Crowder v. Neal

Smith, J.. delivered the opinion of the court. In order that appellants’ title to the land in controversy may have become perfect by adverse possession, it is necessary for it to have been held adversely by their grantor, Mrs. Gunning, and that their (appellants’) possession should be tacked to that of Mrs. Gunning. It is manifest from the evidence that Mrs. Gunning, while in possession of this land, intended to, and did, claim it as. her own under an honest, but mistaken, belief that it was within the calls of her deed. Her possession was, therefore, adverse. Metcalf v. McCutchen, 60 Miss. 145. That she would have surrendered possession, had she known that the land was not within the calls of her deed, is immaterial; for the character of her possession is determined, not by what she would have done, had this fact been known to her, but by what she actually did while in possession. In order that one adverse possession may be tacked to another, there must exist privity of possession between the holders thereof. “As a general rule, it may be stated that the requisite privity may be created by any conveyence, agreement, or understanding, that has for its object the transfer of possession and is accompanied by a transfer in fact.” 2 Cyc. 451. This land is not included within the calls of the deed by which the lot owned by Mrs. Gunning was conveyed to appellants; but it is manifest from the evidence that all parties to this deed intended that it should be, and thought that it was, so included, and that possession thereof was by Mrs. Gunning turned over to appellants as a part of the land conveyed. It follows, therefore, that appellants’ possession can be tacked to that of Mrs. Gunning. This is in accord with the great weight of authority, as will be seen by an examination of the cases cited in the briefs of counsel. [737] Under the evidence, the character of appellants’ possession of the land in controversy was not for the time being changed by reason of the fact that they obtained permission from the then owners of the lot now owned by appellee to, and did for a short time, nse it for a cow pasture. The decree of the court below is reversed, and a decree here according to the prayer of appellants’ cross bill. Reversed.