Bentley v. Callaghan's

CalhooN, J., delivered the opinion of the court. Callaghan, Thomas and Beauchamp owned the land as tenants in common, and Callaghan was in possession as such tenant in common. His possession could not become adversary to them, or those claiming under them, without notice that his claim was antagonistic. There must be shown such an intent to oust them as would justify them in bringing ejectment against him. Alsobrook v. Eggleston, 69 Miss., 833 (13 So., 850); Hignite v. Hignite, 65 Miss., 447 (4 So., 345; 7 Am. St. Rep., 637); Day v. Davis, 64 Miss., 253 (8 So., 203); [305] Jonas v. Flaninken, 69 Miss., 577 (11 So., 319). This principle is everywhere recognized, and arises out of the other principle of law that the possession of one tenant in common is the possession of all. It can ‘‘ never be adverse until there is an actual ouster of the cotenants, or some' act deemed by law equivalent.” 1 Am. & Eng. Ene. L., 801, 802 and notes. As to mortgagors in possession, Id., 815. Callaghan’s possession of the whole property being by law presumed to be permissive of his cotenants as well as of his mortgagee, this record nowhere shows that there was ever any apparant change in its character to that of hostility to the other interests. A jury might conclude that Callaghan himself recognized that he was in possession subject to the title of his adversary, because he surrendered his possession to appellants in 1896. He explains this surrender without other reason than that he was in bad health, which to the jury might seem to be a first-rate reason for not surrendering. The appellants claimed derivatively from J. Holberg, who had a paper title to two-thirds derivatively from the sale under the mortgage executed by Callaghan and Thomas, a cotenant, and to the other one-third through successive conveyances commencing with Beauchamp, the other cotenant; and Callaghan seems to have been quiescent while J. Holberg lived. After his death he brought this action of ejectment. These matters are instanced not from any purpose to indicate what should be the final result on a trial proceeded with on the principles we think correct, but to point out what we regard as error in the third instruction given at the instance of Callaghan, which seems to take from the jury the right to weigh the- surrender as evidence, for what the jury might think it worth, or whether his claim was or was not adverse. The case seems to have been tried in the court below without regard to the principle that it is not enough, as between coten-ants, or mortgagor and mortgagee, that the possession, to convey title, should be apparently adverse, but must be such with [306] actual notice to the mortgagee or cotenants, or shown by such acts of repudiation of their claim as are equivalent to actual notice to them. Reversed and remanded.