Breland v. O'Neal , 88 Miss. 449 ( 1906 )

Whiteield, C. J.,

delivered the opinion of the court.

The instrument executed by Catherine Taylor to James Cooper, of date July 29, 1867, conveys, as the learned counsel for the appellant contend, nothing but a life interest, so far as its terms are concerned; and we further agree with counsel for the appellant that, if the case turned upon the mere construction of this instrument, all the testimony as to what it means would be incompetent as varying, altering, or modifying the terms of a written instrument. But it is made perfectly certain by the overwhelming weight of the testimony that Catherine Taylor knew that Cooper claimed the property as his own; that she intended to give him the fee, as she stated to several witnesses; and that, with full knowledge of his adverse claim, she never asserted any right of her own to the land, but abandoned it, and moved off and built herself a house elsewhere, and died recognizing Cooper’s claim to the land. The testimony shows Cooper’s adverse claim to the land for from ten to twelve years, and the statute of limitations ran in favor of Cooper and those claiming under him for a very much longer time. Whatever, therefore, the deed, taken by itself as if it were the whole case, might import, it must certainly be true that if Miss Taylor understood the deed to convey a fee; understood Cooper to claim the fee, and always acquiesced in that claim, this testimony is competent for the- purpose of characterizing Cooper’s possession as adverse, and as recognized as adverse by Miss Taylor. If, to put it differently, there were nothing .in this case but the instrument referred to, and both parties claimed under that, leaving nothing but the construction of the instrument for the court, appellant should prevail; -but, when this testimony is viewed as characterizing the possession of Cooper as adverse, and. Miss Taylor’s conduct as conduct acquiescing in and recognizing that adverse possession, it is clearly competent for that purpose. May not one make a deed which in fact, according to its terms, conveys but a life estate, and yet, notwithstanding the execution of such an instrument, actually have meant to give a fee, enabling the grantee to claim adversely from the date of the instrument ? And may not evidence be introduced to show such adverse possession, asserted by the grantee and acknowledged by the grantor ? Undoubtedly; and that is this case. If we had nothing but the instrument in this case, and its construction, and testimony offered, not to show adverse possession, but to show that the instrument conveying a life estate was really meant to convey a fee, such testimony would be clearly incompetent. But where the purpose of the parol testimony is not to vary or alter the character of the estate as conveyed by the instrument, but to show that, notwithstanding the.instrument, adverse possession was asserted on one side and acquiesced In on the other, such testimony for the last purpose is manifestly competent. We think the testimony shows title by adverse possession in appellee.

The decree is affirmed.