Opinion
No. 33814.
November 13, 1939. Suggestion of Error Overruled January 8, 1940.
1. FORCIBLE ENTRY AND DETAINER.
In an action of unlawful entry and detainer, the complaining party has the burden of proving that the defendant unlawfully withholds possession of the land in controversy (Code 1930, secs. 3456, 3457).
2. FORCIBLE ENTRY AND DETAINER.
The action of unlawful entry and detainer is statutory, and the statutes authorizing the remedy are strictly construed, since they are inderogation of the common law.
3. FORCIBLE ENTRY AND DETAINER.
The action of unlawful entry and detainer is merely one for possession of the land, and does not involve the title thereto.
4. FORCIBLE ENTRY AND DETAINER.
The mere fact that plaintiff had an outstanding muniment of title was not proof that defendant held possession of land unlawfully, and plaintiff could not recover in an action of unlawful and detainer where there was no evidence showing how defendant entered possession or what relation there was between plaintiff and defendant or between defendant and any of plaintiff's predecessors in title.
5. FORCIBLE ENTRY AND DETAINER.
In an action of unlawful entry and detainer, the title deeds are admissible in a proper case only to prove the right to and extent of possession of the complaining party.
6. FORCIBLE ENTRY AND DETAINER.
A forfeited tax land patent from the state held by defendant in possession of certain lands did not show that defendant was wrongfully withholding possession of lands or that he had wrongfully turned plaintiff out of possession, and in absence of evidence showing wherein or how defendant entered possession, plaintiff could not recover.
APPEAL from the circuit court of Neshoba county; HON. PERCY M. LEE, Judge.
A.B. Amis, Jr., of Newton, for appellant.
As we read the history of the action of forcible or unlawful entry and detainer, there was no such civil action known to the common law. Under the English Common Law there was a criminal action akin to our statutory civil action, but as a civil proposition, under the English Common Law, an owner or person deprived of possession of real property had the right by force of arms to retake possession.
11 R.C.L. 1136, paragraphs 2 and 3; 11 R.C.L. 1137, par. 4, under title: "Forcible entry and detainer" says: "The general purpose of the statutes of forcible entry and detainer, both in England and in this country, is that regardless of the actual condition of the title to the property, the party in peaceable and quiet possession shall not be turned out by strong hand, violence or terror."
The lawmakers of this state have seen fit to adopt into our statutory law the chapter on unlawful entry and detainer as Chapter 69, Code 1930. They by so doing then enact and adopt statutes in derogation of the English Common law and such statutes being so in derogation of the Common Law must be strictly construed, and one bringing an action under the statute must come within the statute.
26 C.J. 810; Spears v. McKay, Walker 265; Murf v. Mallpin, 113 Miss. 670; Robinson v. Boggan, 97 Miss. 27; Owen v. Monroe County, etc., 77 Miss. 500; 26 C.J. 843.
So ever since the adoption of Chapter 56, Hutchinson's Code, the rule in Mississippi has been different from the common law rule.
Section 3456, Code 1930; Hollman v. Bennett, 44 Miss. 322; McCorkle v. Yarrell, 55 Miss. 577.
This court likewise in construing Section 3456, Code 1930, and/or its forerunner has consistently held as was announced in the case of Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383: "It is obvious that the appellees never were in actual possession. Hence they could not have been deprived of the possession in anyway. It is equally clear that there was no `contract, express or implied' as to the possession between appellants and appellees, `after the expiration of which the appellants held over.' This action lies only in the cases specified in the statute."
Taylor v. Orlansky, 92 Miss. 761, 46 So. 50, 136.
Before this remedy can be invoked it must be shown that the party seeking to invoke it has been deprived of the possession of the land sought to be recovered under it.
Robinson v. Boggan, 97 Miss. 27; Glenn v. Caldwell, 74 Miss. 49, 20 So. 152; Taylor v. Orlansky, 92 Miss. 761, 46 So. 50, 136.
The appellee did not contend or attempt to show that the appellant was depriving him of possession of the land by force, intimidation, fraud, stratagem, or stealth and so the case can't be laid there. The appellee did not contend that appellant was his tenant, vendee, vendor, mortgagor, or grantor. The appellee did not contend that he was appellant's landlord, vendor, vendee, mortgagee, or trustee or cestui que trust. Maybe, however, he contended that he was the "other person," as referred to in the statute. What difference though would that make unless and until he first shows the contractual relation as shown and required by the statute?
In order to sustain a recovery, plaintiff must show all the facts which are necessary to entitle him thereto, defendant not being required to offer any proof until plaintiff by the weight of his evidence has shifted the burden of defense on defendant.
26 C.J. 857, par. 122.
The whole proof as offered is to the effect that the appellee has a patent to the land, the appellant is in possession of the land, and the appellant deprives the appellee of possession of the land. Is that sufficient proof? Clearly not.
This court has consistently held prior possession of the plaintiff as being necessary, or else some contractual relation to exist as between the parties or their privies.
Glenn v. Caldwell, 74 Miss. 49, 20 So. 152; Spears v. McKay, Walker 265; Murf v. Mallpin, 113 Miss. 670; Robinson v. Boggan, 97 Miss. 27; Owen v. Monroe County, etc., 77 Miss. 500; McCorkle v. Yarrell, 55 Miss. 577; Taylor v. Orlansky, 92 Miss. 761; Cogburn v. Hunt, 56 Miss. 718.
The Legislature realized after the opinion in Cogburn v. Hunt, 56 Miss. 718, that a purchaser of a tax title under the then existing law could not bring the action of unlawful entry and detainer and to cure this and to encourage the purchase of tax titles and tax forfeited lands passed Section 538, Code 1880, likewise realizing the fact that the sovereign had no authority to bring such action it passed Section 897, Code 1880.
Thereafter and in October, 1884 this court in construing Sections 538 and 897, Code 1880, in the case of Crittenden v. Leavenworth, 67 Miss. 32, said: "Section 897 of the Code of 1880 declares that the state and each county shall be entitled to the benefit of all actions to which individuals are entitled in a given state of case and secures to the state the right to bring unlawful detainer in the state of case provided for by Section 538, and its vendee may bring this action as the state could."
In May, 1896 Judge Whitfield wrote his dissenting opinion in the case of Glenn v. Caldwell, 74 Miss. 49, and in April 1908 this court in the case of Taylor v. Orlansky, 92 Miss. 761, 46 So. 50, 136 adopted the holding in the dissenting opinion in the case of Crittenden v. Leavenworth, supra.
Since then it has been recognized that a purchaser at a tax sale could bring the action, but always he was limited to the provisions as fixed by Section 3457, Code 1930.
Section 2788, Code 1930, contemplates no trouble in the purchaser procuring possession and says in effect that if he does procure possession and remain in possession for three years then title is good.
Not so, however, with Section 3457, Code 1930. It straight out contemplates and provides for a suit.
McLemore v. Scales, 68 Miss. 47, 8 So. 844.
The question then arises as to whether or not this is a statute of limitation covered by Section 104, Constitution 1890. We think not.
Tallahatchie County v. Little, 93 Miss. 88, 46 So. 257.
Clearly, if that be not a statute of limitation then the one-year provision in Section 3456 and the one year after two years provision in Section 3457, Code 1930, would not be a statute of limitation under Section 104 of the Constitution.
Clearly the right of action by unlawful entry and detainer is a statutory action in derogation of the common law. By the statute a right of action is created and the right to bring or enforce is fixed within a given time.
L. N.R.R. Co. v. Dixon, 168 Miss. 14, 150 So. 811; Warren County v. Lamkin, 93 Miss. 123, 46 So. 497.
It seems clear to us that this action was and could only be brought if at all under Section 3457, Code 1930.
It is our contention that the state or its patentee has the right to bring unlawful entry and detainer as to tax forfeited lands but only within one year after two years from the date of sale. In the case at bar the property sold for taxes in April 1932 and so far as this record is concerned, the appellant was then on the property as a tenant of the then owner of the property, and the party to whom assessed at the time of such sale, and has continuously remained thereon.
If Section 3457 means anything at all, and if the opinions of this court as heretofore rendered mean what they say, then the right to bring this action was barred on April 4, 1935.
Evidently appellee overlooks the universal rule that the burden is on the plaintiff to make out a case before the defendant is required to offer any proof at all, and the like rule that in an unlawful entry and detainer case, the defendant is not required to plead in writing.
Section 3465, Code 1930.
We take the position that it makes no difference how the appellant came into possession, whether as owner, tenant, squatter or trespasser, the fact nevertheless remains that he was in the actual and peaceable possession of the property involved at the time this suit was filed, and that fact was fully proven by the appellee. Having proven the appellant in possession it was encumbent upon the plaintiff to establish his right to possession as against the defendant, and to make out a case under the statute before the defendant was required to make any proof whatsoever.
Title to the property is not involved and cannot be brought into the case at all. This court has even gone so far as to hold that unlawful entry and detainer would not lie as against a squatter, since in the case of McCorkle v. Yarrell, 55 Miss. 576, this court held that one who claimed the right of possession under a homestead grant from the United States could not sustain the action as against another found in possession. Clearly in that case the defendant being in possession of government lands was a squatter thereon, but even so he was in possession and the action therefore would not lie as against him.
The fact that one has a patent from the state does not offer indisputable proof of ownership of the lands therein described.
While the question is not here involved, may we in passing say that it is our contention that the tax sale was wholly void and that therefore the state took no title and having no title could give no title and therefore no title passed under the patent. If we could in this cause have litigated title then we would most certainly have raised that question, but we understand the rule to be as announced and set forth in:
Loring v. Willis, 4 How. 383; Lobdell v. Mason, 71 Miss. 937; Cummings v. Kilpatrick, 23 Miss. 106; Clarke v. Bourgeois, 86 Miss. 1; McCallum v. Cavin, 149 Miss. 885.
Title to real estate may be litigated and adjudicated as we understand the rule in either a suit in chancery or else in a suit in ejectment. When if ever this title is brought in question in either a proceeding in chancery or in an ejectment suit, then we will show that appellee has no title whatsoever to the property involved, but until such suit be brought the only question at issue and that can be decided in this cause is the right of possession, and before appellee may recover possession as against appellant he must plant himself squarely under either Section 3456 or Section 3457, Code of 1930.
J.B. Hillman, Richardson Sanford, and A.B. McCraw, all of Philadelphia, for appellee.
The record reveals without question that the appellee is the owner of the land described in the affidavit and that he is holding under a valid patent, obtained from the State of Mississippi on October 20, 1938, to 160 acres of land in Neshoba County, Mississippi, and that said patent was filed for record on October 21, 1938, and that said patent was filed for record on October 21, 1938 and recorded in the office of the Chancery Clerk of Neshoba County, Mississippi. That on November 26, 1938 the appellee filed his unlawful entry and detainer suit before three justices of the peace of Neshoba County, State of Mississippi.
The appellant does not contend that the sale is void or defective but simply argues that the appellee does not have a remedy of unlawful entry and detainer and he further contends that the appellee brought this suit under Section 3457 of the Code of 1930. Appellee contends that Section 3457 has no application and that this suit is maintainable under Section 3456, Code of 1930.
Appellee contends that Section 3457 does not, in any wise, have anything whatever to do with this suit. This section was, in our opinion, made by the law so as to give a purchaser at a tax sale the right to confirm his title, providing he complies with this section.
Section 3457 could not apply in this case to a purchaser from the state, as the state does not purchase the land, as was held in Hodge Ship Building Company et al. v. City of Moss Point, 110 So. 227, wherein the court said in defining the meaning of the word purchaser as used in this statute, "A purchaser is one who acquires real or personal property by buying it for a price in money, a buyer vendee."
Black's Law Dictionary, Page 967; Cheatham v. Bobbitt, 118 N.D. 343, 24 S.E. 13; Barrett Mercantile Company v. Nelson Company, 14 N.D. 407.
Appellee contends that Section 3456 of Code of 1930 is broad enough to cover and does cover this proceeding and that Section 3249 of the Code of 1930 under which the sale in question here was made, does not contemplate that the state will ever be considered a purchaser.
Hodge Ship Building Company v. City of Moss Point, 110 So. 227.
When appellee purchased this land from the State of Mississippi on October 20, 1938, he found appellant in possession of same. There is nothing in this record to indicate from whom he claims this right of possession — whether from the state or from the former owners — neither is there anything to indicate under what right he claims possession. Appellant did not deny that appellee was entitled to possession, and did not undertake to set out any facts that would deprive appellee of the right of possession.
The language of Section 3456 clearly indicates that the purchaser at a tax sale can bring this suit, but if for the sake of argument, it should be conceded that appellant is right in his contention that such a suit cannot be brought under said Section and that 3457 applies, the appellee could still bring the suit even though it had been six years since the tax sale in question, for the reason that the statute of limitations does not run against the state under Section 104 of the Constitution, and he brought his suit in a little more than a month from the time he secured the patent from the state and within the year prescribed by the statute.
The appellee, William W. Majure, instituted an action of unlawful entry and detainer for the possession of certain lands, before three justices of the peace. The unlawful entry and detainer court entered a judgment in favor of Majure, from which judgment an appeal was prosecuted to the Circuit Court, where the case was heard by agreement of parties before the judge of the court, without the intervention of a jury.
When the appellee had concluded his testimony, the appellant, Sistrunk, moved the court to exclude the evidence and enter a judgment for him. This motion was overruled by the court, and a judgment was entered, awarding possession of the lands in controversy to Majure.
The appellant offered in evidence a forfeited tax land patent from the state of Mississippi, executed by the State Land Commissioner and the Governor of the state, dated October 20, 1938, this instrument being filed on the next day for record in the Chancery Clerk's office in Neshoba county. On November 26, 1938, this proceeding was instituted.
In addition to this evidence Majure, as witness for himself, testified that Sistrunk was in possession of the lands, that he had the forfeited land tax patent; that he was deprived of possession of the land by Sistrunk, possession to which he claimed that he was entitled.
It was agreed by the parties that the lands involved were sold by the sheriff and tax collector of Neshoba county on April 4, 1932, for taxes due thereon for the year 1931; that the land was not redeemed from the tax sale, but in due course the chancery clerk of Neshoba county certified to the Land Commissioner's office, where title remained until purchased by the defendant; and it is admitted that the appellant, Sistrunk, is now in possession of the property.
Sections 3456, 3457, Code of 1930, shows who may be made parties plaintiff to a petition, and who may be made parties defendant. In unlawful entry and detainer cases it is essential, and the burden of proof is on the complaining party to show that the defendant unlawfully withholds possession of the land in controversy. The appellant offered no evidence, and there is nothing in this record to show wherein or how he entered possession, or what relation there was between parties plaintiff and defendant in the court below; nor was there anything to show what relation there was between the defendant and any of the predecessors of Majure in title to the land.
The action of unlawful entry and detainer is statutory, and the statutes authorizing the remedy are strictly construed, because they are in derogation of the common law. The action is merely one for possession of the land, and does not involve the title thereto. It may be that Majure had a perfect legal title thereto, and yet not be entitled to the possession thereof when the proceeding was instituted. In other words, the mere fact that Majure had an outstanding muniment of title is not proof that Sistrunk held possession of the land unlawfully.
In the case of McCorkle v. Yarrell, 55 Miss. 576, this Court held that the plaintiff in unlawful entry and detainer, who entered the lands from the United States Government, cannot maintain the action against persons who had wrongfully settled upon the lands. In other words, the defendant in the action there was a trespasser. The certificate of entry from the government entitled the party to whom it was issued to go upon the land, and hold it, under the acts of congress for a length of time before he could secure a patent.
The title deeds in a proper case are admissible only for the purpose of proving the right to, and the extent of, possession of the complaining party. McCallum v. Gavin, 149 Miss. 885, 116 So. 94. But the letters patent in the case at bar do not tend to establish that the appellant was wrongfully withholding possession of the property, or that he had wrongfully turned Majure out of possession thereof. There is no view of the case upon which the judgment of the court below can be upheld.
Reversed and judgment here for appellant.