Shepherd v. Cox

• Decision Date: 14 April 1941
• Docket Number: 34459.
• Citation: 1 So.2d 495,191 Miss. 715
• Court: Mississippi Supreme Court
• Parties: SHEPHERD v. COX et al.

1 So.2d 495

191 Miss. 715

SHEPHERD v. COX et al.

No. 34459.

Supreme Court of Mississippi

April 14, 1941

Patterson & Patterson, of Calhoun City, and Creekmore &amp Creekmore, of Jackson, for appellant.

W J. Evans, of Calhoun City, B. C. Adams, of New Orleans, La and David Sanderson, of Calhoun City, for appellees.

ALEXANDER Justice.

Suit at law was begun in ejectment by appellant, who, after transfer thereof to the Chancery Court, filed his bill against C. W Cox, Eugene Robertson, David Sanderson, trustee, and the Federal Land Bank of New Orleans. Complainant sought possession of twenty acres in the S. 1/2 of fractional Section 4, T. 13, Range 2 W., in Calhoun County, Mississippi, the cancellation of certain instruments under which defendants asserted title, and for damages and mesne profits.

A deraignment of the title thereto shows a common source, complainant asserting title under deed of a Commissioner of the Chancery Court dated November 21, 1890 and the defendant, Cox, under a tax deed dated March 3, 1890. The defendant Robertson was eliminated from the case under his special demurrer. Cox claims ownership under a deed from the Federal Land Bank in 1936. The Land Bank had acquired same through trustee's deed after foreclosure of deed of trust in its favor given by the said Robertson. It seems to be conceded that the paper title to said property is in the defendant, Cox. Complainant rests his claim upon adverse possession.

Fractional section 4 contains about 156.36 acres, and is L-shaped and lies to the north and east of Section 1, T. 24, R. 8 E. The N. 1/2 of Section 4, approximating eighty acres, is known as the Cooner lands and is not involved in the controversy. Nor is any other part of said section except the E. 1/2 of the remainder of the north portion of Section 4 lying north of said Section 1 and south of the Cooner land.

As in all suits of this character, the evidence is extensive, conflicting, and confusing. It appears clear, however, that complainant has exercised such dominion over part of the land in suit as would establish title thereto by adverse possession, and we so hold. It remains to adjust such fact to the legal principles involved. Complainant's adverse possession of part of said land under the color of title furnished by the Commissioner's deed in 1890 would give him title to the extent of the calls of said deed (Hanna v. Renfro, 32 Miss. 125; Wilson v. Williams' Heirs, 52 Miss. 487; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Evans v. Shows, 180 Miss. 518, 177 So. 786) unless there are conflicting superior claims by Cox, who holds a superior paper title. Such claims, however, would have to depend upon such assertions of ownership as amounted to an adverse possession by defendant of a part of such lands. The constructive possession of the whole by adverse possession of a part would be superior in him who held the superior title. Railway Co. v. Buford, 73 Miss. 494, 19 So. 584; 2 C.J.S., Adverse Possession, § 193, page 798.

The complainant claims under the adverse possession by himself while the defendant Cox, who bought the land in 1936, bases his claim of adverse possession upon the acts of his predecessors in title. Such acts related almost exclusively to the payment of taxes and to certain transactions by sale and mortgage, common repute, and other evidence circumstantial in its nature. In view of the long, continuous occupancy by complainant under color of title to the entire S. 1/2 of fractional Section 4, his claim now to only...