Sistrunk v. Majure

• Decision Date: 13 November 1939
• Docket Number: 33814
• Citation: 192 So. 5,186 Miss. 814
• Court: Mississippi Supreme Court
• Parties: SISTRUNK v. MAJURE

192 So. 5

186 Miss. 814

SISTRUNK v. MAJURE

No. 33814

Supreme Court of Mississippi, Division B

November 13, 1939

Suggestion Of Error Overruled January 8, 1940.

APPEAL from the circuit court of Neshoba county HON. PERCY M. LEE Judge.

Action of unlawful entry and detainer by William W. Majure against Millard Sistrunk for the possession of certain lands. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

A. B Amis, Jr., of Newton, for appellant.

As we read the history of the action of forcible or unlawful entry and detainer, there was no such civil action known to the common law. Under the English Common Law there was a criminal action akin to our statutory civil action, but as a civil proposition, under the English Common Law, an owner or person deprived of possession of real property had the right by force of arms to retake possession.

11 R C. L. 1136, paragraphs 2 and 3; 11 R. C. L. 1137, par. 4, under title: "Forcible entry and detainer" says: "The general purpose of the statutes of forcible entry and detainer, both in England and in this country, is that regardless of the actual condition of the title to the property, the party in peaceable and quiet possession shall not be turned out by strong hand, violence or terror."

The lawmakers of this state have seen fit to adopt into our statutory law the chapter on unlawful entry and detainer as Chapter 69, Code 1930. They by so doing then enact and adopt statutes in derogation of the English Common law and such statutes being so in derogation of the Common Law must be strictly construed, and one bringing an action under the statute must come within the statute.

26 C. J. 810; Spears v. McKay, Walker 265; Murf v. Mallpin, 113 Miss. 670; Robinson v. Boggan, 97 Miss. 27; Owen v. Monroe County, etc., 77 Miss. 500; 26 C. J. 843.

So ever since the adoption of Chapter 56, Hutchinson's Code, the rule in Mississippi has been different from the common law rule.

Section 3456, Code 1930; Hollman v. Bennett, 44 Miss. 322; McCorkle v. Yarrell, 55 Miss. 577.

This court likewise in construing Section 3456, Code 1930, and/or its forerunner has consistently held as was announced in the case of Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383: "It is obvious that the appellees never were in actual possession. Hence they could not have been deprived of the possession in anyway. It is equally clear that there was no 'contract, express or implied' as to the possession between appellants and appellees, 'after the expiration of which the appellants held over.' This action lies only in the cases specified in the statute."

Taylor v. Orlansky, 92 Miss. 761, 46 So. 50, 136.

Before this remedy can be invoked it must be shown that the party seeking to invoke it has been deprived of the possession of the land sought to be recovered under it.

Robinson v. Boggan, 97 Miss. 27; Glenn v. Caldwell, 74 Miss. 49, 20 So. 152; Taylor v. Orlansky, 92 Miss. 761, 46 So. 50, 136.

The appellee did not contend or attempt to show that the appellant was depriving him of possession of the land by force, intimidation, fraud, stratagem, or stealth and so the case can't be laid there. The appellee did not contend that appellant was his tenant, vendee, vendor, mortgagor, or grantor. The appellee did not contend that he was appellant's landlord, vendor, vendee, mortgagee, or trustee or cestui que trust. Maybe, however, he contended that he was the "other person, " as referred to in the statute. What difference though would that make unless and until he first shows the contractual relation as shown and required by the statute?

In order to sustain a recovery, plaintiff must show all the facts which are necessary to entitle him thereto, defendant not being required to offer any proof until plaintiff by the weight of his evidence has shifted the burden of defense on defendant.

26 C. J. 857, par. 122.

The whole proof as offered is to the effect that the appellee has a patent to the land, the appellant is in possession of the land, and the appellant deprives the appellee of possession of the land. Is that sufficient proof? Clearly not.

This court has consistently held prior possession of the plaintiff as being necessary, or else some contractual relation to exist as between the parties or their privies.

Glenn v. Caldwell, 74 Miss. 49, 20 So. 152; Spears v. McKay, Walker 265; Murf v. Mallpin, 113 Miss. 670; Robinson v. Boggan, 97 Miss. 27; Owen v. Monroe County, etc., 77 Miss. 500; McCorkle v. Yarrell, 55 Miss. 577; Taylor v. Orlansky, 92 Miss. 761; Cogburn v. Hunt, 56 Miss. 718.

The Legislature realized after the opinion in Cogburn v. Hunt, 56 Miss. 718, that a purchaser of a tax title under the then existing law could not bring the action of unlawful entry and detainer and to cure this and to encourage the purchase of tax titles and tax forfeited lands passed Section 538, Code 1880, likewise realizing the fact that the sovereign had no authority to bring such action it passed Section 897, Code 1880.

Thereafter and in October, 1884 this court in construing Sections 538 and 897, Code 1889, in the case of Crittenden v. Leavenworth, 67 Miss. 32, said: "Section 897 of the Code of 1880 declares that the state and each county shall be entitled to the benefit of all actions to which individuals are entitled in a given state of case and secures to the state the right to bring unlawful detainer in the state of case provided for by Section 538, and its vendee may bring this action as the state could."

In May, 1896 Judge Whitfield wrote his dissenting opinion in the case of Glenn v. Caldwell, 74 Miss. 49, and in April 1908 this court in the case of Taylor v. Orlansky, 92 Miss. 761, 46 So. 50, 136, adopted the holding in the dissenting opinion in the case of Crittenden v. Leavenworth, supra.

Since then it has been recognized that a purchaser at a tax sale could bring the action, but always he was limited to the provisions as fixed by Section 3457, Code 1930.

Section 2788, Code 1930, contemplates no trouble in the purchaser procuring possession and says in effect that if he does procure possession and remain in possession for three years then title is good.

Not so, however, with Section 3457, Code 1930. It straight out contemplates and provides for a suit.

McLemore v. Scales, 68 Miss. 47, 8 So. 844.

The question then arises as to whether or not this is a statute of limitation covered by Section 104, Constitution 1890. We think not.

Tallahatchie County v. Little, 93 Miss. 88, 46 So. 257.

Clearly, if that be not a statute of limitation then the one-year provision in Section 3456, and the one year after two years provision in Section 3457, Code 1930, would not be a statute of limitation under Section 104 of the Constitution.

Clearly the right of action by unlawful entry and detainer is a statutory action in derogation of the common law. By the statute a right of action is created and the right to bring or enforce is fixed within a given time.

L. & N. R. R. Co. v. Dixon, 168 Miss. 14, 150 So. 811; Warren County v. Lamkin, 93 Miss. 123, 46 So. 497.

It seems clear to us that this action was and could only be brought if at all under Section 3457, Code 1930.

It is our contention that the state or its patentee has the right to bring unlawful entry and detainer as to tax forfeited lands but only within one year after two years from the date of sale. In the case at bar the property sold for taxes in April 1932 and so far as this record is concerned, the appellant was then on the property as a tenant of the then owner of the property, and the party to whom assessed at the time of such sale, and has continuously remained thereon.

If Section 3457 means anything at all, and if the opinions of this court as heretofore rendered mean what they say, then the right to bring this action was barred on April 4, 1935.

Evidently appellee overlooks the universal rule that the burden is on the plaintiff to make out a case before the defendant is required to offer any proof at all, and the like rule that in an unlawful entry and detainer case, the defendant is not required to plead in writing.

Section 3465, Code 1930.

We take the position that it makes no difference how the appellant came into possession, whether as owner, tenant, squatter or trespasser, the fact nevertheless remains that he was in the actual and peaceable possession of the property involved at the time this suit was filed, and that fact was fully proven by the appellee. Having proven the appellant in possession it was encumbent upon the plaintiff to establish his right to possession as against the defendant, and to make out a case under the statute before the defendant was required to make any proof whatsoever.

Title to the property is not involved and cannot be brought into the case at all. This court has even gone so far as to hold that unlawful entry and detainer would not lie as against a squatter, since in the case of McCorkle v. Yarrell, 55 Miss. 576, this court held that one who claimed the right of possession under a homestead grant from the United States could not sustain the action as against another found in possession. Clearly in that case the defendant being in possession of government lands was a squatter thereon, but even so he was in possession and the action therefore would not lie as against him.

The fact that one has a patent from the state does not offer indisputable proof of ownership of the lands therein described.

While the question is not here involved, may we in passing say that it is our contention that the tax sale was wholly void and that therefore the state took no title and having no title could give no title and therefore no title...