Opinion
No. 36197.
January 27, 1947. Suggestion of Error Overruled February 24, 1947. Motion to Correct Judgment Sustained April 28, 1947.
1. APPEAL AND ERROR.
In suit to confirm and to remove cloud upon title, where questions presented were questions of fact and chancellor had ample evidence to support his findings, or at least Supreme Court could not say chancellor was manifestly wrong, the Supreme Court had no right to reverse him.
2. QUIETING TITLE.
Where owner of 166-foot lot executed trust deed covering 150 feet thereof, and after deed was foreclosed and the property sold owner and wife brought suit to establish title in themselves to 66 feet of the lot on ground that inclusion of 50 feet in the trust deed was error, whereupon purchaser by cross-bill denied owner's title to any of the property and claimed title to the 16 feet not included in the deed of trust on ground that it was erroneously omitted therefrom, decree based on finding that inclusion of the 50 feet and exclusion of the 16 feet was intentional should not have dismissed owner's bill outright, but should have confirmed owner's title to the 16-foot parcel.
ON MOTION. (In Banc. April 28, 1947.) [ 30 So.2d 90. No. 36197.]APPEAL AND ERROR.
Where owner of 166-foot lot executed trust deed covering 150 feet thereof and after deed was foreclosed and property sold owner and wife brought suit to establish title in themselves to 66 feet of the lot on ground that inclusion of 50 feet in trust deed was error, whereupon purchaser by cross-bill denied owner's title to any of property and claimed title to the 16 feet not included in deed of trust on ground that it was erroneously omitted therefrom, and chancellor found that inclusion of the 50 feet and exclusion of the 16 feet was intentional, Supreme Court would render decree which should have been rendered by chancellor quieting title in owner to the 16 feet.
APPEAL from the chancery court of Sunflower county. HON. J.L. WILLIAMS, Chancellor.
Forrest G. Cooper, and Jack E. Harper, Jr., both of Indianola, for appellants.
The evidence is clear and conclusive that the complainants, appellants here, have good title to the land south of the partition wall, for two reasons: (a) The evidence that this area was occupied adversely by Colotta for more than ten years is everwhelming; and (b) the defendants, appellees here, present no evidence of any adverse occupancy, or any occupancy thereof.
If mistaken in this, the lower court committed error in adjudging that the complainants were not entitled to any relief, and in dismissing their bill, at least to the extent that the lower court should have confirmed title to the last 16 feet, that is the 16 feet south of the first 150 feet, for two reasons: (a) Colotta has record title to this property, and in addition has occupied the same adversely all the while; and (b) Lillie E. Cox has no deed, or color of title thereto, and has never occupied any part thereof adversely.
Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Evans v. Shows, 180 Miss. 518, 177 So. 786; Kersh v. Lyons, 195 Miss. 598, 15 So.2d 768; 2 C.J.S. 758, Sec. 181.
All of the evidence as to possession, offered by the appellees, relates to that part of the property north of the partition wall. In all of the discussions between Lillie E. Cox and D. Colotta, according to Mrs. Cox, the dividing line between them was stated to be such partition wall. Possession, therefore, north of that wall, cannot give constructive possession to the building south of the wall. Even so, such occupation as appellees testified about was not continuous, but was for only a few months out of a period of more than ten years, and, too, that was north of the wall.
Harold Cox, and Watkins Eager, all of Jackson, for appellee, Mrs. Lillie E. Cox.
Appellants have filed no sufficiently specific and definite assignments of error herein.
Eaton v. Hattiesburg Auto Sales Co., 151 Miss. 211, 117, So. 534; Adams v. Munson, 3 How. (4 Miss.) 77; Calvit's Executors v. Markham, 3 How. (4 Miss.) 343.
The appellants were not entitled to reform their deed of trust and redeem the same in this suit.
Watson v. Owen, 142 Miss. 676, 107 So. 865; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; Code of 1930, Secs. 403, 2289; Griffith's Mississippi Chancery Practice, Sec. 217.
The appellants failed to establish by a preponderance of the evidence that they had adverse possession of the area in Lot 3 lying south of the partition wall through the bottling plant, which is 131.75 feet south of Second Street.
Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Bullock v. Greer, 181 Miss. 190, 179 So. 264; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Kelso v. Robinson, 172 Miss. 828, 161 So. 135; Cusimano v. Spencer, 194 Miss. 509, 13 So.2d 27; State Highway Commission v. Woodward, 195 Miss. 392, 15 So.2d 697; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Lovejoy v. McKibben, 113 Miss. 369, 74 So. 281; Elmer v. Holmes, 189 Miss. 785, 199 So. 84.
There was no equity on the face of appellant's bill of complaint and the trial court properly dismissed the complaint and denied appellants' claim to the 16-foot strip.
Williams v. Williams, 167 Miss. 115, 148 So. 358; Wirtz v. Gordon, 187 Miss. 866, 192 So. 29; Crittenden Co. v. Ragan, 89 Miss. 185, 42 So. 281; Dean v. Robertson, 64 Miss. 195, 1 So. 159; American Freehold Land Mortgage Co. v. Jefferson, 69 Miss. 770, 12 So. 464; Griffith's Mississippi Chancery Practice, Secs. 522, 525; 44 Am. Jur. 53-55, Sec. 68.
Lyon O'Donnell and B.B. Allen, all of Indianola, for appellee, W.H. Middleton.
The title of W.H. Middleton to the north 150 feet of Lot 3 is a good title of record, not color of title.
Shepherd v. Cox. et al., 191 Miss. 715, 1 So.2d 495, 4 So.2d 217, 136 A.L.R. 1346.
It does not have to be supported by possession or by adverse possession either actual or constructive.
See 2 C.J.S. 517, Sec. 6.
The principle that possession by one claiming under color of title of part of a tract of land is constructive possession of the remainder is not in point.
See Sessions v. Doe ex dem. Reynolds, 7 Smedes M. (15 Miss.) 130; Native Lumber Co. et al. v. Elmer et al., 117 Miss. 720, 78 So. 703; Bullock v. Greer et al., 181 Miss. 190, 179 So. 264.
The record title of W.H. Middleton can be defeated only by a superior paper title, or by a showing of adverse possession by another. No claim of paper title to the north 150 feet of Lot 3 is made by appellants. Appellants failed to prove adverse possession in themselves as to any part of Lot 3.
A possession in subservience to or in recognition of the title of the true owner is insufficient ever to ripen into title.
2 C.J.S. 627, Sec. 81.
Adverse possession must be pleaded and proved by the one who relies upon the same, and the burden of proof is clearly upon claimant.
Cohn v. Pearl River Lumber Co., 80 Miss. 649, 32 So. 292; Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53; Lovejoy v. McKibben, 113 Miss. 369, 74 So. 281; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; White et al. v. Turner et al., 197 Miss. 265, 19 So.2d 825.
Not only does the claimant of a title by adverse possession have the burden of proof, but such proof must also be clear and fairly convincing.
Fairley v. Howell, 159 Miss. 668, 131 So. 109.
A record owner and his predecessors in title are entitled to have their possession treated as coextensive with the calls of their deeds which constitute the record title, in the absence of an actual, adverse and continuous use or occupancy by someone else.
Kersh et al. v. Lyons et al., 195 Miss. 598, 15 So.2d 768.
The burden on the claimant included proving every essential element of title by adverse possession; that is to say, that such possession was open, notorious, hostile, actual, exclusive and continuous for the statutory period.
McCaughn v. Young, 85 Miss. 277, 37 So. 839; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660.
He who seeks the aid of a court of equity must first offer to do equity.
Williams v. Williams, 167 Miss. 115, 148 So. 358; Wirtz v. Gordon, 187 Miss. 866, 184 So. 798; Dean v. Robertson, 64 Miss. 195, 1 So. 159.
Complainant in a suit to quiet title must show either legal or equitable title in himself. Appellant has shown neither to the 16-foot strip in Lot 3.
This is both a "cloud" suit, and a "confirmation" suit, and as such complainants, appellants here, were bound to show that either legal or equitable title was in themselves, and to prove their case upon the strength of their own title.
McAffee v. Lynch, 26 Miss. 257; Kerr v. Freeman, 33 Miss. 292; Adams v. Harris, 47 Miss. 144; Hart v. Bloomfield, 66 Miss. 100, 5 So. 620; Ricks v. Basket, 68 Miss. 250, 8 So. 514; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Goff v. Avent, 122 Miss. 86, 84 So. 134; Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709; Burnett v. Bass, 152 Miss. 517, 120 So. 456; Ables v. Forrester, 182 Miss. 551, 181 So. 913; Griffith's Mississippi Chancery Practice, Secs. 211, 212, 590.
As appellants were unable to prove either legal or equitable title in themselves and come within the rule, their complaint was properly dismissed by the court below.
Neither were the complainants below able to bring themselves within the provisions of Section 403, Code of 1930 (Section 1323, Code of 1942), which authorizes the owner in possession or the owner out of possession, if there be no adverse occupancy, to bring suit to confirm title; nor were complainants able to bring themselves within the provisions of Section 404, Code of 1930 (Section 1324, Code of 1942), which authorizes the real owner of property to bring a suit to remove clouds upon his title, for the reason that complainants were totally unable to prove themselves owners in any sense, regardless of whether the property in question was occupied by them, was vacant, or was occupied by another.
Camp v. Celtic Land Improvement Co., 129 Miss. 417, 91 So. 897; Nicholson v. Myres, 170 Miss. 441, 154 So. 282; Cook v. Friley, 61 Miss. 1; Broome v. Jackson, 193 Miss. 66, 7 So.2d 829, 8 So.2d 245.
Mrs. Lillie E. Cox and W.H. Middleton, her grantee, claim title to said 16 feet and better right thereto as against the appellants. All the equities are with Mrs. Lillie E. Cox.
A party is guilty of laches which ordinarily bars the enforcement of his right where he remains passive while an adverse claimant incurs risks, enters into obligations, or makes expenditures in improving the property in suit, paying taxes thereon, or otherwise, in reliance on his own right.
Evans v. Forstall, 58 Miss. 30; Wynne v. Mason, 72 Miss. 424, 18 So. 422; Frederic v. Mayers, 89 Miss. 127, 43 So. 677; Kelso v. Robinson, 172 Miss. 828, 161 So. 135, and authorities cited therein; Comans v. Tapley, 101 Miss. 203, 57 So. 567; State Highway Commission v. Woodward, 195 Miss. 392, 15 So.2d 697; Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 263; 21 C.J. 32.
A person may not withhold his claim, awaiting the outcome of an enterprise, and then, after a decided turn has taken place in his favor, assert his interest, especially where he has thus avoided the risks of the enterprise.
21 C.J. 225.
The Colotta deed of trust for $3,500.00 dated July 1, 1926, has long since been barred by the statute of limitations, but this fact did not relieve the appellants from the duty of tendering or offering to pay the proportionate share of the same covering the lands which they are now claiming. Moreover, he cannot avoid the operation of the maxim, that he who invokes the aid of equity must do equity, by the interposing of any statute of limitations as dispensing with that necessity.
Cook v. Reynolds, 58 Miss. 243; Watts v. Bonner, 66 Miss. 629, 6 So. 187; Nolan v. Snodgrass et al., 70 Miss. 794, 12 So. 583; Feld v. Coleman, 72 Miss. 545, 17 So. 378; Nash v. Smith, 133 Miss. 1, 96 So. 516; Lucas et al. v. American Freehold Land Mortgage Co., 72 Miss. 366, 16 So. 358; Wall v. Harris, 90 Miss. 671, 44 So. 36; Wirtz v. Gordon et al., 187 Miss. 184 So. 798, 802, 192 So. 29; Hubbard v. Massey et al., 192 Miss. 95, 4 So.2d 230.
Mrs. Lillie E. Cox obtained title to said 16 feet by adverse possession.
Sessions v. Doe ex dem. Reynolds, 7 Smedes M. (15 Miss.) 130; Green v. Irving, 54 Miss. 450; Wilson v. Williams' Heirs, 52 Miss. 487; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Evans v. Shows, 180 Miss. 518, 177 So. 786; Bullock v. Greer, 181 Miss. 190, 179 So. 264.
Lot 3 of subdivision of Lot 24, Block O, of the Maclin Addition to the Town of Indianola, Mississippi, is bounded by Second Street on the north, and the right-of-way of the Columbus and Greenville Railway Company on the south. That lot is 248 feet deep, north and south, and approximately 65 feet wide, east and west.
On December 15, 1926, appellant, D. Colotta, owned the north 166 feet of Lot 3. On that day, he and his wife executed a trust deed conveying the north 150 feet of that lot. That deed of trust was foreclosed June 10, 1933, and the property, as described in the trust deed, was purchased by appellee, Mrs. Lillie Cox. In other words, the trustee's deed conveyed to Mrs. Cox the north 150 feet of Lot 3. That left in Colotta the title to 16 feet lying immediately south of the said 150 feet.
On August 12, 1944, D. Colotta and Mary Colotta, his wife, filed this bill in equity seeking to establish and confirm in themselves title to that part of Lot 3 which begins 100 feet south of Second Street and extends south 66 feet, and to remove as a cloud upon their title the claims thereto of the appellees, Mrs. Cox and Middleton. The 66 feet in question includes the south 50 feet of the 150 feet conveyed by the deed of trust and the trustee's deed. Complainants asserted title in themselves to this 66 feet on the ground (1) that the inclusion of 50 feet thereof in the deed of trust was an error; and (2) if mistaken in this, that they were vested with title to that 50 feet by acts of adverse possession exercised thereover since the sale under the trust deed June 10, 1933; and (3) the 16-foot strip was never conveyed by them.
Mrs. Cox, by her answer, denied that the Colottas had title to any part of the 150 feet conveyed by the said deed of trust, and, by cross-bill, claimed title to the south 16 feet on the ground that (a) that parcel was erroneously left out of the deed of trust, but, if mistaken as to that; (b) that she had title thereto by adverse possession.
Middleton, in his answer, took the same position as to the claims of the Colottas as was asserted by Mrs. Cox, except that he made no claim to the 16 feet, and he made his answer a cross-bill as to Mrs. Cox, and asked for a personal decree against her upon the warranty in her deed to him in case the court should find Mrs. Cox did not have good title to said 150 feet.
It is thus seen that the record legal title to the 50-foot tract was in Middleton as the grantee of Mrs. Cox, and that the record title to the 16-foot parcel was in Colotta.
The chancellor found from the evidence, as a question of fact and conclusion of law, that the inclusion of the 50-foot tract in the deed of trust executed by the Colottas December 15, 1926, was not a mistake and that the parties intended to so include it, and that the evidence failed to show that Colotta had title thereto by adverse possession. Likewise, he found and concluded that the omission of the 16-foot tract from said deed of trust was not an error and that the evidence failed to establish in Mrs. Cox title to that parcel by adverse possession. He entered a decree dismissing the bill outright and confirmed in Mrs. Cox, as of July 28, 1944, the date of her deed to Middleton, and in Middleton as of the date of the decree, title to the north 150 feet of Lot 3, which included the 50-foot tract in question, and cancelled and removed as a cloud thereon on all claims of the Colottas thereto, and, to that extent, sustained the cross-bills.
From that decree, the Colottas prosecute a direct appeal, and Mrs. Cox and Middleton cross-appeal to this Court.
The questions presented were questions of fact. It would serve no good purpose to detail the evidence bearing thereon. It is sufficient to say the chancellor had ample evidence to support his findings on all of them — at least, we cannot say he was manifestly wrong, — and, in such case, we have no right to reverse him. However, he was in error in dismissing the bill. His decree should have confirmed the title of D. Colotta to the 16-foot parcel, and sustained his bill to that extent. Mrs. Cox contested his right to that parcel. We are forced to reverse his action in that regard. Accordingly, a decree will be entered here confirming the title of D. Colotta to said 16-foot parcel and sustaining the bill to that extent, and affirming the decree of the lower court on the cross-bills.
Affirmed on cross-appeals, reversed on direct appeal, and judgment here.
ON MOTION.
The motion to correct the judgment hereinbefore rendered by this Court in this case will be sustained, and that judgment will be set aside, and another entered, reading as follows:
This cause having been submitted at a former day of this term on the record herein from the Chancery Court of Sunflower County, and this Court having sufficiently examined and considered the same, and being of the opinion that there is partial error therein, doth order and adjudge and decree that the decree of said Chancery Court rendered in this cause on the 20th day of November, 1945, be and the same is hereby affirmed and shall remain in full force and effect except insofar as it dismisses the original bill of complaint of D. Colotta and Mary Colotta, and this Court now here proceeding to render the decree that should have been rendered in the court below on the original bill of complaint doth order and adjudge and decree that as against W.H. Middleton and Mrs. Lillie Cox, the appellant, D. Colotta, is the owner in fee simple of the hereinafter described property in the City of Indianola, Sunflower County, Mississippi, described as: a parcel of land in Lot 3 of Subdivision of Lot 24 of Block O of the Maclin Addition to the City of Indianola, Sunflower County, Mississippi, described as a parcel 16 feet wide from North to South and bounded on the East and West by the East and West lines of said Lot 3 and lying immediately South of the North 150 feet off of said Lot 3, and that the title of D. Colotta to said property is quieted and confirmed in him, and all claim of the said W.H. Middleton and the said Mrs. Lillie E. Cox thereto is cancelled and annulled as a cloud on his said title. It is further ordered and adjudged and decreed that the appellants do have and recover of and from the appellees and cross-appellants all of the costs in this Court.