Goff v. Cole , 71 Miss. 46 ( 1893 )

Woods, J.,

delivered the opinion of the'court.

The contention of the counsel for appellant is correct, and the decree of the court below is erroneous to the extent complained of. Inez Cole was not entitled to partition, on the state of facts disclosed in the record, of the 347 acres of land conveyed away to G. W. Joiner and Stephen Brown by George Watts, attorney in fact of Benjamin F. and Elizabeth J. Martin, in the year 1873. These lands are not shown by any evidence before us to have ever been reconveyed to Elizabeth J. Martin, through whom appellee claims title. It is quite true, as counsel for appellee states in support of his position on this point, that the witness, Barry, does depose and say (referring to the lands generally in Sunflower county owned by the Martins): “ He [Martin] sold it to a man named Burch. He afterwards took it back from Burch, and sold it two or three times and took it back. He never could make it stick.” But this statement is not altogether accurate— that is to-say, it is incorrect as to these 347 acres sold and conveyed by George Watts, the attorney in fact of B. F. and E. J. Martin. From the record, taken as a whole, there is ground for conjecture that these 347 acres were re-acquired, in some undisclosed way, by Elizabeth J. Martin; but there is no evidence on which to rest a well-grounded belief that such was the fact. So far as appears by this record, the title yet lodges where it was placed by George Watts, attorney in fact, in 1873.

Equally unsatisfactory is the effort to maintain the right to partition of these particular 347 acres by Inez Cole on the ground of notorious adverse possession, for more than ten years, in Elizabeth J. Martin’and her heirs. The evidence as to possession is almost wholly the merest hearsay. And it is, moreover, so vague and indefinite as to forbid its application specifically to these lands whose title is disputed. The full extent and effect of the evidence is that Benjamin E. Martin said he was in possession of the Sunflower lands. What the nature and character of these 347 acres — whether wild or in cultivation, whether improved and inhabited or part of a wilderness — or what the nature and extent and character of the supposed possession, is not discoverable from the testimony taken in the case.

This is not a case where the defendant is seeking to defeat the action by showing an outstanding title in some third party. It is a case in which, as the proofs now stand, he seeks, and successfully, to show that the person demanding partition of certain lands has no interest whatever in them. There was no estate in Elizabeth J. Martin remaining after the "Watts conveyance in 1873, and it is vain to suppose a tenancy by curtesy in lands in which the wife had no estate. The cases of Griffin v. Sheffield, 38 Miss., 359, and Day v. Cochran, 24 Ib., 261, are sound authorities, for the position of appellee’s counsel, but the questions involved in those cases are not involved here. We repeat, the controversy here is as to the title to 347 acres of land. Appellee seeks partition and derives title through her grandmother, Elizabeth J. Martin. The appellant denies that the appellee has any title whatever, and shows that Elizabeth J. Martin conveyed the lands twenty years ago, and never re-acquired title. The case is widely different from the case of Martin v. Tillman, 70 Miss., 614.

Reversed and remanded.