Nichols v. Gaddis & McLaurin, Inc.

• Decision Date: 15 November 1954
• Docket Number: No. 39318,39318
• Citation: 222 Miss. 207,75 So.2d 625
• Parties: James NICHOLS et al. v. GADDIS AND McLAURIN, Inc.
• Court: Mississippi Supreme Court

Page 625

75 So.2d 625

222 Miss. 207

James NICHOLS et al. v. GADDIS AND McLAURIN, Inc.

No. 39318.

Supreme Court of Mississippi.

Nov. 15, 1954.

Craig Castle, Jackson, Carl E. Guernsey, Laurel, for appellant.

James H. Adams, Raymond, Vardaman Dunn, Jackson, for appellee.

ETHRIDGE, Justice.

Appellee, Gaddis and McLaurin, Inc., was a purchaser of land at a void foreclosure sale. The chancery court held that appellee had title to it by adverse possession after the sale. The question is whether the trial court was warranted in finding that there was an ouster of cotenants by a cotenant in possession at the time of the foreclosure, who thereafter continued in possession as a tenant of appellee.

On December 22, 1897, the owners of a tract of land in the Second Judicial District of Hinds County containing a little less than 100 acres conveyed it to Matt Nichols and four of his sons, J. N. or 'Jim' Nichols, M. C. Nichols, Willie Nichols, and Lem Nichols. Each of these five grantees thereupon became vested with an undivided one-fifth interest in the property. Only Willie Nichols is still living. All the others died intestate before 1931, leaving numerous heirs, some of whom in turn have died, leaving other heirs. However, it appears that the eight appellants own all of the Nichols' claim and interest in the record title to the land.

In 1915 the land was assessed to J. N. or Jim Nichols, and it continued to be so assessed to him through the year 1932, although he received under the 1897 deed only a one-fifth interest, and after his father's death in 1900 continued to own only a fractional undivided interest in the property.

Around 1906 J. N. Nichols bought a 19-acre tract adjoining the 100-acre tract on the west side. He and his family lived in a log cabin on the 100 acres until around 1924, when he moved to a house on the 19-acre tract.

On February 3, 1928, J. N. Nichols and wife, Mary E. Nichols, executed a deed of trust to Mrs. Sallie Y. Herring, beneficiary, with H. B. Gillespie as trustee, mortgaging the 10-acre tract to secure a debt to Mrs. Herring of $1,527.77. This deed of trust was filed for record three days after its execution. Power to appoint a substitute trustee was vested in Mrs. Herring. This deed of trust purported to cover the entire fee to the land under a general warranty of title.

In 1930 J. N. or 'Jim' Nichols died intestate, leaving as his heirs his wife, Mary, and five children who are appellants in this suit, James W. Nichols, Matthew Nichols, Curtis Nichols, Welborn Nichols, and K. B. Nichols. He also left three other children as heirs, who in 1953 conveyed their interests in the property to James W. Nichols.

On February 6, 1929, Mrs. Sallie Y. Herring executed a deed of trust to Gaddis and McLaurin, of Bolton, Mississippi, a partnership consisting of J. L. Gaddis and George McLaurin, making as collateral therein to secure a debt of $15,000 a number of items of personal and real property, including the 1928 note of J. N. Nichols and wife. This deed of trust by Mrs. Herring was foreclosed by the trustee, acting for Gaddis and McLaurin, beneficiary, on January 20, 1932. The foreclosure deed conveyed to Gaddis and McLaurin the 1928 note of J. N. Nichols and wife, secured by the deed of trust on the 100 acres.

Although the 1928 deed of trust from J. N. Nichols and wife authorized only Mrs. Herring, the original beneficiary, to appoint a substitute trustee, on February 2, 1932, Gaddis and McLaurin attempted to appoint a substitute trustee. This appointment was invalid, because of lack of power to make it. On March 7, 1932, the purported substitute trustee attempted to execute the power of sale and to foreclose the mortgage. The trustee's foreclosure deed conveyed the 100-acre tract to Gaddis and McLaurin, but it was void, for the reason already stated.

After the trustee's deed of 1932 to Gaddis and McLaurin was executed and recorded, the 100-acre tract was assessed to Gaddis and McLaurin on the assessment rolls of Hinds County, beginning with the year 1932 through 1953, and Gaddis and McLaurin had paid all taxes assessed against the land during that period. In 1937 this partnership conveyed its interest to appellee corporation.

In 1933 J. L. Gaddis, Jr., representing his father, drove over the 19-acre tract on one occasion and went to the fence separating the 19-acre lot from the 100-acre tract to the east, and looked over the fence at the 100 acres. In 1934 he drove over the 100 acres. On neither occasion did Mr. Gaddis tell the Nichols of his claim. Shortly after the foreclosure, James W. Nichols, who continued to live in a house on the 19-acre tract and to farm the 100-acre tract after his father's death in 1930, received a letter from J. L. Gaddis, Sr., asking him to come to Bolton. He did so, and Gaddis advised him that he had purchased the place at the foreclosure sale. James W. agreed to rent it from Gaddis and McLaurin. On January 23, 1933, Gaddis and McLaurin leased the 100-acre tract to James W. Nichols for ten years for an annual rent of a stated amount of lint cotton from the land ginned, baled and delivered. This contract also gave James W. Nichols an option to purchase the land for $2,000 during the period of the lease, if he also paid the taxes, and it provided for a credit on the purchase price of any rent payments made by him. The record also reflects that in 1936, 1944, 1948, 1949, 1950, and 1951, James W. Nichols executed rent notes to Gaddis and McLaurin, and that in 1937 Gaddis and McLaurin made a new lease of the property for five years to James W. Nichols, containing a reduced rent. None of the leases were recorded. James W. Nichols paid rent to Gaddis and McLaurin from 1932 through the crop year of 1951, a period of 19 years, with cotton produced on the 100-acre tract.

In 1932 when James W. Nichols began renting the land as a tenant of Gaddis and McLaurin, he was living in a house on the adjoining 19-acre tract, with his wife and children. His mother, Mary Nichols, who was a co-signer of the deed of trust, and an uncle, Charlie Nichols, who died in 1946, lived in another house on the 19 acres.

James W. Nichols' wife knew that he was paying rent over this period of years. He said that his Uncle Charlie and his mother 'might have' known that he was renting from Gaddis and McLaurin. He also obtained from them 'furnish' or supplies with which to make the crop for those years. James W. admitted that he knew during this period that Gaddis and McLaurin were claiming to own the 100-acre tract.

Early in 1952 James W. and Mr. Gaddis were unable to agree on the rent for the land for that year. Gaddis told him to go ahead and work it for a rent of one-fourth. He thought that James W. was doing that until the fall of 1952, when Gaddis learned that James W. had not made any crop on the 100-acre tract for 1952. After that, in 1952, Gaddis and McLaurin contracted to sell the land to W. P. Taylor. James W. then approached Taylor and offered to buy it from Taylor. During 1952 and 1953 James W. continued to live on the 19-acre tract, concerning which property there is no dispute. The only access to the 100-acre tract is across the 19 acres. The sale to Taylor was not completed because in June 1953 a tractor driver for Taylor was refused passage across the 19-acre tract by James W. Nichols. Taylor leased the land from appellee in May 1953, and made a crop on it that year.

On June 17, 1953, appellee, Gaddis and McLaurin, Inc., the successor in title of the partnership of Gaddis and McLaurin, filed the present suit in the Chancery Court of the Second Judicial District of Hinds County against James W. Nichols, seeking an injunction to restrain the defendant from interfering with appellee's right to an easement over the 19-acre tract, and to enjoin the defendant from placing his cattle upon the 100-acre tract or using the same in any manner. The bill was later amended to make other, nonresident cotenants defendants, and to pray for a confirmation of appellee's title. The answer of James W. Nichols denied the averments of the bill, and James W. sought by cross bill to confirm title to his undivided interest. The other seven defendants filed answers but no cross bill. Appellee, cross-defendant, denied that there was a valid legal title in cross-complainant and pleaded that appellee had obtained title by adverse possession.

The chancery court found that the foreclosure sale and deed to Gaddis and McLaurin were invalid. However, it held that appellee had obtained title to the property by adverse possession against all of the tenants in common, and that appellee had also obtained an easement over the 19-acre tract by prescription. Hence the final decree adjudged that Gaddis and McLaurin, Inc., was the owner of the 100-acre tract and of an easement across the 19 acres. The claims of appellants were cancelled.

The chancery court held that there was an ouster of all of the cotenants, including those who lived away from the land, which began the ten-year statute of adverse possession running, and that appellee had obtained title to the land by adverse possession. Appellants argue that this finding is contrary to the great weight of the evidence considered in the light of established legal principles pertinent to this issue.

Because of the mutuality of their interests, possession and obligations, the relationship between cotenants is confidential and fiduciary in nature. Each has a duty to sustain, or at least not to assail, the common interest, and to sustain and protect the common title. It is a relationship of trust and confidence between co-owners of property, 86 C.J.S., Tenancy in Common, Sec. 17.

An ouster is the wrongful dispossession or exclusion by one tenant in common of his cotenants from the common property of which they are entitled to possession. An ouster cannot be proved merely by acts which are consistent with an honest intent to acknowledge the rights of...