Smith v. Stanley

• Decision Date: 16 February 1931
• Docket Number: 29231
• Citation: 159 Miss. 720,132 So. 452
• Court: Mississippi Supreme Court
• Parties: SMITH et al. v. STANLEY

132 So. 452

159 Miss. 720

SMITH et al. v. STANLEY

No. 29231

Supreme Court of Mississippi

February 16, 1931

Division A

1. DESCENT AND DISTRIBUTION.

It is presumed that a person dies intestate.

2. DESCENT AND DISTRIBUTION.

Complainant in partition suit, claiming interest as tenant in common through ancestor, was not required to prove that ancestor died intestate (Code 1930, section 1410).

3 TRIAL.

Trial court must be advised of specific ground of objection to evidence, mere general objection being insufficient, unless evidence was in no event competent.

4 PARTITION.

Tenant in common is not entitled to allowance for fixtures and improvements which were practically worthless and without showing that value of premises was enhanced.

5 HOMESTEAD.

Deed signed by husband only, conveying part of homestead to wife and stepdaughter, held ineffective to convey interest to stepdaughter, though valid as between husband and wife.

6. ADVERSE POSSESSION.

Exclusive hostile possession necessary to support claim of adverse possession cannot arise where adverse claimant with parties denying claim occupied same house under same roof.

HON. D. C. McCooL. Chancellor.

APPEAL from chancery court of Yazoo county, HON. D. C. McCool, Chancellor.

Suit by Ella Stanley against Bettie Smith and others. From the decree rendered, defendants appeal, and complainant cross-appeals. Affirmed in part, and in part reversed and rendered, and cause remanded.

Reversed in part; affirmed in part, and cause remanded.

Ruth Campbell, of Yazoo City, for appellants.

A deed to a homestead signed only by the husband conveys no title to the grantee, when such grantee is not the wife.

Chatman v. Poindexter, 101 Miss. 499.

Under section 1587 of the Code of 1930 the burden was upon appellees to prove that the deed under which Ella claimed that Tempie Smith obtained title to an undivided one-fourth interest from Andrew Smith was executed, signed and delivered by Andrew Smith to Tempie Smith.

The measure of recovery for improvements should have been the amount that the value of the land was enhanced thereby, and not the cost of making or replacing the improvements.

Hicks v. Blakeman, 74 Miss. 459; Pritchard v. Hibber, 126 Miss. 386.

The burden of proving that Tempie Smith died intestate was upon appellees.

Barbour & Henry, of Yazoo City, for appellee.

Under section 1549 of Hemingway's Code of 1927, the defendant in an ejectment proceeding is entitled to credit for the value of all permanent and valuable improvements made by the defendant on the land, the defendant being entitled to such compensation for improvements or taxes if he claimed the premises under some deed or contract of purchase acquired or made in good faith. This statute is binding on the chancery court.

Pritchett v. Hibble, 126 Miss. 379; Prichett v. Stevens, 126 Miss. 221.

The bona fide possessor of lands entitled to improvements is one who not only supposes himself to be the true owner, but who is ignorant that his title is contested by another claiming a better right. The want of good faith cannot be inferred merely because the defect of title could have been ascertained by an examination of the records.

Cole v. Johnson, 53 Miss. 94; Tinner v. Brown, 98 Miss. 378.

Where a party receives a deed to an individual interest in a homestead and said deed is void because not signed by wife, it is sufficient for color of title and if the grantee enters into possession of said property, although such possession is not exclusive and holds same for twenty years, and her possession is acquiesced in by both the husband and wife, such grantee acquires title by adverse possession.

Avera v. Williams, 81 Miss. 714; Darrill v. Dodds, 78 Miss. 912; Blair v. Russell & Co., 120 Miss. 108.

It was not the duty of appellees to prove the negative fact that there was no will.

OPINION

McGowen, J.

Ella Stanley, the appellee, filed a petition for partition of land consisting of a house and lot in Yazoo City, alleged to be owned by her and the appellants, heirs of Andrew Smith as tenants in common, and alleged that she owned a five-eighths interest therein, and that the defendants owned a three-eighths interest; and she further set up a claim for taxes and improvements thereon. The appellants, Bettie Smith and others, as children of Andrew Smith, filed an answer denying that appellee owned any interest in the lands in controversy, but asserted an absolute title in themselves and denied the account for improvements and taxes.

During the progress of the trial the appellee amended her bill so as to charge that she claimed a one-fourth interest by virtue of a deed, executed in 1907 and recorded in the chancery clerk's office in the county, made by Andrew Smith, in which deed he conveyed a one-fourth interest to Ella Stanley and a one-fourth interest to Tempie Smith, who was the mother of Ella Stanley and the wife of Andrew Smith. In the amendment she further alleged that her mother died in 1927 owning a three fourths interest in the house and lot, and that she took, by inheritance, three-eighths interest from her mother. She further alleged that she was entitled to hold a one-fourth interest conveyed to her by Andrew Smith by adverse possession for more than twenty years.

When the substance of this amendment was dictated in the record, the court offered to continue the case in order to permit appellants to file their answer to the amendment. It was then agreed that the trial might proceed, and that the amendment might be filed after the trial, and thereupon counsel for appellants said: "I am willing to proceed with the case by denying everything, and when complainant has filed the amendment, then I will file my answer denying everything." Subsequent to the adjournment of the court Ella Stanley filed her amendment to her original petition in line with the statement made to the court, but sometime subsequent to that the appellants filed an answer denying everything, and in addition thereto filed a plea of non est factum as to the deed executed by Andrew Smith to his wife, Tempie, and his stepdaughter, Ella Stanley, by which deed he undertook to convey his one-half interest--one-fourth thereof to his wife, Tempie, and one-fourth to Ella Stanley. After the trial proceeded, the court took the case under advisement, and some months subsequent to the filing of the answer by appellants he decided the case and entered a decree in vacation, by agreement of the parties, in which he decreed that Ella Stanley owned, as a tenant in common, a three-eighths interest, and the appellants & five-eighths interest, and he further decreed appellee, Ella Stanley, one hundred fifty dollars as a charge on the property for improvements.

The proof showed that Andrew Smith and Tempie Smith were married and long prior to 1907 the owners of this land conveyed the property to Andrew and Tempie Smith, by which deed they became tenants in common to the land, each owning a one-half interest. From the time of the purchase until the death of Andrew the property was occupied as a homestead. In 1907 Andrew executed a deed, as above stated, to his wife and stepdaughter. The wife did not join in the deed conveying a one-fourth interest to Ella Stanley in the homestead property then occupied by them as a homestead and ever afterwards so long as they both lived. Such other facts as are necessary will be stated in connection with the opinion. Appellants here contend that in the state of the pleadings at the time of the trial the complainant in the court below, Ella Stanley, failed to prove any title in the lands, her title being denied specifically by the answer. The testimony was that Ella Stanley was the daughter of Tempie Smith, and that Tempie Smith died seized and possessed of her interest in these lands, and that Ella Stanley, and Andrew Smith, daughter and husband, respectively,...