Smith v. Cunningham

• Decision Date: 04 November 1901
• Citation: 79 Miss. 425,30 So. 652
• Court: Mississippi Supreme Court
• Parties: FRANK B. SMITH v. JAMES M. CUNNINGHAM ET AL

30 So. 652

79 Miss. 425

FRANK B. SMITH v. JAMES M. CUNNINGHAM ET AL

Supreme Court of Mississippi

November 4, 1901

FROM the chancery court of Yazoo county. HON. HENRY C. CONN Chancellor.

Cunningham and others, appellees, were complainants in the court below Smith, appellant, was defendant there. The suit was one to remove clouds from the titles to lands. From a decree in favor of the complainants the defendant appealed to the supreme court.

Appellees claimed title to the land in controversy by inheritance from their father, M. R. Cunningham, and contend that their father, in 1843, acquired the land by deed from one Wyatt Smith, who acquired the same from one Brittain Smith, the patentee from the United States government; that soon after the acquisition of the land by their father, he, with their mother, moved on the same, and improved it by erecting a dwelling on it, cultivating it, and that they were in open and notorious possession of it, and claimed it as the land of their father; that their father died in 1852, and that complainants, with their mother, continued to occupy the land as a homestead until the marriage of their mother to said Brittain Smith, the father of appellant, in 1854; that after the marriage of their mother to Brittain Smith she removed from the land, but continued to exercise ownership over the same by renting it, keeping the place in repair, and paying the taxes thereon; that the exercise of ownership was made with the knowledge of Brittain Smith, who never claimed the land after the marriage with complainants' mother, or after the deed made to their father by Wyatt Smith; that in 1865 Brittain Smith died, and that their mother moved back on the land, and continued to live on the same, claiming it under the deed to their father, until her death, in 1897 that the title to said land was never in their mother, and the only interest which she had was a dower interest, which under the laws in force at the time of their father's death, amounted to only one-third interest for life, and upon her death the same reverted to complainants. Appellant claims title to the land through his father, Brittain Smith, and by adverse possession for more than ten years. Appellant's contention is that his father, Brittain Smith, was the holder of the record title as patentee from 1843 till his death, in 1863; that his father, personally or through children or widow, has been in possession from issuance of patent till the beginning of this suit, except for the short interval of a few years while Cunningham occupied it. The opinion contains a further statement of the facts.

Affirmed.

Campbell & George and Noel & Pepper, for appellant.

This being a suit by the appellees to cancel as a cloud the title held and asserted by appellant, of course, the appellees must show a perfect legal or a perfect equitable title in the lands. This they undertake to do in two ways.

1. They undertook to establish the existence and prove the contents of a lost deed conveying the lands to their ancestor, Cunningham. It is well settled in law that to establish a lost deed the former existence and due execution, sealing, and delivery of the same must be proven to the satisfaction of the court, and the burden of proof is upon the party claiming under the lost instrument. 13 Am. & Eng. Enc. L. (1st ed.), 1088; Edwards v. Noyes, 66 N.Y. 125; Snider v. Kennedy, 56 Wis. 249. We confidently submit to the court that the testimony in this case falls far short of establishing the former existence of the asserted deed. It does not prove its execution, sealing or delivery, or the loss of the same. The contents of the deed are not sufficiently proven to form the basis for a judicial adjudication in favor of appellees. All that was proven was mere hearsay; it was indefinite and uncertain, and all of the appellant's evidence on the subject should have been excluded by the court below. Potts v. Coleman (Ala.), 5 So. Rep., 780; Logan v. Garner, 20 Ala. 625; McBurney v. Cutter, 18 Barb. (N. Y.), 203; Wakefield v. May, 41 Minn. 344, (S.C. 43 N.W. 71). These authorities establish beyond any controversy that the due execution of a lost deed must be first proven, and that the evidence must be clear and certain. Clear and certain evidence, we confidently assert, was not produced in this case to show the execution of the lost instrument or its contents.

2. The appellees (complainants) further sought to show title in themselves by adverse possession, but this, we confidently assert, they failed to do. The record title to the land was in Brittain Smith, the ancestor of appellants. He is not shown to have ever parted with the title. It is true that Cunningham and his wife were in possession of the land at one time, and that Cunningham died in its possession, but it is further shown that Cunningham never paid for the land, and that shortly thereafter the widow of Cunningham married Brittain Smith, the patentee, who had title, and thereafter the title was in the possession of Brittain Smith, and his possession will be referred to his title. It may be said that the widow of Cunningham had a dower interest in the land, but it was a chose in action which inured to her subsequent husband (Brittain Smith) when he married her, and this life estate became vested in Brittain Smith when he married the doweress, and he became thereby invested with the dower interest as well as the reversion, which was never out of him. There is nothing in the law of dower, as formerly administered in this state, adverse to the interest of Brittain Smith. Cunningham's wife could not have dower in the land at the date of his death...