Peeples v. Botkin

Ethridge, J., delivered the opinion of the court.- The appellant filed a bill for partition against the appellees and others, alleging- that his mother, Mrs. M. J. Rosser, died intestate in Bolivar county, Miss., in the year 1899, seized and possessed of certain lands described in the bill; that she was twice married in her lifetime, the first time to Wash Peeples, to which union were born two children, W. G. Peeples and Mary Peeples, who later married one Ragland; that by the second marriage to one Rosser she had four children, Lena Rosser, Lillian Rosser, Henry Rosser, and another child who died before reaching- majority, unmarried and without issue; that Mary Peeples Ragland died prior to the death of her mother, but left surviving her her husband and two children, John Ragland, a son, and Lily Ragland, a daughter; that said Mary Peeples Ragland died intestate; that Lily Ragland, her daughter, married one Have Lester, and to this .union was born one child, Emma Lester, who is now a minor; that said husband and daughter are the heirs of Lily Ragland Lester. It is further alleged -that on the 16th of May, 1904, Henry Rosser and Lillian Rosser, then Lillian Rosser Keer, conveyed to the defendant Lena Rosser Boykin all of their interest in the said property by deed recorded in Book 5, at page 176, of the Records of Deeds at Cleveland, Bolivar county, Miss., a copy of which is made an exhibit — 366 — to the bill, and alleges that said Mrs. Lena Boykin is now the owner of an undivided two-thirds interest in said property, and that said W. G. Peeples is the owner of an undivided one-sixth interest therein; that the Raglands, or the descendants of Mary Peeples Ragland, are the owners of the other one-sixth undivided interest, the bill setting out the interest of each of the defendants in the said property, and praying for partition of the said property. The Ragland defendants were residents of the state of Oklahoma, and answered the bill admitting the allegations thereof and joined in the prayer for a division. The appellee Lena Rosser Boykin at the time of the filing of this suit was insane, being an inmate of the State Hospital for the Insane at Jackson, Miss., and A. B. Sparkman was appointed guardian for said Lena Rosser Boykin, and as such filed his answer admitting that the Yazoo & Mississippi Yalley Railroad Company in 1895 conveyed to Mrs. M. J. Rosser the lands in controversy, and admitted that Mrs. M. J. Rosser died intestate, and that she left Lena Rosser, Lillian Rosser, and Henry Rosser and --Rosser, a minor ivho died before reaching majority, unmarried and without issue, but neither admits nor denies that W. G. Peeples and Mary Peeples Ragland, descendants of Mrs. M. J. Rosser, were heirs, but called for proof on that issue, and neither admits or denies the marriage of Mrs. M. J. Rosser to Wash Peeples, and that to that union were born W. G. Peeples and *Mary Peeples Ragland. They admit the marriage of M. J. Rosser to Rosser and the allegations of the bill with reference to the Rosser chiL dren. They likewise neither admit nor deny the allegations with reference to the marriage of Mary Peeples to Ragland and as to the descendants of Mary Peeples Rag-land as alleged in the bill. They admit that on the 16th day of May, 1904, Lillian Rosser Keer and Henry Rosser conveyed to Mrs. Lena Rosser Boykin all of their interest in the said property by deed recorded as alleged in the bill. They set up, however, that Lena Rosser Boykin is the owner in fee of the property by virtue of the statute — 367 — of limitations, she being in possession at the time of the making of said deed and continuously thereafter until now, exercising all 'rights of ownership under said deed, and that she gave incumbrances thereon as such owner which were placed of record in 1904, 1905, 1906, and 1907, which appeared upon the public records of the county. The deed from Henry Bosser and Lillian Keer, formerly Lillian Bosser, to Lena Bosser Boykin, reads as follows: “This indenture witnesseth that the grantors, Henry Bosser and Lillian Keer, both heirs at law of M. J. Bosser, deceased, for and in consideration of the sum of thirty-five dollars, cash in hand paid, convey and warrant unto Lena Boykin, of Cleveland, Bolivar county, and state of Mississippi, the following described real estate, to wit: Our two-thirds undivided interest in and to the land inherited by us and the grantee from our mother, M. J. Bosser, deceased, the same having been purchased from the railroad .by our said mother and being more particularly described as follows: Southwest quarter of the southwest quarter of the southeast quarter of section 23, township 22, range 5 west, situated in the county of Bolivar, in the state of Mississippi— hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this state. The above land is now owned by us and the grantee herein as the only heirs at law of our said mother and it is our intention to convey all interest in-said land which we inherited from our said mother. “Dated this 16th day of May, 1904. “[Signed] Henry Bosser. “Lillian X Keer.” “Witness: “W. B. Boykin.” This deed was acknowledged and filed for record in Bolivar county, at Cleveland, Miss., on May 20, 1904, and recorded on May 27, 1904. The appellant, W. G. Peeples, lived at Grenada, Grenada county, Miss., in which county Mrs. M. J. Bosser — 368 — lived prior to her marriage to Bosser and prior to her removal to Bolivar county. Lena Bosser Boykin, half-sister of W. G. Peeples, notified him about three months after the' death of his mother, Mrs. M. J. Bosser, that she was dead and buried, but gave no notice that she owned any property. He said that he had no knowledge that she had any property; that prior to her removal from Grenada county he contributed to his mother’s support, but after her removal he understood she was being supported by Bosser, her husband; that W. G. Peeples never heard from any of them thereafter’, and never saw any of them until the year 1920, when he made a trip to the delta section, and while there decided to look up his relations; that he visited Octa Boykin, a son of the defendant Lena Bosser Boykin; that in conversation with him he asked him .as to what they were worth, if they owned any property; that Boykin told him about Mrs. M. J. Bosser having forty acres pf land bought from the railroad company and some land which her husband left; that thereupon he, said W. G. Peeples, went to one Bosser, a son of the husband of Mary J. Bosser, who informed him to the same effect; that he then went to the records of Bolivar county and found the deed of record; that he filed suit soon thereafter. It does not appear that the Baglands or the Oklahoma defendants had any knowledge of either the death of Mrs. M. J. Bosser or of her ownership of the land or of any right they had in said lands. There was full proof of the heirship of the Peepleses and the Baglands and of the marriage of Mrs. Bosser to Peeples first and of the birth of the two children by Peeples named above. The chancellor found that Mrs. Lena Bosser Boykin was the sole owner of the place under and by virtue of her possession and claim of ownership under the facts above stated. \ It is contended by the appellant that the possession of Lena Bosser Boykin, she being one of the cotenants, was the possession of all, and that they had no notice of any hostile assertion or claim of ownership by Lena Bosser — 369 — Boykin, and indeed that they had no knowledge of any kind of her right in and to the land; that, inasmuch as Mrs. Boykin and her brothers and sisters through whom she claims title had knowledge of the rights of the appellant and his sister, she cannot claim adverse possession, because she gave no notice expressly, and they had no notice of any fact from which knowledge of the hostile assertion could be known or claimed. It is well settled in this state that one tenant in common cannot acquire title by adverse possession against his cotenants until they have actual notice of the adverse claim or knowledge of such facts as are tantamount thereto. The question for decision here is the taking of the deed above set out with its recitals and the fact that it was placed of record in the deed records of the county, and incumbrances also placed of record sufficient to give no-' tice to the appellant and the descendants of his sister of such hostile assertion. We are of the opinion that the placing of the deed of record gives notice to the world of the contents of the deed, and that such notice in this case is ample to warrant the institution of an ejectment suit against the tenant in occupancy for a wrongful ouster. The appellant relies upon the cases of Day v. Davis, 64 Miss. 253, 8 So. 203; Hignite v. Hignite, 65 Miss. 447, 4 So. 345, 7 Am. St. Rep. 673; Bentley v. Callaghan’s Ex’r, 79 Miss. 302, 30 So. 709; Watson v. Vinson, 108 Miss. 600, 67 So. 61; Alsobrook v. Eggleston, 69 Miss. 833, 13 So. 850; Humphrey v. Seale, 125 Miss. 207, 87 So. 446. While the appellees rely upon Gardiner v. Hinton, 86 Miss. 604, 28 So. 779, 109 Am. St. Rep. 726, as exactly controlling this case, we do not think that either of these cases decide the exact case before us. In Gardiner v. Hinton, 86 Miss. 604, 28 So. 779, 109 Am. St. Rep. 726, the defendants were purchasers from a cotenant under a chain of deeds absolute on their face conveying the entire fee, and were not tenants in common with the complainant. They had been in possession, claiming to be the sole owners — 370 — thereof for more than the statutory period, although the deed from one of the cotenants to the other purporting to convey the fee and the deeds from that grantee to the subsequent buyers were not placed of record until within the ten-year period. However, the deed in this case recites that the grantors and grantees are the sole heirs of Mrs. M. J. Rosser, deceased. If this claim had been brought to the attention of the other parties promptly on the execution of the deed, and they had not taken action to assert their rights within the statutory period thereafter, it is clear that they could not prevail at this late day. If the record of the deed imparts notice to the world of its contents, and we think it does, then this is as effectual for setting the statute in motion as actual notice would have been. It appears to us that a party would be under some duty after notice of the death to make some investigation or inquiry as to what property the decedent had. But, whether that be true or not, the recording of the deed in 1904 gave notice of the claim asserted by the defendant under the deed. . ■ ( The chancellor having held in accordance with these views, the judgment is affirmed. Affirmed.