Smith v. Whittington , 112 Miss. 759 ( 1916 )

Smith, C. J.,

delivered the opinion of the court.

This is a suit in ejectment wherein in the court below appellants were plaintiffs and appellee was defendant. In their bill of particulars or abstract of title filed pursuant of a demand therefor appellants deraign title-through their father, ~W. C.-Smith,- who, they claim,, acquired the land in controversy by adverse possession and died leaving his widow, the mother of appellants,, now dead, and ■ appellants as his only heirs at law. It appears beyond question from the cross-examination of the witnesses introduced by appellants that W. C. Smith acquired no title to the land by adverse possession, but that his wife, A. J. Smith, purchased it along with other lands from F. C. Huff, who put her in possession thereof, but failed to include it in the description of the- land contained in the deed executed by him to her, she remaining in possession thereof claiming it as her own-for-more than ten years. In appellee’s bill of particulars or abstract of title an attempt was made to dera-ign title to the land by mesne conveyances from Mrs. Smith, but the same error appears in the description of the land in the deed by which she parted' with the title thereto' as in-that-by which she acquired it. Appellants ■ rested their case without then or thereafter-requesting leave of the court to. amend their bill of particulars -to correspond with the proof. No evidence was introduced >by appellee, but at his request that -introduced by -appellants was ■ excluded, and the jury peremptorily instructed to find for him.

The contention ’ óf appellants is that it is immaterial whether title to-the land was in their father or mother; for they became the' owners there’of by inheritance in •either case. This argument overlooks the effect of section 1827 of the Code, which is to- confine the plaintiff in ejectment to a recovery upon the title outlined in his bill of particulars.''

Affirmed.