Pannell v. Glidewell

• Citation: 142 Miss. 77,107 So. 273
• Decision Date: 25 January 1926
• Docket Number: 25277
• Court: United States State Supreme Court of Mississippi
• Parties: PANNELL v. GLIDEWELL. [*]

107 So. 273

142 Miss. 77

PANNELL v. GLIDEWELL. ^[*]

No. 25277

Supreme Court of Mississippi

January 25, 1926

Division B

Suggestion of Error Overruled March 8, 1926.

APPEAL from chancery court of Chickasaw county, second district HON. ALLEN COX, Chancellor.

Suit by Mrs. Mattie Pannell against C. E. Glidewell, Sr., and others to cancel adverse claims to land. Judgment for defendants and plaintiff appeals. Reversed and judgment rendered.

Judgment reversed.

Geo. T. and Chas. S. Mitchell, for appellant.

This case involves a gift of land and title by adverse possession, either one of which is sufficient to pass a legal title to land or other real property.

I. The question of adverse possession. It is well settled that to constitute adverse possession, the possession must have been (a) actual, (b) open, visible and notorious, (c) hostile, (d) exclusive and (e) continuous for the statutory period. See 1 R. C. L., p. 698; 2 C. J. 53, Adverse Possession; Tiedman on Real Property, 695-696. It has been decided time and time again by all the courts that such acts as the evidence here reveals are sufficient to establish the fact that the possession was actual and adverse. Ewing v. Burnet, 11 Peters 41; McCaughn v. Young, 37 So. 839; Worthley v. Burbanks, 46 N.E. 779; 3 Washburn on Real Property, 1965; 2 Wood on Limitations, 267. See also Hanna v. Renfro, 32 Miss. 125; Piggott v. Piggott, 73 So. 705; Lumber Co. v. Elmer, 78 So. 705; Huntington v. Allen, 44 Miss. 668; Davis v. Bowmar, 55 Miss. 671; Niles v. Davis, 60 Miss. 753; Davis v. Davis, 68 Miss. 480; Schuler v. McGee, 90 So. 713; Evans v. Harrison, 93 So. 737; R. R. Co. v. Strain, 88 So. 274; Jasperson v. Scharmikow, 15 L. R. A. (N. S.) 1178; Ramos Lumber Co. v. Sanders, 42 So. 158; Ill. Steel Co. v. Budiz, 80 Am. St. Rep. 54.

The following instances have been held to be a sufficient open and notorious possession: "Inclosing the land with a three wire fence." McComb v. Saxe, 122 S.W. 987. "Continued occupation of land as a home, coupled with payment of taxes." R. R. Co. v. Johnson, 121 N.W. 267. "Cultivation and continued occupancy of land as a farm." Wolfe v. Anent, 1 Grant (Pa.) 150. "Erecting a house partly on the land in controversy, and a smoke-house and crib wholly on such land, and the cultivation of a small part thereof." Jones v. Weaver, 122 S.W. 619. "Where a part of the land was cleared, a part was cultivated and a fence treated as the division line." Dreyer v. Budde, 113 N.W. 950. "It has been held that the carrying on of farm work and building operations on land is an open and visible possession." Hartley v. Maycock, 28 Ont. 508. See also Goodson v. Brothers, 20 So. 445; Kidd v. Browne, 76 So. 68 (2, 3); Tiedman on Real Property, sec. 697, p. 653; Alexander v. Polk, 39 Miss. 737; Ford v. Wilson, 39 Miss. 502, a leading case; Davis v. Bowmar, 55 Miss. 742; Magee v. Magee, 37 Miss. 138; Alexander v. Polk, 39 Miss. 736; Gladney v. Barton, 51 Miss. 216.

Was the possession hostile? The word hostile when used in reference to adverse possession simply means that one in possession claims the exclusive right thereto. 1 R. C. L., p. 704; 2 C. J., Adverse Possession, sec. 205, p. 122.

It is the intent of the possessor and the presumed acquiescence of the alleged true owner that determine the adverse character of a possession. All that the law requires, therefore, is that the possession, or rather the acts of dominion by which it is sought to be proved, shall be of such a character as may be reasonably expected to inform the true owner of the fact of possession and an adverse claim of title. Ford v. Wilson, 35 Miss. 504.

Actual notice is not necessary. Any fact or circumstance that is sufficient to put a prudent man upon inquiry, and is of such a character that he might ascertain the fact by the exercise of reasonable diligence, will be regarded as notice. Electric Belt Line v. Ide, 40 S.W. 64; Hooser v. Hunt, 26 N.W. 442; Plow Co. v. Sherman, 41 P. 623. We submit that appellee had actual notice of the claim of appellant's ownership of the property, although all that is required under the law is, that appellee be charged with presumptive notice.

Appellant proved her title by adverse possession, not only by a preponderance of the evidence, but also beyond any doubt and further than she was required to do under the law. This court has decided many cases in favor of the claimant by adverse possession where the evidence was not nearly as clear, unequivocal and certain as the evidence in this case. Ford v. Wilson, 35 Miss. 504; Davis v. Bowmar, 55 Miss. 741.

No principle is better settled than that a parol gift of land may ripen by actual possession, into a perfect title. Sumner v. Stephens, 6 Metcalf 337; Magee v. Magee, 37 Miss. 138. Kidd v. Browne, 76 So. 68, settles the instant case. The above case contains a masterful opinion, an ingenious analysis of the doctrine of adverse possession and makes the criterion the same as was laid down by the supreme court of Mississippi in Ford v. Wilson, supra, and in Ewing v. Burnet, 11 Peters, 241.

It may be that the court below proceeded upon the idea that appellant had no color of title. It is true that she had no paper title, but this is not necessary. An entry under a claim of right is sufficient. If she entered the land under a parol gift, as she stated and in which statement she is borne out by the record, she entered under a claim of right just as good as a color of title. Magee v. Magee, 37 Miss. 138; Davis v. Bowmar, 55 Miss. 671; Niles v. Davis, 60 Miss. 750; I. C. R. R. Co. v. Houghton, 18 N.E. 301, 1 L. R. A. 215; James v. R. R. Co., 91 Ill. 554; 1 R. C. L., Adverse Possession, sec. 20, p. 708; 2 C. J., Adverse Possession, secs. 323-168; Probst v. Presbyterian Church, 129 U.S. 182, 32 L.Ed. 642. Under the above authorities it is not necessary to have a color of title. It is sufficient that the entry be made under a claim of right. In the instant case, the claim of right was the entry under gift and is supported by acts of ownership extending for more than twenty years, showing not only that the gift was made but also the intention with which the possession was taken and the entry of the lands made all the fundamental elements of an adverse possession.

Stovall & Stovall, for appellee.

I. Where a person enters into possession of land under permission or license from the owner, the presumption is that his possession is in subordination to the true owner, in the absence of any acts amounting to a disseisin and does not ripen title however long it may continue. 2 C. J. 265; sec 589 and cases cited; Davis v. Bowmar, 55 Miss. 671; Dean v. Tucker, 58 Miss. 487; Stevenson v. Black et al., 68 S.W. (Mo.), 902.

II. Possession to give title under the statute of limitations is required to be visibly notorious, hostile and continued, to the end, that all others having a claim to the property may have notice of the claim of the occupant. Niles v. Davis, 60 Miss. 750; Brookes-Scanton Co. v. Childs, 113 Miss. 246.

III. A chancellor's decision on the facts of a case will be sustained by the supreme court unless it be manifestly wrong. Grace v. Pierce, 90 So. 590; Meek et al v. Humphreys County, 97 So. 764.

Appellant's cases refer to suits between strangers. Here the occupant, complainant, Mrs. Mattie Pannell, is the daughter of the defendant, C. E. Glidewell, Sr., and her entry upon the land was permissive and the court found, on conflicting testimony, that she never informed her father that she was claiming the land as her own. Ross v. Beecher, 57 S.W. 475.

The case of Stephenson v. Black et al., 68 S.W. (Mo.), 909, holds that where possession of land originates in subordination to the true title, claim of hostile ownership must be unequivocal and brought to the notice of the owner of the particular title. About six years prior to the filing of this suit, appellant sought to obtain a deed to the property in order to sell it. Her father dissented, and, to use her own words, said, "It was worth as much to me as it was to the other man and I had made a success of it and wanted me to stay there."

Argued orally by Chas S. Mitchell, for appellant, and R. T. Stovall, for appellee.

OPINION

ETHRIDGE, J.

The appellant filed suit in the chancery court against C. E Glidewell, Sr., Morris Glidewell, Federal Land Bank of New Orleans, La., Okolona National Farm Loan Association, Barrett Jones, and Seymour Jones, alleging that in the year 1899 her father, C. E. Glidewell, Sr., gave her certain lands described in the bill; that it was the custom and practice of C. E. Glidewell, Sr., when any of his children married, to give them either one thousand six hundred dollars or one hundred sixty acres of land; that she elected to take land, and that he agreed to give her the land and placed her in possession thereof, but did not execute and deliver to her a deed thereto--any written deed--although he promised to do so; that she had lived upon the said land for more than twenty-two years, being in actual, exclusive, and undisturbed possession thereof, had paid taxes thereon and improved said premises; that her possession of said land had been actual, open, notorious, continuous, and adverse as against all the world for a period of more than ten years; that within the past five or six months she had learned that Morris Glidewell, a nephew of complainant and grandson of the defendant, C. E. Glidewell, Sr., had made application to the Federal Land Bank of New Orleans, La., through the Okolona National Farm Loan Association, for a loan upon certain property, including the portion of land described in her bill, owned and possessed by the complainant; that immediately after she learned these facts she took steps to protect her property. The...