Buie v. Cloy , 127 Miss. 719 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

This is an action of ejectment, in which the appellant seeks to recover from the appellee certain land lying partly in section 15 and partly in section 16, township 6, range 4 east. The appellee pleaded not guilty, but at the trial was permitted to amend her plea,„so as to disclaim both title and possession to the land in section 16. No judgment was rendered for the plaintiff for the recovery of the land in section 16, but the cause proceeded to trial on the issues made by declaration and amended plea, and at the close of the evidence the jury were instructed to return a verdict for the appellee for the land in section 15, and for the appellant for the sum of fifty dollars rent for the land in section 16; it appearing from the evidence that the appellee was in possession thereof, and counsel having agreed on fifty dollars as rent due by her therefor.

The errors'assigned are: First, the failure of the court below to render a judgment for the appellant for the recovery of the land in section 16; second, the granting of the instruction charging the jury to return a verdict for the appellee for the land in section 15.

The land in section 15 sought to be recovered by the appellant is described in her declaration as “that part of the Southwest quarter of section 15, township 6, range 4 east, west of the Homochitto river,” followed by a more particular description by metes and bounds. The Homochitto river traverses section 15 in a southwesterly direction, and when the section was surveyed and platted by the government in 1806 it crossed the line between sections 15 and 16 about twenty-one chains north of the southern corner of the two sections. Since that time the river has gradually receded to the east, and now does not enter section 16 at all, but crosses the southern boundary of section 15 either at its southwest corner or a short distance east thereof.

The appellant offered in evidence a chain of deeds, beginning in 1852 and ending with one to James B. Harrington, executed in November, 1882, conveying a body of contiguous land, a part of which is described as “all that part of section 15, township 6, range 4 east, lying west of the Homochitto river,” and a decree of the court below, rendered in November, 1899, in the case of Audrey Buie, by next friend, v. Kate C Harrington, confirming a report of commissioners dividing certain land into three parts, one of which was set apart to the appellant by the following description :

“That part of the Northwest quarter and that part of the Southwest quarter of section 15, township 6, range 4 east, west of the Homochitto river, and hounded on the north and east by a line beginning at the Northwest corner of section 15; thence east on section line between 10 and 15, nine chains to the public road, whence a pin oak, forty inches in diameter; thence South forty-five degrees West, with the road to a red oak marked XIII; thence South 42 feet Bast twenty-eight and seventy-five one-hundredths to the Homo-chitto river; thence down the meanderings of the river to the section line between 15 and 16; and that part of section 16, township 6, range 4 east, except the Southwest quarter of the Southwest quarter, bounded on the north by a pine, beginning at a point on the section line between ■ 16 and 17, twenty chains south of the section corner of 16; thence south 45 degrees East forty-one and fifty-one hundredths chains to the public road; thence east with the beating of the road to the top of the hill known as Rocky Point, whence a red oak marked XIII; thence thirteen and fifty one-hundredths chains to the section line between 9 and 16; thence east on section line eight chains to the section corner of 9,10,15 and 16, and East half of the Northeast quarter, section 17, township 7, range 4 east; and East half of the Northwest quarter and that part of the Northeast quarter of section 21, township 6, range 4 east, west of the Homo-chitto river, containing six hundred eighty acres.”

What connection this partition proceeding has with the deed to James B. Harrington does not clearly appear. The course of the Homochitto river through the Southwest quarter of section 15 in 1852 is not disclosed by the evidence, but its course in 1899, when the decree in the cause of Buie v. Harrington was rendered, is shown by the evidence to have been a short distance west of where it now runs.

The appellant then introduced evidence from which the jury would have been warranted in believing that she entered into possession of the land described in the decree immediately after its rendition, put in cultivation a portion, and a fence around all of that here in controversy; that after she had been in the actual adverse occupancy thereof —that is, of the land west of the bed of the river as it was in 1899 — for more than ten years she was dispossessed by ’the appellee, a short while before the beginning of this suit.

The appellant’s possession of the land in controversy was contradicted by evidence for the appellee. The appellee offered and was permitted to introduce parol evidence to the effect that the reference in the report of the commissioners in the case of Blue v. Harrington to the Homochitto river was intended by them to refere to a former, and not to the present, bed of the river.

The appellee introduced a chain of deeds, beginning in 1878, through which she claims title to the land, and in which land Dn the west side of the Homochitto river in section 15 is attempted to be conveyed by the following description :

“Also a portion on the west side of the river in 15, caused to be on the west side by changing of the river.”

Neither the appellee nor those under whom she claims have been in actual possession of any of the land in section 15 west of the river. Neither the chain of deeds through which the appellant claims title to the land nor that through which the appellee claims connects with that of the government, but their counsel agreed at the trial that title had been divested out of the government. It does not appear from the record that the appellant requested the court below to render a judgment for her for the recovery of the land in section 16; consequently she cannot complain that such judgment was not rendered, but, since the judgment of the court below must be reversed, because of the granting of the peremptory instruction to appellee, a recovery for this land can be awarded on the return of the cause to the court below.

Leaving out of view any right that either of the parties hereto may or may not have under the rules governing possession under color of title, the right to the possession of the land in section 15 should have been submitted to the jury, because of the conflict in the evidence with reference to the appellant’s actual adverse occupancy thereof.

Reversed and remanded.

Holden, J., took no part in the decision of this cause.