Summary
In Lewis v. Ladner, 177 Miss. 473, 172 So. 312 (1937), overruling suggestion of error in 177 Miss. 473, 168 So. 281 (1936), the court held that when a husband left a tract of land originally purchased by him in his name alone, which was non-contiguous to the remaining homestead property, that this constituted an abandonment of his, and his wife's, homestead rights in that property.
Summary of this case from Dehmer v. TempleOpinion
No. 32141.
May 25, 1936.
DEEDS. Deed from husband to divorced wife of certain described land, and all rights of reversion to timber, land, and other timber rights, easements, "etc.," then owned or which might at any time accrue to husband as result of his ownership of described land, held not to convey to wife land acquired by husband from lumber company under agreement entered into before execution of deed in settlement of husband's claim of adverse possession of land belonging to lumber company, precluding wife from enjoining logging operations on such land.
"Etc.," in deed conveying certain described land and all rights of reversion to timber, land, and other timber rights, easements, etc., then owned or which might at any time accrue to grantor as result of his ownership of described land, could only mean "other things of like character." Timber enters into and is embraced in the word "land."
ON SUGGESTION OF ERROR. (Division A. Feb. 8, 1937.) [172 So. 312. No. 32141.]1. HOMESTEAD.
Where husband at time of separation from wife removed from their homestead without intention to return, he thereby abandoned his and his wife's homestead rights therein, though wife remained in possession under color of a deed given in settlement of claims for support (Code 1930, secs. 1765, 1776).
2. HOMESTEAD.
That wife remained in occupancy of homestead abandoned by husband held immaterial as to existence of homestead rights, where by agreeing to a marital separation she consented to his removal (Code 1930, secs. 1765, 1776).
3. HOMESTEAD.
Permission given by husband after legal separation from wife to lumber company to enter land and cut and remove logs therefrom held binding, under statute, against wife claiming homestead rights in such land (Code 1930, sec. 1778).
APPEAL from the chancery court of Pearl River county. HON. BEN STEVENS, Chancellor.
Davis Davis, of Purvis, and T.J. Wills, of Hattiesburg, for appellant, Edward Hines Yellow Pine Trustees.
The court found that Lemuel Ladner acquired the title by adverse possession. No other person claimed to be in possession of the lands as against the owner. The character of the control exercised by Lemuel Ladner and the state of his mind and his purpose in the use and occupancy of the land is the controlling factor in determining whether or not he was in the actual, exclusive, hostile possession of the land and claimed the same against the world so as to set the statute in motion.
Section 2287, Code of 1930.
The burden was on the complainant, Mrs. Belle Ladner, to prove that the defendant Lemuel Ladner was in the actual adverse possession of the land in question, claiming to be the owner thereof, uninterruptedly continuously for ten years, in order for title to have ripened in him.
Davis v. Bowman, 55 Miss. 671; Cohn v. Pearl River Lbr. Co., 80 Miss. 649; Dedeaux v. Delisle Lbr. Co., 112 Miss. 325; Lovejoy v. McKivven, 113 Miss. 369.
The fact that Lemuel Ladner was represented, in the suit filed against him in the federal court, by able counsel, and settled the suit on the advice of his counsel, admitting that his title had not ripened by adverse possession, is very strong corroborative evidence to his direct testimony, given on the trial of this case in the lower court, that he did not claim the lands until 1928. This fact, when taken in connection with his direct testimony, is conclusive that he did not claim to be the owner of the land until 1928. We know of no law that requires a person, against his will, to claim to be the owner of the land of another, even though he may have it fenced and be using it for his convenience.
2 C.J. 125, par. 211; Adams v. Guice, 30 Miss. 397; Green v. Mizelle, 54 Miss. 220; Rothchilds v. Hatch, 54 Miss. 554; Davis v. Bowman, 55 Miss. 671; Dean v. Tucker, 58 Miss. 487; Wilmot v. Y. M.V.R.R. Co., 76 Miss. 374; McConn v. Young, 85 Miss. 277.
Homestead right does not attach to the wife until the title in the homestead vests in the husband.
Steward v. Kennedy, 145 Miss. 728, 110 So. 847.
The decree in the United States District Court adjudicated that the occupancy of Lemuel Ladner had not ripened a title by adverse possesssion and that no title had vested in him. The decree cancelled whatever claim to the lands that he might have. The decree imports verity. It cannot be collaterally atacked. Lemuel Ladner is bound thereby to the extent that it holds that no title had vested in him and that his claim to any interest in the land was cancelled thereby.
G. S.I.R.R. Co. v. Riley Mercantile Co., 139 Miss. 158, 104 So. 81.
While appellants deny that any homestead rights of the appellee in this case were involved in the suit in the federal court, still, if this court should hold that the homestead rights of Lemuel Ladner were involved in that suit, the decree of the Federal Court is nevertheless res adjudicata as to the rights of Lemuel Ladner and the appellee in this case.
Mrs. Belle Ladner could have no interest in the sense of a vested right in the homestead of her husband. She had the right to veto a conveyance of the exempt homestead. The veto power could not vest until the title to the asserted homestead was acquired.
Section 1778, Code of 1930; 29 C.J. 818, par. 84.
Parker Shivers, and J.B. Mayfield, all of Poplarville, for appellants, Goodyear Yellow Pine Company and Lemuel Ladner.
It is the contention of appellants that Lemuel Ladner never acquired title to the lands involved by adverse possession.
Section 2287, Code of 1930; Leavensworth v. Reeves, 106 Miss. 722, 64 So. 660.
Where a natural barrier is used as a part of an inclosure, a large part of it, it is necessary for the claimant to bring home to the owner the fact that he claims to be holding the owner's land adversely, and he must bring notice to the owner that this natural barrier is being used to enclose the land and to keep out other persons desiring access thereto.
Dowdle v. Wheeler, 76 Ark. 529, 89 S.W. 1002, 113 A.S.R. 106; 2 C.J., sec. 16, page 63, and sec. 64, page 80, and sections 157 and 158, pages 107 and 108, and sec. 199, page 120.
Where the occupant expressly disclaims title in himself, he cannot, of course, acquire title by adverse possession unless after such disclaimer, he subsequently sets up a claim of title and holds adversely for the statutory period, which he may do.
Ridley v. Walter, 153 App. Div. 65, 137 N.Y. 1050; 2 C.J., sec. 518, page 240, and sec. 585, page 262.
The burden of proving adverse possession is in all cases upon him who sets it up and relies on it.
Trotter v. Cassiday, 13 Am. Dec. 186; Dead River Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Claughton v. Claughton, 70 Miss. 384, 12 So. 340.
As to the contention of appellee that she was a necessary party to the federal court suit, that the settlement made therein and the decree entered therein was a fraud on her rights and as to her was, and is void, is not res adjudicata and she is, therefore, not bound either by the settlement, or by the decree entered, we assert that she was not a necessary party to the suit.
Stuart v. Kennedy Co., 145 Miss. 728, 110 So. 847; G. S.I.R. Co. v. Singleterry, 78 Miss. 772, 29 So. 755.
Lemuel Ladner, the husband, had the right to attempt to establish his title, either equitable or legal, defensively, or affirmatively. He also had the right to settle his law suit in the exercise of his judgment, whether good or bad. The wife was not a necessary party and as to her and as to him the decree entered and settlement made was res adjudicata, was binding and is still binding on both.
U.B. Parker, of Wiggins, for appellees.
The chancellor in the court below, who had all the witnesses before him and who heard all the facts, has found that Lemuel Ladner acquired title to this land before the suit was filed in the Federal Court in 1931, and, further, that this was a part of his homestead.
In 1920 Lemuel Ladner fenced up the land involved in this law suit and began to cut trees from it, and to box the timber on it, and to put his cattle, mules and horses in it, and leased or let it to Mr. Ed Shivers for pasture purposes, and used it in every way of which it was susceptible, in connection with his homestead, and in 1925 when Mr. Fornea, the agent of appellant, came there and made inquiry about the matter, Lemuel Ladner refused to sign a release. Later, he refused to sign a release, and in 1931 when the suit was filed against him in the Federal Court, he filed an answer and set up his claim by adverse possession, and the answer in every way recites facts upon which a court could have adjudicated his title in and to the land under adverse possession. But, they say Lemuel Ladner now comes into court and says he did not claim it as his own. I pray this court to say whether or not the chancellor was right or wrong when he decided which of the statements made by Lemuel Ladner was correct. The chancellor decided that Lemuel Ladner and his two respectable attorneys who filed the answer in the Federal Court stated the truth, and that that evidence on his part was of more value to the court in reaching a righteous verdict than his testimony after he had given a deed for three forties of this land and was attempting to defeat appellee out of her rights in the matter.
Stuart v. Kennedy Co., 145 Miss. 728, 110 So. 847.
Our contention that the appellee was not bound by the decree in the Federal Court is sustained and set at rest by the ruling of this court in the very recent case of Farmers and Merchants Bank v. Rushing, 167 So. 784, 175 Miss. 826.
G. S.I.R.R. Co. v. Singleterry, 78 Miss. 772, 29 So. 754; Stewart v. Kennedy Co., 145 Miss. 728, 110 So. 847.
When the husband appears alone and defends a suit, his right to the homestead is no more concluded by the decision than by his separate execution of a deed or mortgage. The legal proceedings to be conclusive against either must embrace both.
The fact that Lemuel Ladner conveyed to his wife the fifty-two acres of land in this deed did not preclude her from continuing in the possession of the land involved in this suit and using same as it had been used by her and Lemuel Ladner previous to the date of this deed, as a part of their homestead. The execution of said deed and acceptance thereof did not weaken or invalidate her claim to the land involved in this suit as a homestead any more than did the decree rendered in the Federal Court in a suit to which she was not made a party.
Wyatt v. Wyatt, 81 Miss. 219; Kirby v. Kent, 180 So. 569; Lumber Co. v. Cuevas, 104 Miss. 32, 61 So. 4.
Appellee's possession of the land involved in this suit, and having it embraced within a substantial fence, or enclosure, claiming the same by adverse possession for more than thirteen years, was sufficient to support the action for damages to, and for the interference with her lawful enjoyment thereof, regardless of the fact that the deed from Lemuel Ladner to appellee did not specifically include the land.
Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298.
We say that there was not one scintilla of relevant testimony against the contention and claim of appellee in the court below, because we say that the testimony of Lemuel Ladner was irrelevant and incompetent as between the appellee and the Goodyear Yellow Pine Company and the Edward Hines Yellow Pine trustees, and Ed Lewis, and Arthur Dickerson.
It was our contention in the court below, and is our contention here, that the court below had no jurisdiction to entertain the answer of Lemuel Ladner, or to permit him to intervene, or interplead, this suit having been filed and prosecuted under section 404 of the 1930 Code of Mississippi, for the purpose of cancelling as a cloud upon the title of complainant, all of the record evidence and claims of title in and to the described land, which was asserted by Goodyear Yellow Pine Company and Edward Hines Yellow Pine Trustees, and for the purpose of obtaining damages and obtaining injunctive relief.
Hume v. Ingalls, 154 Miss. 181, 122 So. 535; Whitney v. Hanover National Bank, 71 Miss. 1009, 15 So. 33; Crystal Springs Bank v. New Orleans Cattle Loan Co., 132 Miss. 52, 95 So. 520; Russell v. Denson, 98 Miss. 859, 54 So. 439; Lumber Co. v. Cuave, 104 Miss. 32, 61 So. 4.
Lemuel Ladner was not a necessary party and was not made a party, and could not be made a party at his own instance, over the objection of the complainant. And while complainant contends that Lemuel Ladner was and is estopped to deny that he claimed this land adversely to the other defendants by reason of his answer in the Federal Court and by reason of all his conduct and the circumstances surrounding the same, and further contends that this testimony is unworthy of belief because of such, but, the truth is, the testimony of a self-invited defendant, an interloper, so to speak, is incompetent, and has been admitted over the feeble objections of your humble servant.
Leech v. Shelby, 58 Miss. 681; Strauss v. Hutson, 104 Miss. 637, 61 So. 594; Hume v. Ingalls, 154 Miss. 181.
Argued orally by T.J. Wills and H.H. Parker, for appellant, and by U.B. Parker, for appellee.
The appellants built a logging road on, and were cutting timber from the E. 1/2 of the S.W. 1/4 and the N.W. 1/4 of the S.E. 1/4 of section 13, township 4 south, range 15 west, in Pearl River county; the appellees claiming to be the owners of the land, exhibited an original bill against them, praying that their claim to the ownership of the timber on the land be canceled, that they be enjoined from maintaining and operating the logging road, for damages for the cutting of the timber, and injury to the land from the building and operation of the logging road. The case was tried on bill, answer, and proof, and the decree was in accordance with the prayer of the bill.
Lemuel Ladner, the husband of Belle Ladner, the appellee, owned the S.W. 1/4 of the S.W. 1/4 and a ten-acre strip of land of equal width across the entire south end of N.W. 1/4 of S.W. 1/4 and two acres of land in the S.E. corner of the N. 1/2 of S. 1/2 of N.W. 1/4 of S.W. 1/4 measuring 70 yards north and south by 140 yards east and west, all being in section 13, township 4 south, range 15 west, containing 52 acres more or less, on which he lived and which constituted his homestead.
The Edward Hines Yellow Pine Trustees owned a large body of wild and uncultivatable land, a part of which was the E. 1/2 of the S.W. 1/4 and the N.W. 1/4 of the S.E. 1/4, section 13, township 4 south, range 15 west. Ladner partially inclosed this land which adjoined that owned by him, and used it as a pasture for cattle. The Edward Hines Yellow Pine Trustees sold the land to the Goodyear Yellow Pine Company, and in 1931 they, together, filed a bill in equity in the Federal District Court against Ladner, praying that his claim to the lands be canceled. Mrs. Belle Ladner was not made a party to this suit.
The case was settled by an agreement under which a decree was rendered canceling Ladner's claim to the land. This agreement provided for the payment of a cash compensation to Ladner, and for the conveyance to him of one hundred twenty acres of cut-over land, to be selected by him. About the time of the rendition of this decree of the Federal District Court, Ladner and his wife were divorced, and he executed to her a deed to the fifty-two acres of land owned by him, describing it as hereinbefore set forth. The deed then continued, "together with all improvements and appurtenances thereon or thereunder belonging, including all rights of reversion to roadways, timber, and other timber rights, easements, etc., now owned or which may at any time accrue to me as a result of my ownership of said lands."
Ladner then moved to Louisiana, and some time thereafter he selected the E. 1/2 of the S.W. 1/4 and N.W. 1/4 of S.E. 1/4, section 18, township 4 south, range 15 west, the land here in controversy, as the land to be conveyed to him under his agreement with the Yellow Pine Trustees and the Goodyear Yellow Pine Company. The latter company thereupon executed to Ladner a deed to the land so selected by him, reserving to itself and its assigns the timber growing thereon, with the right to enter the land, cut and remove the timber, and build necessary logging roads over and across the land therefor. Afterwards the Goodyear Yellow Pine Company built a logging road on the land and was proceeding to cut the timber therefrom when this suit was filed.
The appellants' contentions are:
First. The deed from Lemuel Ladner to Belle Ladner does not convey the land here in controversy.
Second. The decree of the Federal District Court canceling Ladner's claim to the land is res judicata of the appellees' claim thereto.
Third. The evidence does not disclose that Lemuel Ladner was in adverse possession of the land for ten years claiming it as his own.
The conclusion we have reached as to the first of these questions is decisive of the case, and the facts have been set forth only in so far as they bear thereon. The deed from Lemuel Ladner to Belle Ladner does not describe the land here in controversy, but the appellees' contention is that the language of the deed, hereinbefore set forth, indicates that it was Ladner's intention to convey not only the fifty-two acres of land therein specifically described, but also the land here in controversy. They say that this language of the deed, construed in the light of the circumstances surrounding its execution, indicates such an intention on the part of Lemuel Ladner. The specific language of the deed alleged to indicate this intention on the part of Lemuel Ladner is the words "including all rights of reversion to roadways, timber, and other timber rights, easements, etc., now owned or which may at any time accrue to me as a result of my ownership of the lands."
If land can be described and conveyed by this language, as to which we express no opinion, it must be included therein by the use of the abbreviation "etc." for the term "et cetera." This term has no well-defined meaning; and if any meaning is to be given it here, that meaning must be "other things of like character." 21 C.J. 1255. Assuming for the purpose of the argument that this meaning can be here given it, it may be that timber and land are of like character; for timber enters into and is embraced in the word "land." Under this assumption the clause may be read as if written, "All rights of reversion to timber, land, and other timber rights, easements, etc., now owned or which may at any time accrue to me as a result of my ownership of the lands." The conveyance then is "of all rights of reversion to land." Ladner had no right of reversion to this land. He either owned it in fee or he had no interest therein. But if it can be said that the deed does not convey simply rights of reversion to land, but land itself, the title to which accrued, or would accrue, to Ladner as a result of his ownership of the land conveyed, the result would be the same. The land in controversy in no way accrued to Ladner as such a result. The title thereto, if such be had, rested solely on adverse possession with which his ownership of the land conveyed was in no way connected, except that he was in possession of both tracts. His subsequently acquired title was by deed, the execution of which in no way resulted from his ownership of the land he here conveyed. It may be that Ladner intended to convey the land in controversy (however, he denies that he did so intend); but his deed does not indicate such an intention, and there is nothing therein that justifies a resort to the circumstances of its execution for its interpretation.
The appellees, therefore, are without title to, or interest in, the land, and their bill of complaint should have been dismissed.
Reversed, and bill dismissed.
ON SUGGESTION OF ERROR.
The decree of the court below was heretofore reversed, and the appellee's cause dismissed, 168 So. 281. The appellee now suggests that we erred in so doing.
The opinion then rendered set forth the facts of the case then and now pertinent hereto.
The appellee says, first, that while the deed executed to her by her husband, Lemuel Ladner, was one of the bases for the cause of action she here presents, it was not indispensable thereto, for another basis thereof is that the land in question constitutes a part of her husband's homestead, which homestead right she, as the wife, has the right to protect in a court of equity; and, second, that there is a mistake of fact in the statement in our former opinion — that "about the time of the rendition of this decree of the Federal District Court, Ladner and his wife were divorced, and he executed to her" the deed hereinbefore mentioned.
The bill of complaint specifically alleges that the deed from Lemuel Ladner to the appellee conveyed the land to her in fee simple. The court below so held, and based its decree thereon, and an examination of the brief filed by her counsel on the former hearing discloses that such was her contention, although reference is made therein to the fact that the land constituted Lemuel Ladner's homestead. We will assume for the purpose of the argument that the bill alleges facts presenting, under its prayer for general relief, the right, if any, of the appellee to protect this homestead right by a bill in equity.
We were in error in stating that the appellee and her husband, Lemuel Ladner, were divorced. What occurred was that in 1932, while the case referred to was pending in the federal court, or just after the decree therein was rendered, which is immaterial, the appellee filed a bill in the court below against her husband, Lemuel Ladner, setting forth his failure to support her, and praying for an allowance against him therefor. In October, 1932, a decree was rendered thereon in accordance with the prayer thereof. In June, 1933, the deed from Lemuel Ladner to the appellee, hereinbefore referred to and dealt with in our former opinion, was executed, and Ladner removed to the state of Louisiana, where he has thereafter continuously resided. This error of fact in no way affects our former opinion.
The questions presented by the suggestion of error then are:
1. Is the land in question a part of Lemuel Ladner's homestead? In deciding this question, it will be necessary for us to determine (a) whether the federal court decree canceling Ladner's claim to the land is res judicata of his title, although the appellee, his wife, was not a party thereto; and if not (b), did Ladner acquire title to the land by adverse possession; if he did, then (c) did it cease to be his homestead when he removed therefrom without intention of returning thereto, although the appellee continued to live thereon?
2. Has the appellee lost any homestead right she may have had in the land?
We will pretermit any discussion of clauses (a) and (b) to question 1 and come at once to clause (c) thereof and question 2. Assuming then for the purpose of the argument that the land was a part of Lemuel Ladner's homestead when he and his wife separated in 1933, did it continue so to be after his removal therefrom without having returned thereto, or having any intention so to do? Under our homestead statutes one's homestead is the land on which he lives and which is within the provisions of section 1765, Code of 1930, which reads, in part, as follows: "Every citizen of this state, male or female, being a householder, and having a family, shall be entitled to hold exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence by him or her," etc. This homestead right continues only so long as the owner thereof continues to reside on the land, "unless his removal be temporary, by reason of some casualty or necessity, and with the purpose of speedily reoccupying it as soon as the cause of his absence can be removed." Section 1776, Code of 1930. Lemuel Ladner, having removed from the land without any intention of returning thereto, thereby abandoned his and the appellee's homestead rights therein, unless the appellee's continued residence on the land prevented Ladner's abandonment of the homestead becoming effectual. This fact might be material, as to which we express no opinion, in determining whether or not Ladner's abandonment of the homestead became effectual, if it did not appear that the appellee consented to Ladner's removal therefrom.
The deed from Lemuel Ladner to the appellee, executed in June, 1933, and dealt with in our former opinion, was made by him and accepted by the appellee in lieu of the provision made for the appellee's support in the decree of the court below, rendered in October, 1932, and specifically provides, after conveying the land therein described, that "this conveyance is made from myself to grantee, my wife, by way of compromise and settlement of all claim for alimony both temporary and permanent, suit money and attorneys fees inuring to my said wife or which may accrue in her favor, it being the intent and purpose of this conveyance that it is made in full settlement and satisfaction of any and all claims which she may now have or may hereafter have on account of such suit and as alimony or such claim against me on account of the marital relationship and is accepted by the grantee for said purpose and as such full and final settlement." This deed, the circumstances under which it was executed, and what was then done by the parties thereto, clearly indicate that the parties agreed to live separate and apart, and by continuing to live on the land so deeded to her the appellee necessarily consented to the removal of her husband, Lemuel Ladner, therefrom.
There is another reason, somewhat akin to the above, as to why the appellee cannot complain of the entry by the appellants upon this land. They entered thereon under permission from Lemuel Ladner so to do, given long after his separation from the appellee pursuant to the deed hereinbefore set forth, which permission to enter the land, though given by Lemuel Ladner alone, is valid, for he was not then living with the appellee. Section 1778, Code of 1930; Board of Mayor and Aldermen of Town of Booneville v. Clayton, 155 Miss. 428, 124 So. 490.
The suggestion of error will be overruled.