Humphrey v. Seale

Sam C. Cook, P. J., delivered tbe opinion of tbe court. Tbe record on appeal covers two cases wbicb were tried together on the same state of facts by tbe chancery court of Pearl Eiver county, Miss. J. F. Humphrey, Annie Paine Fornea, and Mary A. Fornea filed their bill in tbe chancery court of Pearl Eiver county against Nancy B. Humphrey Seale, and charged that the complainant J. F. Humphrey and the other complainants and the defendant were the only son and daughters of Basil H. Humphrey, who died intestate on the 28th day of February, 1863, owning the following described land now situated in Pearl Eiver county, Miss. Lots 1 and 6 and the north half of lot 5 in section 22, township 3 south, range 18 west, and the entire southwest quarter of section 23, township 3 south, range 18 west, and the west half of the southeast quarter of section 23, township 3 south, range 18 west, now situated in Pearl Eiver county, state of Mississippi. They charged that the above-described land descended, to the complainants and the defendants as tenants in common in equal parts, and that they still owned and held the land as tenants in common at the time of the filing of the bill. They prayed that the land be sold, and that the proceeds be divided equally among all the parties interested. At the trial the suit was dismissed as to all the land in section. 22, and the suit proceeded as to the land in section 23. Nancy B. Humphrey Seale ansAvered the bill, and admitted that the complainants and the defendant were the sole surviving heirs of Basil H. Humphrey. She denied that the land descended to the complainants and to her as tenants in common, and denied that Basil H. Humphrey was the owner of land at the time of his death. She alleged that all that part of the land in section 22 and the north half of the southwest quarter and the north half of the south half of the soutlnvest quarter of section 23 was bought by her at a tax sale on the 28th day of April, 1881, — 214 — and that immediately after the delivery of the deed to her she took adverse possession of the land, and continued to hold and claim it adversely ever since. She alleged that she did not claim the land in section 22 or the south half of the south half of the southwest quarter of section 23, but that her husband, Eli Seale, purchased this land from J. S. Wheat. The original answer is silent as to the west half of the southeast quarter of section 23, township 3 south, range 18 west.' She does not deny the allegations of the bill as to this last-described land, nor does she in any way make any explanation about it in the original ¿nswer. She .does not allege in her answer as to the land she claims under a tax sale that she took adverse possession of this land with the knowledge of her cotenants, or that she in any way brought home to them knowledge of the fact that she was claiming this land adversely; in fact she denied that the land was held, or ever had been held, by the parties as tenants in common. Later the defendant filed an amended answer, and denied that Basil H. Humphrey died seized and possessed of the west half of the southeast quarter of section 23, township 3 south, range 18 west, and also that she did no't claim, at the time of filing the suit, the south half of the southwest quarter of the southeast quarter of section 23, but the same was claimed by her husband, Eli Seale, who purchased it from J. F. Wheat on March 23, 1899, and that Eli Seale had been in adverse possession of said land since that time. She further alleged that the north half of the southwest quarter, section 23, was sold to the state for taxes prior to the year 1862, and that she bought the same from the state on July 12, 1882, and that she has had adverse possession of the same continuously since that time. She alleged that the northwest quarter of the southeast quarter, section 23, was sold to the state for taxes in 1893, and that on February 22, 1910, the state sold the land described as the northwest quarter of the southeast quarter, section 23, to E. F. Tate, and on February 3, 1913, E. F. Tate conveyed the northwest quarter of the — 215 — southeast quarter of section 23 to Eli Seale, and that Eli Seale went into immediate possession of the land after purchasing it, and remained in possession for more than three years, and defendant pleads the three-year statute of limitations of actual possession. The -other suit filed in said court was by J. P. Humphrey, Anna Paine Fornea, Mary A. Fornea, against Nancy B. Humphrey Seale, and the Salmen Brick & Lumber Company, Limited, a corporation, and is in regard to timber on part of the land in the first suit. The bill charged that the three complainants and the defendant Nancy B. Humphrey Seale were the sole heirs of Basil H. Humphrey Seale, deceased, being the only son and daughters of the deceased, and that Basil H. Humphrey died the. owner of the" southwest quarter of section 23, township 3 north, range 18 west, then in Hancock county, but now in Pearl Elver county, Miss., and that the land descended to the complainants and the defendant Nancy B. Humphrey Seale, as tenants in common, and that the complainants and the defendant are still the owners as tenants in common of said land. The bill charged that the defendant Nancy B. Humphrey Seale had recently sold and conveyed to the defendant the Salmen Brick & Lumber Company, Limited, all of the merchantable timber on said southwest quarter, section 23, with fifteen years to cut and remove the timber from said land. The bill charged -that the defendant Nancy B. Humphrey Seale only had an undivided one-fourth interest in said land and timber, and therefore had no right to convey the entire interest to the Salmen Brick & Lumber Company, Limited, and that such conveyance constituted a cloud on the title of the complainant. Relief was sought by the bill. The two defendants filed a joint answer to this bill. They admit that Basil H. Humphrey died the owner of the southwest quarter of section 23, township 3 south, range 18 west, as charged in the bill, and that the said land descended unto the complainants and the individual defendant as — 216 — tenants in common. They set up title to tbe timber in the Salmen Brick & Lumber Company, Limited, and title to the land in the defendant Nancy B. Humphrey Seale, except the south half of the south- half of the southwest quarter of section 23, which they allege is owned by Eli Seale, the husband of Nancy B. Humphrey Seale. They set up title in the defendant Nancy B. Humphrey Seale-, to the north half of the southwest quarter and the north half of the south half of the- southwest quarter of section 23, township 3 south, range 18 west, by tax collector’s deed to her made the 20th of April, 1881, and adverse possession by her under said tax deed, but the answer does not allege that notice of her claim of adverse possession of this land was brought home to the other tenants in common. The answer sets up title in the south half -of the south half of the southwest quarter of said section 23, in Eli Seale, the husband of the defendant, by a deed from B. F. Wheat dated March 23, 1899, and adverse possession of the land by Eli Seale under' said deed. The answer does not show how Wheat acquired title to this land. A plat is attached in the case of J. F. Humphrey et al. v. Nancy B. Humphrey Seale under her tax deed, and described as the north half of the southwest quarter and the north half of the south half of the southwest quarter and the north half of the southwest quarter of the southeast quarter, section 23, and also showing the land claimed by her husband, Eli Seale, as the south half of the south half of the southwest quarter and the northwest quarter of the southeast' quarter and the south half of the southwest quarter of the southeast quarter, section 23. The land claimed by the defendant Nancy B. Humphrey Seale, bought at tax sale amounts to one hundred forty acres, and the land claimed by her husband, Eli Seale, bought from individuals, amounts to one hundred acres. The land on which the timber was sold by Nancy B. Humphrey Seale and her husband to the Salmen Brick & Lumber Company, Limited, is described as the southwest quarter of section 23, and all of this land is claimed by Nancy B. — 217 — Humphrey Seale by virtue of her purchases at tax sales, except the south half of’the south half of the southwest quarter which is claimed by her husband, Eli Seale, as already stated. The record discloses that the claim of title propounded by Nancy B. Humphrey Seale to the land in controversy rests upon a tax collector’s deed for a part of it, and upon a deed from the state for the remainder, the state’s claim being based upon a tax sale, and both of the tax sales occurred while Nancy B. Humphrey Seale was occupying the land. As we read the record, all of the land in controversy originally belonged to the father of the appellants and of the appellee, and that they were his sole heirs after the death of his widow, and therefore tenants in common of the land. When the land was sold for taxes Nancy B. Humphrey Seale was living on the land and making no claim of ownership thereto except as a tenant in common. She never claimed that she lived on the land long enough since purchasing it at the tax sales to perfect her title by adverse possession. i All of the parties lived on the land for several years after the death of their father, but afterwards they all moved away except their mother and Nancy. After this Nancy and her mother paid the taxes, and it seems that they cultivated some of the land. After the other members of the family went away, until 1880, when a part of the taxes was not paid on a part of the land and it was sold for the taxes of 1880, Nancy bought the land at the sale. In February, 1882, Nancy married Eli Seale, who came to live with her on the land, and they have lived there since that time, and used the same for their support. In 1893 a part of the land was sold to the state for' taxes. In 1913 the state conveyed the land to one E. F. Tate, who afterwards in 1913 conveyed the same to the husband of Nancy. We have thus far gone' into the details of the facts to show how the land was occupied and the payment of taxes and the failure to pay the taxes upon a part of the land,- — 218 — and the acquirements of these titles by Nancy and ber husband. The parties to this suit were tenants in common of the landed estate of their deceased father, and they all, of course, possessed the coequal right to live upon and cultivate the land. The land was not of great value for agricultural purposes, and it appeared that the appellee cultivated that part of the land which was worth cultivating, and sold a part of the growing timber, or such part of same as was consistent with good husbandry. Under the facts it seems to us that under the circumstances there was nothing to put the other tenants upon notice that the tenants in possession were claiming, or would claim, the land as their own. Under the law it was' the duty of all the tenants in common to pay the taxes, and no one tenant in common can acquire a tax title, since it is the duty of all to pay the taxes. Harrison v. Harrison, 56 Miss. 174; McGee v. Holmes, 63 Miss. 50. Nancy Seale bought a part of the land which she had allowed to sell for taxes. Afterwards her husband bought a part of the land which had been forfeited for taxes. We are of the opinion that the husband was also disqualified to set up the title acquired by him. Robinson v. Lewis, 68 Miss. 69, 8 So. 258, 10 L. R. A. 101, 24 Am. St. Rep. 254; Hoyt v. Lightbody, 98 Minn. 189, 108 N. W. 843, 116 Am. St. Rep. 371, 8 Ann. Cas. 984. To sum up, we believe that the facts of record do not warrant a reasonable belief that the appellees were holding the -possession adversely to their cotenants. There was nothing to put them upon notice of an adverse claim of title to the land. On the contrary, every fact and circumstance is entirely consistent with occupancy and use of the lands as tenants in common. Giving due weight to every fact, the appellants did not understand, and reasonably so, that the occupancy and use were subservient to the relationship of tenants in common. The assumption of witnesses in the immediate neighborhood is not impressive. Their understanding of ownership was based largely, if not entirely, on the living on the — 219 — place and cultivation of the land, and the sale of some of the lumber. We are therefore of the opinion that the facts and circumstances do not warrant a finding that there was ouster. Reversed and remanded.