Opinion
No. 38497.
October 27, 1952.
1. Adverse possession — confirmation of title — cross-bill as to portion of property.
In a suit to confirm complainants' title to a described town lot, there was a cross-bill by which defendants and cross-complainants claimed by adverse possession a small portion of said lot which lies east of the east bank of a described ditch, and on the proof it was overwhelmingly shown that cross-appellants had actually occupied and used said small portion for more than ten years under claim of right, without question by the adjoining owners: Held that it was error to dismiss the cross-bill.
Headnote as approved by Hall, J.
APPEAL from the chancery court of Lafayette County; HERBERT HOLMES, Chancellor.
L.C. Andrews and James Stone Sons, for appellants.
I. The lower court erred in not dismissing the original bill of complaint for the reason that the proof shows that at the time that the original bill of complaint was filed appellee (complainant) was not in actual possession of the land in controversy and because the proof shows that at the time the original bill of complaint was filed appellants (defendants) were in actual possession of the land in controversy.
The bill filed by appellee is not a bill to cancel clouds on his title but a bill to confirm title under Sec. 1323, Code 1942.
In order to maintain a bill to confirm the owner must be, (1) in possession of the land the title to which is sought to be confirmed and, (2) there must not be in adverse occupancy of such land. If either of these are not true, the bill cannot stand.
It is so true that a bill for confirmation which does not allege that the complainant is the owner in possession of the land or the owner out of possession, if there be no adverse occupancy thereof is bad; that a bill which fails to show one of these two things is bad. Griffith, Mississippi Chancery Practice, 2nd Ed., Sec. 217, p. 204; Broome v. Jackson, 193 Miss. 66, 7 So.2d 829; White, et al. v. Turner, et al., 197 Miss. 265, 19 So.2d 825; Hume, et al. v. Inglis, 154 Miss. 481, 122 So. 535; Easterling, et al. v. Howie, 179 Miss. 680, 176 So. 585.
II. The lower court erred in not finding that appellants (defendants) had title to said land by adverse possession. Crowder v. Neal, 100 Miss. 730, 736, 57 So. 1; Ricketts v. Simmons, et ux., (Miss.), 44 So.2d 537, 538; Metcalfe v. McCutchen, et al., 60 Miss. 145; Jones, et al. v. Gaddis, 67 Miss. 761, 7 So. 489; Greer v. Pickett, 127 Miss. 739, 90 So. 449; Schuler, et al. v. McGee, 127 Miss. 873, 90 So. 713; Evans, et al. v. Harrison, 130 Miss. 157, 93 So. 737; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Alexander v. Hyland, (Miss.), 58 So.2d 826; McIntyre, et al. v. Harvey, et al., 158 Miss. 16, 128 So. 572; Browder v. Graham, 204 Miss. 773, 38 So.2d 189.
III. The lower court erred in finding that appellee (complainant) had title by deed to this disputed land.
The authorities for this contention we fully set out in the first section of this argument.
IV. The decree of the lower court is against the preponderance of the evidence.
It is true that this Court will not ordinarily disturb the finding of a chancellor on a question of fact and we do not think this Court should ordinarily do so. But it is also true that this Court will reverse a finding of the chancellor on a finding of fact where such finding is against the great preponderance of the evidence. Gillis, et al. v. Smith, et al., 114 Miss. 665, 75 So. 451; McCarty, et al. v. Love, Supt. of Banks, 145 Miss. 330, 110 So. 795; Teague v. Brown, et al., 199 Miss. 262, 24 So.2d 726; Smith v. Cook, (Miss.), 58 So.2d 27.
V. The decree of the lower court is against the overwhelming weight of the evidence.
J.W.T. Falkner and J.W. Price, for appellee.
I. The lower court was correct in not dismissing the original bill of complaint for the reason that there was no dispute as to appellee's title to a portion of the land which he asked to be confirmed.
In the case of Colotta, et ux. v. Middleton, et al., 201 Miss. 637, the Court held that it was error to dismiss a bill for confirmation of title where the proof showed that at least a part of the land asked to be confirmed should be confirmed.
II. The lower court was correct in finding that appellants had no title either legally or by adverse possession to the lands in controversy.
Appellants, after filing a cross-bill in this suit, made this a suit to remove cloud from title as to the land in controversy. Thereafter the burden was on them to prove legal title or title by adverse possession. Appellants utterly failed to locate the land called for in their deed, and for this reason did not prove any legal title to the land in controversy, and therefore the lawsuit under the cross-bill must stand or fall on proof by appellants that they were entitled to the land by adverse possession. The question of adverse possession is one of fact. The facts in this case do not make out a case of adverse possession on either side, because aside from the question of user of a driveway there were no overt acts by anyone who did anything to put anyone on notice as to where any party was claiming the land between the appellant's and appellee's property to be. A reading of the entire record in this case will show that there is no clear and convincing proof of the length of time that this driveway was used as a means of ingress and egress.
In the case of Lovejoy, et al. v. McKibleen, et al., 113 Miss. 369, 74 So. 281, the Court held that a person relying upon adverse possession must prove such a possession and such acts of ownership and control by the claimant as would notify the world of his claim.
III. The lower court was correct in finding that appellee, also complainant, had title by deed to this disputed land.
The court correctly found that neither appellee nor appellants proved title by adverse possession to the land in controversy. Appellee did prove a paper title to said property which is not in dispute, as appellants did not show that any deed to any person encroached on the land described in appellee's deed and appellants' own witness testified that the land in dispute fell within the calls of appellee's deed.
Since upon the filing of the cross-bill it became a suit to remove cloud from title, and the burden was on appellant to either prove legal title or title by adverse possession, neither of which he did as previously shown, then it manifestly became the court's duty to confirm appellee's title to the land in dispute.
IV. The decree of the court is not against the preponderance of the evidence, nor is it against the overwhelming weight of the evidence.
On the basis of the facts in the record and set forth in the statement of facts and as stated in the case of Colotta, et ux. v. Middleton, et al., supra, "It is sufficient to say the Chancellor had ample evidence to support his finding on all of them — at least, we cannot say he was manifestly wrong — and in such case, we have no right to reverse him."
Appellee brought suit against appellants for confirmation of his title to a parcel of land situated in the City of Oxford and described as starting at a point which is the intersection of the east right of way of North Fifth Street and the north right of way of Jackson Avenue, the said point being the southwest corner of Lot 88 as the same appears on the plat of the Town of Oxford on file in the chancery clerk's office, and running east along the north right of way of Jackson Avenue a distance of 84 feet to the point of beginning; thence east along the north right of way of Jackson Avenue a distance of 25 feet, thence northwardly at a right angle 100 feet, thence westwardly at a right angle 25 feet, thence southwardly at a right angle 100 feet to the point of beginning. It is seen from this description that the parcel has a frontage of 25 feet on Jackson Avenue and a depth therefrom of 100 feet.
Appellants answered and denied the allegations of the bill of complaint and incorporated in their answer a cross bill wherein they claimed title by adverse possession to a part of the east portion of the above described parcel. Upon the hearing the chancellor granted the full relief sought by the original bill and dismissed the cross bill, from which action this appeal is prosecuted.
Appellants have record title as well as full possession of a parcel of land lying to the east of the land in controversy with a frontage of 81 feet on Jackson Avenue. They have two houses, one of which is situated entirely upon the land to which they have record title and which is occupied by them as a residence; the other house is occupied by their tenants and is situated partly upon the 81-foot parcel to which they have record title but extends to the west beyond the calls of their deed for a distance of approximately eight feet. Appellants and their predecessor in title have had the absolute possession of this house for far more than ten years, have exercised every act of ownership over it, collecting the rents thereon without question from anyone.
There is a driveway opening into Jackson Avenue at approximately the southeast corner of the land claimed by appellee and extending in a northwesterly direction therefrom along the meanderings of the east bank of a drainage ditch. This driveway runs almost against but just west of the above mentioned tenant house and affords access to the rear of the tenant house as well as to the rear of the house occupied by appellants. The evidence is overwhelming that appellants and their predecessor in title have used this driveway and claimed the land east of the east bank of the ditch for more than ten years without question or dispute. In fact, Mrs. L.F. Patton, a witness for appellee and from whom he purchased the 25 feet frontage in 1950, admitted on cross-examination that when she purchased her land she bought up to an old fence which ran along the east edge of the ditch. She owned a tenant house and exercised control over the land west of the ditch but did not occupy or exercise control over any of the land east of the ditch and never at any time disputed appellants' right to use and occupy the land east of the ditch or to collect the rent on the tenant house east of the ditch.
A great deal of the confusion as to the frontage owned by the respective parties and no doubt the institution of this suit is attributable to the fact that according to the official plat Block 88 fronts 250 feet on Jackson Avenue, according to actual measurement the frontage is 241.4 feet, and according to various deeds executed there have been conveyances which call for a total of 260 feet frontage.
After a careful consideration of the entire record we are of the opinion that the chancellor should have sustained the prayer of the cross bill as to that part of the land in controversy which lies east of the east bank of the ditch, an accurate description of which is: Commencing at the intersection of the east right of way of North Fifth Street and the north right of way of Jackson Avenue, said point being the southwest corner of Lot 88 according to the plat of the Town of Oxford on file in the chancery clerk's office, and running thence east along the north right of way of Jackson Avenue a distance of 109 feet to the point of beginning; thence running northwardly at a right angle 100 feet, thence running westwardly at a right angle a distance of 14.4 feet more or less and to the east margin of a drainage ditch, thence running in a southwardly direction along the meanderings of the east margin of said ditch to Jackson Avenue, thence eastwardly along the north right of way line of Jackson one foot more or less and to the point of beginning.
The decree of the lower court will accordingly be reversed to the extent that appellants be adjudged to be the owners of the parcel last above described, and in all other respects the decree of the lower court is affirmed.
Affirmed in part, and in part reversed and decree here.
Roberds, P.J., and Alexander, Kyle and Holmes, JJ., concur.