Jones v. Gaddis

Woods, C. J., delivered the opinion of the court. This was an action of ejectment brought by Gaddis for the s. J of n. of n. J of s. J of section 8, township 8, range 1, in Madison county. The plaintiff claimed under title derived from Thomas Shackleford, and offered in support of this claim a deed from one Breck, the assignee in bankruptcy of said Shackleford, to one Allen, plaintiff’s vendor, and, in addition, alleges entrance upon and occupation of this particular parcel of land, in addition to the other lands constituting the Shackleford plantation, for more than ten years. Joues and his co-defendant below claim by virtue of the actual, ■open and adverse possession, for nearly thirty-five years, by W. Ij. Balfour and his heirs and their vendees, under the belief that the land in question was part of the Balfour plantation. They show '.that as far back as the year 1856 (how much earlier does not •appear), Balfour claimed this particular lot, and had, before the date named, put a hedge around his entire plantation, including this particular piece of ground, and that up to the year 1859, the ■date of Balfour’s death, he had cultivated and controlled it as a constituent part of his plantation; that Balfour’s heirs and the purchasers under them have been continuously, notoriously and adversely in possession from the date of Balfour’s death until the present day. "The multiplicity of questions touching the regularity of the tax sale of the land and the validity of the tax-collector’s deed to the state, and. the sufficiency of the certificate of the auditor of public accounts to «how investiture of the title of the state in Shackleford; the validity or invalidity of the deed from Breck, Shackleford’s assignee in bankruptcy, to Allen, the vendor of Gaddis, the plaintiff herein below; and the state of the title, as affected by the rights of Hill, to whom Shackleford conveyed the land in 1860, and out of whom the records in this case show no divestiture of title, and the rights of McMicken and Fearn, the trustees to whom Shackleford conveyed [767] the property in 1866, to secure his creditors, we pass by as matters of curious and interesting speculation merely, in view of the opinion which we entertain and the conclusion at which we have arrived. Let us concede the validity of the deeds offered in evidence on the trial below by Gaddis, and the regularity of the proceedings by which these deeds were acquired, and let us also concede that Gaddis obtained a valid paper title to the land by virtue of the conveyance from Breck, Shackleford’s assignee, to Allen, Gaddis’s immediate vendor, in 1871, as well as to Shackleford’s entire plantation, and the enquiry remains : how will the rights of those claiming under Balfour be affected? To answer this enquiry it becomes necessary to examine the attitude of Balfour and his heirs and their vendees, before and at the time of and subsequent to this sale by Breck, Shackleford’s assignee, to Allen, the plaintiff’s vendor. As early as the year 1856 (how much earlier does not appear, as has already been said), we find W. L. Balfour in possession of this lot of land, claiming it, cultivating it as part of his enclosed plantation and exercising the usual rights of ownership over it. We find the dividing line between the plantations of Balfour and Shackleford (whether by agreement and consent, or by mistake, we do not know) had been so established and permanently marked by a hedge-row, as that the lot of land now in dispute was placed in Balfour’s plantation, and inside the general hedge enclosing all Balfour’s lands, and this condition remained undisturbed and uncomplained of until the death of Balfour in the year 1859. After Balfour’s death we find his heirs still possessing and cultivating the land as their ancestor had done, and we find Hill, to whom Shackleford had sold his plantation in 1860, acquiescing in and recognizing the claim of the Balfours to the now disputed territory. We find that, during the continuance of the late civil war between the states, agricultural operations on the Balfour plantation were practically suspended, and the place itself, now and then, as the exigencies of active hostilities demanded, was abandoned. But we find, too, there was always the animus revertandi in the heart of the [768] refugees, and an actual return when the storm had swept by, and a re-possession of the abandoned home and domain. We find, with the close of the war, that the cultivation of the Balfour plantation practically closed, and, except in little patches (as the evidence denominates them), the once fertile and valuable lands have lain out, open and unfenced and untilled. We find in 1874 that the last Balfour ceased to personally look after and control the plantation, and that one Kearney was then put in possession and charge of the same, as agjent of the Balfours, and that he took possession of all the Balfour lands, including the forty acres in controversy, and that he has so continued in possession ever since. We find that, in the year 1885, Kearney enclosed with a wire fence a part of the Balfour plantation, and that the entire lot in controversy was embraced in this enclosure. We find that the land in dispute was universally recognized in the neighborhood as a part of the Balfour plantation. We find no assertion of claim or right to the land on the part of Shackleford or Hill, or Allen, even at any time. We find Gaddis, the plaintiff, only asserting claim in the year 1889. Having thus examined the attitude of the Balfour heirs and claimants, together with the circumstances marking their possession, let us turn to the alleged entry and possession of Allen, under his conveyance from Breck, assignee of Shackleford. We find that not only the .facts evidencing the claim and possession of the defendants are not disputed, but that it is affirmatively made to appear by plaintiff that Priestly, who always represented Allen, never was in actual possession, for he testifies that he does not know whether he ever so much as went on the lot of land, and in fact, he is unable to say that he even certainly knows where the land really lies. Allen himself is not shown ever to have seen the land; and Break’s deed to Allen was only put on record in the month of October, 1886. Now, under the doctrine announced by this court in Metcalfe v. McCutchen, 60 Miss. 145, it is clear that Balfour or his heirs and vendees have acquired under their claim to, and posssession of the land a title thereto, unless the entry of Allen, under his [769] deed from Breck, assignee, upon the Shackleford plantation, drew to him the constructive possession of this particular lot, which was named in his said deed in connection with all the lands making up the Shackleford plantation, and so put an end to the claim and possession of the Balfours and their vendees. The rule is laid down, as stated by appellee’s counsel, in Hanna v. Renfro, 32 Miss. 125, that “ it is well settled that where a party enters under color of title, he is not considered as a mere disseizor, and confined to the part of the premises in his actual occupancy, but his claim extends to all the lands embraced in the deed under which he claims.” The rule is correct, but this limitation upon the rule must not be overlooked, viz., “ if the title was void as to part of the land conveyed, the occupation of that part to which the grantor had title will not give the grantee constructive possession of the other part, to which he had no title, so as to disseize the real owner; and to divest the rightful owner of the whole tract described in the deed, the partial occupation must be of such a character as to give rise to a reasonable presumption that the rightful owner knows that the entry was made under color of title; and if this presumption be not reasonable, under the circumstances of the case, the disseizin will not extend beyond the actual occupation.” Tiedman on Beal Prop., § 696. See, also, Bailey v. Carleton, 12 N. H. 9; Jackson v. Woodruff, 1 Cowen, 286; Osborne v. Ballew, 12 Iredell, Law, 377; Seigle v. Louderbaugh, 5 Pa. St. 490. Applying these principles to the facts of the case at bar, and conceding for the Breck deed to Allen all that appellee insists upon, it is nevertheless apparent that there was no disseizin of the Balfour claimants of the lot in question, and that the actual occupation of the Shackleford plantation proper by Allen, did not give him constructive possession of this particular parcel upon which he did not enter, and which the Balfours and their vendees continued to claim and occupy. It follows, in our opinion, that, as against Shackleford and those claiming title derivatively from him, the claim of the Balfour heirs and their vendees has ripened into a valid title. And, conceding the validity of the tax-deed from Moorman, tax-collector, and the [770] sufficiency of the auditor’s certificate to show a sale by the state to Shackleford (as to which we express no opinion), yet it is manifestly apparent, from an inspection of the record before us, on this point, that this title did not pass to Allen by the deed of Breck, assignee. Reversed and remanded. F. B. Pratt, for appellee, filed a suggestion of error, reviewing at length the authorities referred to in his brief, and citing others. Suggestion denied.