Hurst v. J. M. Griffin & Sons, Inc. , 209 Miss. 381 ( 1950 )

Alexander, J.

Hurst filed bill to remove the clouds arising out of the assertion by appellees to a greater interest than one-fifth in the SE¼ NE1/^ Section 9, Township 6 North, Range 12 East, Newton County.

The original owner of the forty acres was Sarah Horn, a patentee from the Government. She died intestate leaving four living children and the children of a deceased child. One of the heirs, Jack Horn, sold in 1911 to B. F. Carter “my one-fourth undivided interest” in the land. He owned in fact only a one-fifth interest. In 1929 Carter sold to J. P. Pace “all my right, title and interest” in the said land. After the death of Pace, intestate, his heirs in 1946 executed a warranty deed to J. M. Griffin and Sons, who conveyed same to appellee. In 1948 the remaining heirs of Sarah Horn executed deeds to Hurst.

The status of co-tenancy thus persisted throughout this period and unless the interest of the heirs other than Jack Horn had been divested by adverse possession or ouster, Hurst’s title to an undivided four-fifths interest would he good and his bill should have been sustained. The chancellor dismissed the bill on the ground that the deed from Carter to Pace purported to convey, under claim of right, the full title to the land, and that appellees had through themselves and their predecessors in title acquired title by adverse possession. Hurst appeals.

We do not find that the deed from Carter to his “right, title and interest” signalled any sufficient assertion of complete title or dominion such as to constitute constructive notice or effect an ouster of the other heirs, even if we were called upon to accept literally the expressions in Peeples v. Boykin, 132 Miss. 359, 96 So. 177. We therefore do not review the cited case, nor Davis v. Gulf Refining Co., 202 Miss. 808, 32 So. (2d) 133, 34 So. (2d) 731, except to reveal that in the opinion on suggestion of error, provoked by an attack upon Peeples v. Boykin, the latter case although its literal language was quoted, was viewed askance and the opinion sought and found reinforcement in the fact of actual hostile and adverse possession known to the co-tenant.

In conceding that a co-tenant may be ousted by adverse possession of another, we canvass the record for such evidence.

Complainant rested his case upon the deraignment of his title showing a co-tenancy. However, upon cross-examination he stated that he lived about a mile and a quarter from the land and knew J. P. Pace and his heirs. One of the Horn heirs had several years before asked Hurst to buy the land. Particular stress is placed upon the knowledge by Hurst of Pace’s claim to ownership. It would be appropriate to develop the fact that Pace’s claim was based upon the assumption that the other Horn heirs were dead and that his claim was conditional. Yet when Hurst bought the interests of the Horn heirs he acquired whatever title they then had. Such title, absent adverse possession and ouster, was an undivided four-fifths interest.

We pass therefore to the adversity of possession of Pace and his successors in title as against the Horn heirs. They had moved to another county. There was no testimony that they knew of the character or extent of possession by Pace and his heirs.

Purchase of the interest of one co-tenant is deemed to be in recognition of the rights of the others. Alsobrook v. Eggleston, 69 Miss. 833, 13 So. 850. There is a presumption that one co-tenant’s possession is not hostile to the others. Hauer v. Davidson, 113 Miss. 696, 74 So. 621. Occupancy by co-tenant who pays taxes is wholly insufficient. Humphrey v. Seale, 125 Miss. 207, 87 So. 446.

The test is not that of mere ten years’ occupancy even under some claim. The occupancy by Pace and his heirs was quite consistent with his status as co-tenant. He cultivated five or six acres only, the lands were unfenced and for the most part ‘ ‘ wild” and used as common pasturage. He cut no timber and his cutting of some firewood was but reasonable estovers.

Appellees introduced testimony that while the land was sometimes known as the Horn lands, Pace claimed he “owned” it. There was a “reputation”- that it was his. Some “thought he owned it all”. To a witness who was a prospective purchaser of the timber, an attorney had disparaged the title, stating that £ £ some heirs there would have to have it cleared up or something like that”.

Ouster of the other co-tenant must have arisen from actual knowledge or as is sometimes vaguely expressed, by acts equivalent thereto. As stated, the occupancy by Pace was as consistent with the status as co-tenant as with a claim of full title. The testimony of such knowledge by the other tenants in common must be clear and convincing. Fox v. Wilkins, 201 Miss. 78, 28 So. (2d) 577. It is not enough that the possession to convey title should be apparently adverse but must be such with actual notice to the co-tenants or shown by such acts of repudiation of tlieir claim as are equivalent to actual notice to them. Bentley v. Callaghan’s Ex’r., 79 Miss. 302, 30 So. 709; Elmer v. Holmes, 189 Miss. 785, 199 So. 84; 1 Am. Jur., Adverse Possession, Sections 54, 56. There being no adequate showing of adverse and actual ouster, laches is not here a defense.

No estoppel can be predicated of the silence of the Horn heirs. It was held in Scottish-American Mtg. Co. v. Bunckley, 88 Miss. 641, 41 So. 502, 117 Am. St. Rep. 763, that absence of knowledge by a co-tenant that he owned an interest and that his knowledge that the other tenant was making a loan on the property (as was done in the instant case) would not by his mere silence work, an estoppel, especially since he did nothing to lead or mislead the mortgagee. The Horn heirs had no actual notice and even if their absence be extended they would not lose their title by mere abandonment.

The bill asserts the cutting of timber by Griffin and Sons, Inc. and sets out the amounts and values thereof. The admission of such allegation by the answer would justify a decree here with credits conceded by the complaint. However there appears in the record a stipulation between counsel that the sole issue involved is the title to the land and that means rents or damages can be either stipulated or referred to a master.

We find that the learned chancellor was in error in dismissing the bill and that the cause must be reversed and remanded solely for the ascertainment of damages and mesne rents, if any, and such adjustment of mutual accounts as may be found proper.

However, if the parties stipulate by proper showing within fifteen days from the date of this opinion an agreed amount as damages, the judgment herein will be amended so as to conclude the matter.

Reversed and remanded on issue of damages alone.

On Suggestion of Error.

Roberds, J.

The suggestion of error reargues the contentions originally presented. We find no reason to change the conclusions we then reached. We merely reiterate that the quitclaim deed from Carter to his "right, title and interest” was not an unconditional assertion of entire ownership of, or dominion over, the property, and did not impart constructive notice to his co-tenants that he was asserting unqualified claim of ownership to the property.

We also again emphasize that Pace’s claim of ownership was conditioned upon his assumption that all of the Horn heirs were dead, which was not the fact, and that, therefore, his claim of ownership was not of such character as is required by Section 711, Code of 1942, to vest title by adverse possession, especially as between tenants in common.

Suggestion of error overruled.