Snell v. Fewell

• Decision Date: 18 April 1887
• Citation: 1 So. 908,64 Miss. 655
• Court: Mississippi Supreme Court
• Parties: ROBERT SNELL v. MAGGIE LEE FEWELL

1 So. 908

64 Miss. 655

ROBERT SNELL v. MAGGIE LEE FEWELL

Supreme Court of Mississippi

April 18, 1887

APPEAL from the Chancery Court of Lauderdale County, HON. SYLVANUS EVANS, Chancellor.

In 1885 Mrs. Maggie Lee Fewell filed this bill against Robert Snell to remove clouds cast upon her title to certain land by reason of a claim thereto by the defendant. The bill alleges that in August, 1859, Robert Snell, Sr., father of defendant conveyed whatever claim he had to the land in question by a contract or memorandum in writing for a valid consideration to J. H. Gibbs, and that the purchase-money was paid; that this contract or memorandum is now lost; that in 1861 J. H. Gibbs conveyed by deed this land to D. H. Trott, and this deed is now lost or destroyed; that in 1862 D. H. Trott conveyed this land by deed to Mrs. Fannie G. Harper, and that this deed is now lost; that in 1866 Trott executed to Mrs Harper another deed in lieu of the above referred to as lost and this latter deed is duly recorded; that in 1869 or 1870 Mrs. Fannie G. Harper died, leaving this land by will to R Y. R. Chadwick for his life, remainder over to complainant and that in 1871 R. Y. R. Chadwick died. The bill denies that Robert Snell has any claim whatever to the land, and asks that his claim be cancelled. This bill was not sworn to, nor did it waive an answer under oath.

The defendant, Robert Snell, Jr., answered, denying on information and belief that the several conveyances alleged to have been lost ever existed or were ever executed, and making his answer a cross-bill in which he set up his title through his father, Robert Snell, Sr., and asked that his title to the land be established.

At the hearing the depositions of Gibbs and Trott were introduced to establish the allegations of the bill, but were objected to by the defendant.

The effect of the evidence on the points in dispute is sufficiently set out in the opinion of the court.

The Chancellor found for the complainant, and decreed that the claim of defendant be cancelled, and the latter appealed.

Decree affirmed.

Dial & Witherspoon, for the appellant.

1. Gibbs and Trott are incompetent as witnesses to show that the transfer of complainant's claim was before the death of Snell. To permit either of them to testify is to ignore the statute, whose policy is to seal the lips of a living witness to a transaction when the other party to it is dead. The competency of the witness to testify against the estate of a decedent depends upon whether he transferred his claim before or after the death of the decedent. If the transfer was before, the witness is competent. To allow the witness to testify that he transferred his claim before the death of the decedent will let in the very evils which the statute intended to guard against, for if a witness is so unprincipled as to detail the "transaction" incorrectly (and the statute is based on that assumption), he would certainly, in order to be permitted to testify, say that he transferred his interest before the death of decedent.

2. Let us examine first the proof as to the existence of the lost papers. Before entering into this examination, however, we call the attention of the court to two observations. First, the bill is not sworn to, and does not waive an answer under oath, and the answer denies the material allegations of the bill and is sworn to. Hence the bill is not sustained unless by the testimony of two witnesses or of one witness and corroborating circumstances. Code 1880, § 1949. In the case of Nichols v. Daniels, W. 224, it is stated that the "corroborating circumstances must be 'strong.'" See Backhurts v. McGrow, 2 Cush. 134. The same rule prevails even when the denial of the answer is upon information and belief. McGehee v. White, 2 G. 42; Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500. The only testimony on the existence, loss, and contents of the pretended contract between Snell and Gibbs is that of Gibbs himself, and conceding, for the sake of argument, that he does so testify, it is manifestly insufficient to satisfy the rule of evidence in such cases.

3. The evidence utterly fails to show the execution of proper conveyances in the transfer by Gibbs to Trott and Trott to Mrs. Harper.

4. Whatever possession Gibbs, Trott, and Mrs. Harper had of the property in dispute was permissive and not adverse.

Jno. W. Fewell, for the appellee.

1. It is objected that neither Gibbs nor Trott were competent witnesses. I will not argue that proposition to the court; it is absurd both in the light of the statute and the decisions of this court.

The statute does not disqualify either witness, either by its letter or by its spirit. Neither has any "claim" against the estate of Snell and neither acquired any "claim" by assignment since his death. Even if there were any doubt as to the non-applicability of the statute to the case those doubts have been settled by the decisions of this court.

2. As to the adverse possession and the alleged title by the statute of limitations: The adverse possession is denied. But we have proven that Gibbs was in possession under claim of title as early as 1859, and Trott from that year to 1862, and Mrs. Harper from then till her death, and complainant's father at the time of his death, on the premises in 18 , and that complainant is now in possession. Further, Trott and Gibbs both testify that Snell put them in possession and that he was their neighbor, and Trott testifies that Snell was a guest in his--Trott's--house, on the premises. The statute began to run then...