Houston Bros. v. Lenhart

SvkeiS, P. J., delivered the opinion of the court. A. L. Lenhart, plaintiff in the circuit court, brought suit against defendant, Houston Bros,, for damages for the cutting of a number of trees from lands claimed to be owned by plaintiff. A plea of the general issue was interposed by the defendant, and also notice of certain matter that the defendant would prove was given. It is unnecessary to set out what this notice contains. The cause was submitted to a jury which rendered a verdict in favor of the plaintiff upon which verdict judgment was entered by the court. This appeal is prosecuted from’ that judgment. It is the contention of the appellant that the case should be reversed, because the appellee (plaintiff) failed to prove either his title to the land, or his possession of it. To maintain this suit the plaintiff must have either possession of or title' to the land. Darrill v. Dodds, 78 Miss. 912, 30 So. 4. The plaintiff’s claim of title introduced by him was as follows: (1) Title from the state to some one as swamp and overflowed land; (2) deed from the land commis [846] sioner to Christy, sold as forfeited tax land; (3) deed from Christy to Lenhart. There was a complete break in the chain of title from the state conveying it as swamp and overflowed lands until the state again sold it as forfeited tax lands. The plaintiff failed to introduce the list of lands sold to the state for taxes, upon, which the state’s claim of title to this land is based as forfeited tax lands. The defendant properly objected to the introduction of the state’s patent to Christy as forfeited tax lands. The introduction of these deeds was not sufficient to show title to this land in the plaintiff. It devolved upon him to introduce'the list of lands sold to the state for taxes, upon which his tax deed from the state is based.' The list of lands is the foundation of his claim of title, and without its introduction this title necessarily fails. Clyrner v. Cameron, 55 Miss. 593; Weathersby v. Thoma, 57 Miss. 296; Ferrill v. Dickerson, 63 Miss. 210; Mayson v. Banks, 59 Miss. 447; Williams v. Collins, 114 Miss. 882, 75 So. 689; Bennett v. Chaffe, 69 Miss. 281, 13 So. 731; Railroad Co. v. McLarty, 71 Miss. 755, 15 So. 928. It is the contention of the appellee that the testimony shows that he was in possession of the land under‘ color of title. The next question then is whether or not he was in possession of the land. Prom the time it was purchased he paid taxes on it. It is woodland, which overflows periodically. There are no fences or improvements of any kind on the land. He purchased the land from (jhristy in 1906. He states that he was on the land after he bought it at various times; that whep he bought it the lines were- pointed out to him; that he went on'the land several times to see that there were no trespasses in the way of cutting timber and to make an estimate of what the timber was worth; that during his sixteen years of ownership he has been on the land approximately five or six timeS; that he has given permission to different [847] people to hunt on the land. It seems that it was a year or two after the timber was. cnt out of which this suit arises before this fact was discovered by the plaintiff. In short, the plaintiff paid taxes on the land for about sixteen years and visited it about five or six times during that period. It was wild land, not susceptible of cultivation. It cannot be said however, that one is in possession of land in sixteen years only goes on this land for a short period of time each visit, only making five or six visits, or about one visit every three years. This is not possession of land. Darrill v. Dodds, 78 Miss. 912, 30 So. 4; Williams v. Collins, 114 Miss. 882, 75. So. 689. For the failure to prove either a record title, or possession of land who in sixteen years only goes on this land for the necessary period, one of which must be done by the plaintiff before he can maintain this action, the judgment of the circuit court is reversed, and the cause remanded. Reversed and remanded.