Shepherd v. Cox , 191 Miss. 715 ( 1941 )

DISSENTING OPINION. The ground on which the decree of the court below is reversed is that the appellant had been in actual possession of a small portion (four or five acres) of the land in controversy for more than ten years, claiming the whole of it under a color of title thereto. This claimed color of title is the deed of a commissioner appointed for that purpose by the chancery court in a case before it, to which the then owner of the land was a party, executed on November 21, 1890. Prior thereto, on March 3rd of the same year, the land was sold for taxes to Hervey, through whom the appellees claim by mesne conveyances. The chancery court commissioner's deed vested the appellant not with the color of title but with the title to the land subject to be divested by his failure to redeem the land from the tax sale within one year after that sale was made. This time expired in March, 1891, under the statutes then governing, and the land not having been redeemed from the tax sale, Hervey's tax deed thereto became absolute and "its operation to divest the title out of (Shepherd) and to invest it in (Hervey) would be as effective as a quitclaim deed from" Shepherd to Hervey. Acoff v. Roman, 172 Miss. 141,159 So. 555. In other words, Shepherd's commissioner's deed ceased to be available to him as evidence of either title or color of title to the land. If Shepherd had been claiming the land prior to the sale of taxes under a deed investing him not with the title to the land but only with color thereof, the result would necessarily be the same, for an act which destroys one's right to justify possession of or claim to land under a deed conveying the title thereto to him must necessarily destroy one's lesser right to justify possession of or claim to land under a deed which conveys to him a mere color of title.

Color of title when applied to a written instrument implies that it purports, but fails, to convey title; consequently, an instrument which conveys title cannot be said to be color of title. This is but the statement of a self-evident fact; but if authority be desired therefor, it will be found in 1 Am. Jur. Adverse Possession, section 190; Crowder v. Doe, 162 Ala. 151, 50 So. 233, 136 Am. St. Rep. 16, and City of Barnesville v. Stafford, 161 Ga. 588, 131 S.E. 487, 43 A.L.R. 1045; Hitt v. Carr, 62 Ind. App. 80, 109 N.E. 456. But it is said in effect that since Shepherd was not the owner of the land when it was sold for taxes, he was under no obligation to redeem it from that sale; and when he failed to redeem it therefrom, thereby permitting Hervey's title to become perfect, the effect thereof was simply to transform the deed under which he theretofore held title to the land from a deed conveying title to one merely conveying color of title. In other words, to change the deed from one conveying title to the land described therein to one which purports, but fails, to convey the title thereto — a proposition so novel that it has not heretofore appeared in a decision by any court that has come under my observation. Color of title to land based, as here, on an absolute deed thereto, arises when, but not unless, the deed fails to convey title, 1 Am. Jur., Adverse Possession, sec. 185, and the many authorities there cited, and it arises at the moment the deed is executed, and not thereafter.

Graham v. Warren, 81 Miss. 330, 33 So. 71, relied on by the appellant is no authority for extending by construction his possession of a part of the land here in controversy to the whole of it. Warren was there in possession of the land in controversy under a bond for title thereto at the time of a sale thereof for taxes and continued thereafter in possession of it for more than ten years before an action to dispossess him was begun, and the court held his title to the land by adverse possession to be complete. No question of constructive possession under color of title there arose. Possession of land to be adverse to the owner must be by one "claiming to be the owner" thereof. The only evidence by which Warren claimed to be the owner of the land was his bond for title thereto, which the court held was sufficient evidence of such a claim by him, and, in the absence of evidence to the contrary, he would be presumed to be holding the land adversely to the purchaser at the tax sale. This holding applies here not to the appellant's claim of constructive possession of more land than that of which he was in the actual possession but only to the vesting of title in him by adverse possession of the land of which he was in actual possession. This fact, however, cannot avail the appellant anything here, because the evidence does not disclose any sort of description of the four or five acres of land of which he was in possession that would enable the court to describe it and cancel the appellees' claim thereto.

The suggestion of error should be sustained, and the decree of the court below affirmed.

I am requested by McGehee, J., to say that he concurs in this dissent.