Murf v. Maupin

Ethridge, J., delivered the opinion of the court. R. L. Maupin filed an unlawful entry and detainer suit against S. N. Murf’ at West Ir’oint, Clay county, Miss., for the possession of a thirty-foot strip of land on some lot in the city of West Point. The property is described in the amended affidavit in the circuit court as follows: “Certain land described as being a parcel of land in the city of West Point, Clay county, said state, commencing at a point on the southern boundary of Center street in ward one of said city two hundred and fifty-one and one-half feet from the center of the Mobile & Ohio Railroad track where said street crosses said track, running thence south along the east side of said street thirty feet, thence south one hundred feet, thence west twenty-three feet, thence in a northerly direction to point of beginning.” There was a trial on this affidavit, in which the parties dealt with the matter as though the location was understood, but there was nowhere in the evidence any description of the premises to illuminate the description of the affidavit or if it could be made certain by evidence it was not done in the record. There was much proof on each side tending to show that each of the parties had been in possession of some kind, at some time, during the time preceding the suit. It appears that Maupin had bought the land which he claimed to embrace the land in controversy, 'and that a short while before the controversy.arose he had fences rebuilt which had for some years been in decay, and after Maupin had built these fences Murf went upon the premises, tore loose the fences constructed by Maupin so far as thirty feet on the end of the lot was concerned. Murf offered title deeds and the survey of the premises in evidence, but the court excluded it. There was no written plea by Murf in the case, but it appears from the rulings of the court that his plea was that he was not in possession of [677] the property at the time the suit was brought. Under that state of the case the court ruled that the title deed and survey were incompetent and. irrelevant. Murf claims that he had leased this property to a tenant prior to the bringing of the suit, and that the tenant was then in possession of the premises, and that he (Murf) was not in possession of it, and his tenant was introduced and testified to the same effect. Mr. Maupin was ashed while on the stand as a witness who was in possession of it, and claimed that he considered that he was himself. There was testimony tending to show that Murf had exercised physical dominion over the property subsequent to the filing of the suit, and the court’s instructions indicate that the issue was fought out on whether Murf was in possession or not. The jury found for Maupin in general terms, and thereupon the court entered a judgment.. Following the recital of the verdict we quote as follows: “Now, therefore, it is ordered and adjudged by the court, that it appearing that the defendant is now in possession of the premises, it is ordered that the plaintiff R. L. Maupin have and recover of the defendant S. N. Murf the possession of the premises in controversy, to wit, a certain lot of land in the city of West Point, state of Mississippi, commencing at a point on the southern boundary of a certain street, in ward one of said city two hundred and fifty-one and one-half feet from the center of Mobile & Ohio Railroad track, where said street crosses said track, running thence east along the south side 'of said street thirty feet, thence' south one hundred feet, thence thirty-three feet, thence in a northerly direction to point of beginning. .It is further ordered by the court that the said R. L. Maupin recover of the said defendant S. M. Murf all cost of this suit.’’ It will be noted that this description furnishes no guide by which the property may be located; also that it varies from the description contained in the amended affidavit. It is due the trial judge to state that this de [678] scription was not demurred to or otherwise called to the attention of the court, so far as the record shows. But it is wholly insufficient to support the cause of action. There was a request for a peremptory instruction for the defendant, and, as the defendant had denied possession, it devolved on the plaintiff to point out what property he was in possession of, which neither the affidavit nor the judgment does in this case. The record is in such state that it is hard to decide whether the rulings of the trial judge were proper or not on the title deeds being admitted in evidence. If the defendant’s plea was that he was not in possession, then the only judgment rendered would be one for costs against the plaintiff reciting that defendant disclaimed possession; or, if issue joined, would involve only the issue as to whom should he taxed the cost. The action of unlawful entry and detainer is strictly one to obtain possession of property, and no person can be put out of possession who is not in possession. If, however, the purpose of Murf was to contest the right of the possession with Maupin, and if the controversy turned upon the title deeds as showing the right of possession, or if the title deeds were offered to show the right of possession, then in that event the title deeds would be possession frequently is determined by the title. The admissible, not to prove title which is not involved in this suit, but to prove the right of possession. Right of judgment is reversed and remanded. Reversed and remanded.