.

The bill of complaint in this cause was filed on July 5, 1948, by G. Spencer Smith, A. T. Stewart, The Atlantic Refining Company and J. J. White Lumber Company, as complainants, against Joe H. Newman, J. M. Morse and J. M. Morse, III, as defendants. In their bill the complainants deraigned a record title to the land; and the complainants then alleged that within the last ten years next preceding the filing of the bill the defendant Joe H. Newman had entered upon the land and had erected a fence on a portion of the land and had undertaken to take the same into his possession, and was claiming it as his own. The complainants further alleged that the said Newman had no deed to the land or color of title, but claimed the same by virtue of his alleged adverse possession of the surface of a portion of the land; and that the complainants were entitled to a decree cancelling his claim to the land and quieting and confirming the complainants' title. The bill further alleged that the defendants, J. M. Morse and J. M. Morse, III, had obtained a quitclaim deed from the defendant, Joe H. Newman, which purported to convey to them an undivided one-half interest in the land, and that the complainants were entitled to have that deed also cancelled.

The prayer of the bill was that a decree be entered cancelling the claims of all the defendants to the lands and confirming the complainants' title.

The defendants in their answer denied the complainants' claim of title, and as an affirmative defense averred that Joe H. Newman had gone into possession of the land on or about April 29, 1934, claiming the same as his own, and had acquired title to the land by adverse possession for a period of more than ten years. The defendants made their answer a cross bill and asked that their title be confirmed.

After numerous postponements, the cause was finally heard by the chancellor, at the May 1954 term of court, upon the pleadings and proof.

Upon the hearing the complainants made proof of their record title, and the complainants then called Joe H. Newman to testify as an adverse witness.

Newman testified that after his father and mother had conveyed the land to the Salmen Brick Company in 1923, they continued to pasture their cattle on that part of the land which his father had under fence until his father's death in 1934, and that neither the brick company, while it owned the land, nor J. J. White Lumber Company, after it acquired title to the land in 1926, interposed any objection to J. M. Newman using the land for pasturage purposes. Newman then stated that after his father's death he repaired and rebuilt the fences around the tract of land which his father had under fence, and continued to use the land thus enclosed for pasturage purposes down to the date of the filing of complainants' bill in 1948. Newman admitted that he had personal knowledge of the clause contained in the warranty deed which his father and mother had executed to the Salmen Brick Company in 1923 giving them the right to continue to pasture their cattle on the land as tenants at will of the Salmen Brick Company.

Newman testified that the fence which he repaired and rebuilt enclosed only 35 or 40 acres of the 151-acre tract. He admitted that he had no paper title, or record title, to any part of the land, and that he did not intend to claim title in his cross bill to the entire tract, but only that part of same which he had under fence. He admitted that the J. J. White Lumber Company acquired title to the land from the Salmen Brick Company in 1926, and that the lumber company had had the land assessed to it, and had paid the taxes on the land each year thereafter until the land was sold to G. Spencer Smith, and that Smith had had the land assessed to him and had paid the taxes on the land since 1946; and he admitted that he had never had any part of the land assessed to himself as the owner thereof.

Newman testified that, after Smith purchased the land from the lumber company in 1946, he talked to Mr. Smith several times about purchasing the land from him, and that he tried to buy that part of the land that he had under fence. Newman was then asked the following questions and made the following answers:

'Q. But you offered him $5.00 an acre for the forty acres set up under your fence? A. Yes, sir.

'Q. Which would be $200? A. Yes, sir.

'Q. And you made that offer to Mr. Smith several times? A. Yes, sir.

'Q. And you would have been glad to do that? A. Yes, sir, that's all I wanted.

'Q. The fact is, Mr. Newman, that when you first talked to Mr. Smith about this land you told him then that 'I was planning to buy that land from the lumber company?' A. Yes, sir.

'Q. You made that statement several times? A. They knew I was going to buy it when I got the money.

'Q. He knew that you were going to buy it from the lumber company when you got the money? A. Yes, sir.

'Q. Is that one of the reasons you hadn't already bought it? A. Yes, sir.'

Newman admitted that during the thirties, when Mr. H. L. White, who was president of the J. J. White Lumber Company, was Governor, and also during the forties, he had spoken to Earnest Ford, who had served as land agent of the lumber company, about buying the land, and that he had asked Mr. Ford to 'put in a word for him' for the land. Newman also stated that he told Mr. White's secretary that he wanted the land when he got the money, and Mr. White's secretary told him he would sell it to him, and he said, 'No, you might get a chance to sell it to somebody else.' He said that he could not recall when he made that statement, but he did make the statement. Newman stated that when he finally got the money and went to Columbia in 1946 to buy the land he found out that Mr. Smith had already bought it.

Upon direct examination by his own attorney, Newman stated that he had kept trespassers off the land during the time that he had had it in his possession, and had protected the land from timber cutters. He stated that the reason he offered to buy the land from Mr. Smith was that he did not want to go to court. Upon further cross-examination by the complainants' attorney, he stated that when he rebuilt the fence in 1934 after his father's death, he knew the land was not his land, and the reason for rebuilding the fence was that he needed the land for pasturage purposes.

The complainant, G. Spencer Smith, testified that after he purchased the 151 acres of land from J. J. White Lumber Company in 1946 the defendant Newman came to his house and talked to him several times about the land. Newman told him that he had...