Hauer v. Davidson

Smith, C. J., delivered the opinion of the court. This is an action of ejectment, in which appellee was plaintiff and appellant defendant, in the court below, and in which, at the close of the evidence, the jury were peremptorily instructed to find for the plaintiff. Appellee attempted by her evidence, but failed, to show a complete paper title to the land in controversy. When she rested her case there was nothing in the evidence which indicated that she and the defendant claimed from a common source. A motion to exclude [704] the evidence was then made by the defendant and erroneously overruled. Appellant, instead of also resting her case, proceeded to introduce evidence, so that the correctness of the judgment rendered must be deter-mind by the whole evidence without reference to the ruling on the motion to exclude. Hairston v. Montgomery, 102 Miss. 364, 59 So. 793. One of the deeds through which appellee claims was executed by D. C. Brannon and'several cotenants to his (D- 0. Brannon’s) wife, Sarah Frances Brannon, conveying to her about one hundred and fifty acres of land. Sarah Frances Brannon died in 1909, leaving surviving her D. C. Brannon and three daughters, appellee, Mrs. Bessie Lanehart, and Blanch Brannon. D. 0. Brannon died on April 22, 1910, and on the 15th day of September, 1914, Mrs. Bessie Lanehart and Blanch Brannon conveyed to appellee, certain land, claimed to be that in controversy and embraced within the land conveyed by D. C. Brannon et al. to Sarah Frances Brannon. Appellant introduced in evidence a deed from D. C. Brannon to T. B. Knight, executed on June 27, 1908, in which the land conveyed was described as "my gin-house and one acre of land on the north side of the public road in section 43, township 5, range 1 west, in the county of Wilkinson, state of Mississippi;” and a deed from T. B. Knight to appellant, executed on the 23d day of December, 1909, in which the land was described as "one acre of land lying north of the public road in section 43, township 5, range 1 west, and being the same land conveyed me by D. C. Brannon by deed dated June 27, 1908, and of record in Book UU, .page-200, conveyance records of said county. ’ ’ The land sued for is described in the declaration as follows: “A tract of land, with the appurtenances, situated in the said county, containing one acre, and being bounded on the east by the lands owned by W. E. Davidson, south by the' Natchez and Liberty public road, and west [705] and north by the lands owned by the estate of Mrs. Fannie Brannon, deceased, being the one acre of land on which is situated the ginhouse formerly operated by D. C. Brannon, deceased, and supposed to be in section 8, township 4, range 1 west.” Appellee’s claim is that when Mrs. Brannon died, her husband, D. C. Brannon, became'vested with an estate for life by curtesy, with remainder in her three daughters, appellee, Mrs. Lanehart, and Blanch, so that the deed to her from Mrs. Lanehart and Blanch vested in her the full title. There is no merit in this contention, for the reason that the estate by the curtesy was abolished in 1880, prior to the death of Mrs. Brannon. On her death, her husband and daughters inherited the land as tenants in common, so that a conveyance thereof by Brannon would vest in his grantee an undivided interest therein. Appellant’s claim to the land, according to the brief of her counsel, is based, not upon any title which Bran-non acquired by inheritance from his wife, but upon a •title acquired by adverse possession. This claim, however, is not supported by the evidence, for while it appears that Brannon was in possession of the land, the character thereof does not appear; we must presume, therefore, that it was not hostile to his cotenants. Conceding that the description of the land in the deeds from Brannon to Knight and from Knight to appellant are valid, as to which we will not npw express an opinion, it does not appear therefrom that the land intended to be conveyed thereby is that here in controversy, so that these deeds do not show either ownership in appellant or claim by appellant and appellee from a common source; that is, from Sarah Frances Brannon. Moreover, it nowhere appears in the evidence that the land in controversy is embraced within the calls of the deed from D. C. Brannon et al. to Sarah Frances Brannon, through which appellee claims. The only testimony by which it was attempted to prove this fact [706] was delivered by appellee’s husband and by a surveyor named McNeal. In the testimony of appellee’s husband appear the following questions and answers: “Q. You know the land on which the gin known as Dug Brannon’s gin is located? A. Yes, sir. Q. Do you know the land that Mrs. Fannie Brannon owned in this county? A. Yes, .sir. Q. Within the boundaries of whose land does this gin lie? A. The land formerly-owned by Mrs. Fannie Brannon. ’ ’ That the land in . controversy may be within the boundaries of land formerly owned by Mrs. Fannie Brannon falls far short of, establishing the fact that it is within the boundaries of that particular land conveyed to her by the deed executed by D., C. Brannon et al., and through which appellee deraigns title. The testimony of the surveyor was as follows: “Q. Do you know the land of. Fannie Brannon, deceased? A. Yes, sir. Q. Where is this gin and acre of land located on the lands, of Mrs. Fannie Brannon, deceased? A. It is in the northeast corner of the west one-half of section 8, township 4, range' 1 west, on what is called the Dug Brannon property. Q. Supposed to be the land of D. C. Brannon? A. Yes, sir. Q. This gin and acre of land on which it is located is in section 8, township 4, range 1 west? A. Yes, sir.” It follows from the foregoing views that the peremptory instruction should not have been given. Reversed and remanded.