Evans v. Harrison

Ethridge, J., delivered the opinion of the court. The appellee, complainant below, filed a bill in the chancery court to confirm title to the North half of the Northeast quarter, section 4, township 24, range 2 west, alleging that he is the owner in fee simple and designing his title thereto, and that lately towit, three years ago, the defendant entered upon and took possession of the complainant’s said land, being that portion which is described as beginning at the northwest corner of the north half of the northeast quarter, section 4, running thence east seventeen chains, thence southwest to the southwest corner of the said north half of the northeast quarter, thence north along the west line of the north half of the northeast quarter twenty chdins, to the point of beginning, containing seventeen acres, more or less. He further alleged that the defendant had no title whatever to said lands, but pretends to have a right or title thereto which casts a doubt and suspicion upon complainant’s title. He prayed for a cancellation of the defendant’s title and for an an [162] uual rental of three hundred and forty dollars per annum for three years next before the filing of the bill. The original defendant, J. T. Evans, filed an answer, in which answer he denied that he was in possession of any lands that belonged to the complainant, and alleges the truth to be that that part of the strip of land described in complainant’s bill, and claimed to be a part of the north half of the northeast quarter, is not in said description at all, but is part of the northeast quarter of the northwest quarter of said section, and denied the allegations that he had lately entered into the possession of the land described in the bill, and denied that he has not right or title to the said land, and averred the truth to be that on March 28, 1901, he purchased the land described as the east half of the northwest quarter of the northwest quarter of section 4 from Dr. H. A. Smith, and went into possession of that and all of the land described in the complainant’s bill within a few days thereafter, and cleared and put the same into cultivation during the year 1901, and that he has been in the open, notorious, continued, and peaceful possession of the same since then, claiming title to the same against the world; was then and is now the actual occupant and possessor thereof, and has acquired a perfect title to said land by adverse possession for more than ten years under the statute; and denied that the complainant was entitled to any relief. After this answer was filed, and before any further steps were taken, J. T. Evans, the original defendant died, and the suit was revived against his heirs at law. These heirs thereafter filed an amended answer, setting up adverse possession of the land in controversy for more than twenty years under claim of right, and that the same had been in the exclusive possession of the said J. ,T. Evans from 1901 until his death, and since his death in the heirs of the said J. T. Evans. On the trial it was.agreed between the parties in open court that W. H. Harrison, the complainant, was vested with the record title to the lands in controversy, and that [163] the defendants have no sort of paper title; that the land in controversy has been assessed to the Delta & Pine Land Company and those who claim by and through them since 1902, and that the taxes thereon have been paid by the Delta & Pine Land Company and those who claim through them since said date; and that the defendants had never paid any taxes on the said land, and the said lands have never been assessed to the defendants. It was further agreed that, if the court found the complainant entitled to recover taxes paid by him in this suit, the chancery clerk shall act as master to ascertain the amount, and his finding will be the basis for any recovery which may be due in this behalf. The proof showed that the land had been sold for taxes several times, and had been redeemed by the holders of the record title. The proof showed that J. T. Evans in 1901 entered upon the land in controversy, believing it to be within the calls of'his deed, and cleared and fenced the same, and that it had been inclosed in his fields and cultivated from that time on to the time of the filing of the suit; that there had been a former survey, and that Evans cleared the land up to the line as made in the former survey, but a correct survey of the land disclosed that the seventeen acres in controversy were not within the calls of the Evans deed, but were within the calls of the complainant’s deed. The chancellor held that the possession of Evans was not such possession as would give him title by adverse possession, evidently in view of the testimony, proceeding upon the idea that, inasmuch as Evans did not claim to own land in the government description embracing the complainant’s title, he did not make such claim as would support title by adverse possession. We think, however, the chancellor was in error in so holding, and that the decisions of this court fully sustain the doctrine that it does not make any difference whether the land lay within or without the call of the title deeds of the person in possession, where he in good faith, though mistakenly, thinks [164] the land lies within the calls of his own deed, when in fact it actually lies within the calls of his adversary’s deed. This has been distinctly held by this court in a number of cases. See Metcalfe v. McCutcheon, 60 Miss. 145; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Crowder v. Neal, 100 Miss. 730, 57 So. 1; Greer v. Pickett, 127 Miss. 739, 90 So. 449; Schuler v. McGee, 127 Miss. 873, 90 So. 713. The decree of the chancellor will be reversed, and the bill dismissed, in so far as it affects the seventeen acres referred to in this opinion. Reversed and dismissed.