Sam v. Allen

• Decision Date: 18 February 1929
• Docket Number: 27701
• Citation: 152 Miss. 572,120 So. 568
• Court: Mississippi Supreme Court
• Parties: SAM v. ALLEN. [*]

120 So. 568

152 Miss. 572

SAM v. ALLEN. ^[*]

No. 27701

Supreme Court of Mississippi

February 18, 1929

Division B

Suggestion of Error Overruled March 4, 1929.

APPEAL from circuit court of Lawrence county, HON. J. Q. LANGSTON Judge.

Ejectment action by Webbie Lee Allen, by her next friend, Dink Bass against J. W. Sam, sued as S. J. Williams. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Brady, Dean & Hobbs, for appellant.

The legal effect of the lease from the adult heirs made the possession of appellant, for the two-year term, the possession of these owners, and, therefore, for the lease term he stood in their shoes, as to appellee, a cotenant. Therefore, it became necessary, under sec. 1843, Code of 1906, being sec. 1476, Hem. Code 1917, for appellee to prove an actual ouster of her by appellant or suffer a nonsuit. See Harmon v. James, 7 S. & M. 111; Corbin v. Cannon, 31 Miss. 570.

The most that can be said from plaintiff's standpoint is that there are circumstances from which an ouster might be inferred. On the contrary, there are many facts from which the only inference to be drawn is that ouster did not take place. Therefore, all these facts and circumstances should, at least, have been submitted to the jury. The court, however, took away from the jury its exercise of this prerogative.

G. Wood Magee, for appellee.

There is no ground for the appellant to complain about the judgment for the value of the timber he cut from the land. He had no contract with the minor cotenant who was the plaintiff in the court below, and the judgment was for the value of this cotenant's part of the timber. In all events appellant is liable to this minor for her interest in the timber. We submit that, inasmuch as the contract has long since expired and that appellant has now no further rights at all under said contract, that this appeal ought to be dismissed, and that the judgment of the lower court for the value of the timber taken by appellant ought to be affirmed and the judgment allowed to stand.

Brady, Dean & Hobbs, in reply for appellant.

In Cahn v. Wright, 108 Miss. 420, 66 So. 782, there was a suit for possession of land in an unlawful entry and detainer court, in which proceeding appellee obtained a judgment for possession of the land and compensation for use and occupancy thereof. The appellant appealed from this judgment after which appellee surrendered possession of the land. A motion was made to dismiss because there was no longer any controversy. This court there held as follows: "Assuming that the question here sought to be litigated can be raised by motion to dismiss, the motion must nevertheless be overruled, for the reason that possession of the land was not the sole question litigated in the court below. Appellant, as appears from instructions granted and refused, sought to recover, in addition to the possession of the land, compensation for the use and occupancy thereof, as she had the right to do under section 5049 of the Code. Motion overruled."

OPINION

ANDERSON, J.

Appellee, the owner of a one-fourth undivided interest in the northwest quarter of the northwest quarter, section 24, township 7, range 21 east, in Lawrence county, brought ejectment in the circuit court of that county against appellant, the lessee of appellee's three sisters, who owned the balance of the undivided interest in the land, and to recover the sum of three hundred and fifty dollars for the use and occupation of the land by appellant, and for waste alleged to have been committed by appellant in denuding the land of all its timber. The court directed a verdict for the appellee on the ejectment issue, and submitted to the jury the question of liability of appellant for use and occupation of the land, and waste. The jury returned a verdict in favor of appellee, assessing her damages at one hundred and twenty five dollars. Judgment was accordingly entered in favor of appellee, and, from that judgment, appellant prosecutes this appeal.

Appellee owned a one-fourth undivided interest in the land involved, while her three sisters each owned a one-fourth undivided interest therein. Her sisters leased the land to appellant for the years 1927 and 1928. By the terms of the lease, appellant obligated himself to redeem the land from its sale for state and county taxes; to clear, fence, and place the land in a good state of cultivation, and to pay the taxes thereon for the years 1927 and 1928; to repair the dwelling house; for which he was given the right to cut and remove and sell off merchantable timber on the land, except such as might be needed to repair the dwelling and fence the land--appellant to have the entire proceeds of the sale of the timber, and all the rents and profits from the land during the two-year period. Appellant went into possession of the land under the lease, and had been in possession of it for about fifteen months when this cause was tried. Appellant had, during that time, received and appropriated to his own use the entire rents and profits of the land, and denuded it of practically all of its timber, which he had sold, and appropriated the entire proceeds to his own use.

Appellee brought the action of ejectment in this case in her own name. She was a minor at the time the action was brought, and...