ANDERSON, ET AL. v. BOYD, ET AL

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No. 40296.

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ETHRIDGE, J.

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ANDERSON, et al. v. BOYD, et al.

Barnett, Jones Montgomery, Jackson; H.V. Wall, Brookhaven, for appellant, Mrs. M.M. Anderson.

I. The foreclosure of the vendor's lien in 1934 was an absolute nullity as to the then owners of the record title, Mrs. M.M. Anderson, Homer Howell, Trustee, and Robert Sammons. Seale v. Easterling, 196 Miss. 496, 17 So.2d 324; Rowe v. Beers, 59 Miss. 371; Mullins v. Sparks, Admr., 43 Miss. 129; Champlin v. McLeod, 53 Miss. 484; Yates v. Council, 137 Miss. 381, 102 So. 176; Thompson v. Williams, 18 Miss. 173, 10 Sm. M. 173; Peeples v. Boykin, 132 Miss. 359, 96 So. 177; Nichols v. Gaddis McLaurin, Inc., 222 Miss. 207, 75 So.2d 625; Sec. 711, Code 1942; Griffith's Miss. Chancery Practice, Sec. 116.

II. J.C. Smith was a tenant in common with Mrs. M.M. Anderson by his purchase of the half interest of Homer Howell, Trustee, a co-owner with Mrs. Anderson. Cohea v. Hemingway, 71 Miss. 23, 14 So. 734; Hauer v. Davidson, 113 Miss. 696, 74 So. 621; Wolfe v. Wolfe, 207 Miss. 480, 42 So.2d 438; White v. Turner, 197 Miss. 265, 19 So.2d 825; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Sec. 834, Code 1942; Mississippi Digest, Tenancy in Common, Secs. 13-38, Mutual Rights, Duties, and Liabilities of Cotenants.

III. There can be no adverse holding until an ouster occurs with actual knowledge, or its equivalent, to the tenant attempted to be ousted. James v. Rowan, 14 Miss. 393, 6 Sm. M. 393; Bently v. Callaghan, 79 Miss. 302, 30 So. 709; Watson v. Vanson, 108 Miss. 600, 67 So. 61; Peeples v. Boykin, supra; Farnsworth v. O'Neal, 158 Miss. 218, 130 So. 101; Howard v. Wactor (Miss.), 41 So.2d 259; Hurst v. Griffin Sons, 209 Miss. 381, 46 So.2d 440, 47 So.2d 811; Nichols v. Gaddis McLaurin, Inc., supra.

IV. The record in this case shows no act of ouster on the part of Smith and his successors in title except the recording of the decree appointing the Commissioner to sell the land, and the void Commissioner's deed to Smith, and subsequent conveyances by Smith and his successors in title. Peeples v. Boykin, supra; Nichols v. Gaddis McLaurin, Inc., supra; Hurst v. Griffin Sons, supra; Vanzandt v. Vanzandt, 227 Miss. 133, 85 So.2d 792; Cook v. Mason, 160 Miss. 811, 134 So. 139; Miles v. Collinsville Methodist Church (Miss.), 46 So.2d 110; Geoghegan v. Krauss, 228 Miss. , 87 So.2d 461; Stephens Lbr. Co. v. Hughes (Miss.), 38 So. 769; Dedeaux v. Bayou Delisle Lbr. Co., 112 Miss. 325, 73 So. 53; Sec. 711, Code 1942; 2 C.J. 67.

V. The proof is wholly insufficient to support a finding of fact that there has been an open, notorious and exclusive possession of this land for the statutory period of ten years by J.C. Smith and his successors in title, who constitute for the purposes of this argument, the Boyd group. Cohn v. Smith, 94 Miss. 517, 49 So. 611; Geoghegan v. Krauss, supra.

Satterfield, Shell, Williams Buford, Jackson, for appellants, Robert A. Sammons and Mrs. Eula Mae Calame.

I. The attempted process by publication was wholly insufficient to support any proceedings or decree in the suit to foreclose the vendor's lien. Rice v. McMullen, 207 Miss. 706, 43 So.2d 195.

II. The attempted foreclosure of the vendor's lien was of no effect and null and void as to these appellants, Robert A. (Ardell) Sammons and Mrs. Eula Mae Calame, because they were not named as parties thereto nor was their predecessor in title, Robert A. (Abner) Sammons named as a party, though the legal title to the severed interest appeared of record to be in the name of Robert A. Sammons. Seale v. Easterling, 196 Miss. 496, 17 So.2d 324; Griffith's Miss. Chancery Practice, Sec. 118.

III. The two-year statute of limitations (Section 745, Code of 1930), relative to property sold by order of a Chancellor, has no application to these appellants because they were not parties to the Court proceeding but were strangers to the record. Pennington v. Purcell, 155 Miss. 554, 125 So. 79.

IV. Since the severance of the said one-fifth mineral interest in February and March, 1931, there has been no adverse possession of said minerals as against these appellants. Cook v. Farley, 195 Miss. 638, 15 So.2d 325; Levy v. Campbell, 200 Miss. 721, 28 So.2d 224; State v. Wilbe Lbr. Co., 217 Miss. 346, 64 So.2d 327.

V. As to the cross-appeal, the cross-appellants say that there was "never a severance of these two-tenths' minerals from the land estate." They cite no authority for this position and it is contrary to the record showing that the mineral deeds first conveying this two-tenths' interest (in two deeds of one-tenth mineral interest each) were delivered and recorded months prior to the attempted foreclosure proceedings. They say there could be no severance until the balance due, secured by the vendor's lien (existing against the land at the time these mineral deeds were given) had been paid in full. This is flatly contrary to the holding of this Court in Seale v. Easterling, supra.

VI There is no contention by these appellants that the severed minerals were free from the vendor's lien at the time of the foreclosure proceedings being admittedly void, there was no title that ever passed thereunder, and these appellants still own their minerals.

R.L. Netterville, Natchez, for appellee, Estate of Charles F. Engle; J.H. Keyer, Natchez, for cross-appellants, Mrs. Bessie Griffing Boyd, et al.

I. The findings of the facts by the Chancellor will not be reversed unless manifestly wrong. Sharp v. Learned, 202 Miss. 393, 32 So.2d 141; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 239; Bacot v. Holloway, 140 Miss. 120, 104 So. 696; Stevenson v. Swilley, 156 Miss. 522, 126 So. 195; Logan v. Rice, 166 Miss. 454, 147 So. 662; Smith v. Batesville Security Bank, 222 Miss. 38, 75 So.2d 77; Thames v. Thames, 222 Miss. 617, 76 So.2d 706; Griffith's Miss. Chancery Practice, Sec. 674.

II. The Commissioner's sale, ordered by the Chancery Court of proper jurisdiction, was in good faith and for an adequate consideration, purchase, entry, and possession was by a stranger to the title; therefore, complainants are estopped from attacking the validity of sale more than two years after sale and possession. Neely v. Craig, 162 Miss. 712, 139 So. 835; Gill v. Johnston, 206 Miss. 707, 40 So.2d 600; Stewart v. Matheny, 66 Miss. 21, 5 So. 387; Hawling v. Blake, 110 Miss. 225, 70 So. 247; Jones v. Crawford, 201 Miss. 791, 30 So.2d 57; Sec. 745, Code 1942.

III. Charles F. Engle, deceased, his predecessors in title, were in continuous, open, notorious, hostile and uninterrupted possession of the land continuously for a period long exceeding ten years so as to have a fee simple title ripen unto himself, his devisees, heirs and assigns for all of the surface interest in fee and seven-tenths mineral interest in fee. Lambert v. State, 211 Miss. 129, 51 So.2d 201; Batson v. Smith, 211 Miss. 428, 51 So.2d 749; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Southern Naval Stores Co. v. Price, 202 Miss. 116, 30 So.2d 505; Broadus v. Hickman, 210 Miss. 885, 50 So.2d 717; Page v. O'Neal, 207 Miss. 350, 42 So.2d 391; Lambert v. State, 211 Miss. 129, 51 So.2d 201; McIntyre v. Harvey, 158 Miss. 16, 128 So. 572; Itawamba County v. Sheffield, 195 Miss. 359, 13 So.2d 649; Levy v. Campbell, 200 Miss. 721, 28 So.2d 223; Fant v. Williams, 118 Miss. 428, 79 So. 343; Lowi v. Davis, 134 Miss. 296, 98 So. 684; Legett v. Norman, 192 Miss. 494, 6 So.2d 578; Kersh v. Lyons, 195 Miss. 598, 15 So.2d 768; Heidelberg v. Duckworth, 206 Miss. 388, 40 So.2d 179; Chatman v. Carter, 209 Miss. 16, 45 So.2d 841; Walker v. Easterling, 215 Miss. 429, 61 So.2d 163; Cook v. Mason, 160 Miss. 811, 134 So. 139; Wilson v. Williams, 52 Miss. 487; Alexander v. Polk, 39 Miss. 737; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Davis v. Gibbs, 1 Miss. Dec. 89; Snowden McSweeny Co. v. Hanley, 195 Miss. 682, 16 So.2d 24; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Newberger v. Brewer, 201 Miss. 92, 28 So.2d 654; 1 Am. Jur., Sec. 185 pp. 866, 869-70, 872-75, 877, 879, 885, 894.

IV. Complainants and cross-complainant, Mrs. M.M. Anderson, were all guilty of laches. Comans v. Tapley, 101 Miss. 203, 57 So. 567; Reddy v. Aldrich (Miss.), 11 So. 828; Boyd v. Entrekin, 209 Miss. 51, 45 So.2d 848; Alewine v. Titcock, 209 Miss. 362, 47 So.2d 147; Cotten v. Cotten, 203 Miss. 316, 67 So.2d 268; 19 Am. Jur., Equity, Secs. 489-513.

V. The complainants, Sammons, and cross-complainant, Mrs. M.M. Anderson, did not tender unpaid purchase price into Court. Rush v. Pearson, 92 Miss. 153, 45 So. 723; Barber v. Levy (Miss.), 18 So. 438; Craft v. Dullard, Sm. M. Ch. 366; Griffith's Miss. Chancery Practice (2d ed.), Sec. 522.

VI. J.C. Smith entered possession not as a cotenant. Joyce v. Dyer, 109 Am. St. 609-11; Gardiner v. Hinton, 86 Miss. 604, 30 So. 779; Freeman on Cotenancy, Sec. 224.

VII. The facts of this case support the findings of the Chancellor as to the interest of Charles F. Engle Estate.

VIII. The Chancellor was manifestly wrong as to law in adjudicating the Sammons interest with two-tenths of the minerals and holding that when Leo Alverdo and wife conveyed to Robert A. Sammons one-tenth of the minerals on two different occasions that they created a separate estate for the two-tenths mineral interest separate and apart from the land estate. Clower v. Rawlings, 9 Sm. M. 122, 47 Am. Dec. 108; Walton v. Hargroves, 42 Miss. 18, 98 Am. Dec. 429; Scottish Union Natl. Ins. Co. v. Warren Gee Lbr. Co. (Miss.), 80 So. 9; Merrill Engineering Co. v. Capital Natl. Bank, 192 Miss. 378, 5 So.2d 666; Vol. X, Thompson on Real Property, Sec. 5244.

1. Vendor and purchaser — foreclosure of vendor's lien — void as to grantees of recorded conveyances from purchaser — who were not named parties to proceeding.

Attempted foreclosure of vendor's lien reserved in vendor was invalid and void as to the grantees of a recorded deed and recorded mineral deeds from the purchaser, who were not made parties to the foreclosure proceeding.

2. Vendor and purchaser — statutes — limitations — actions for property sold by order of Court — statute not applicable to parties who should have been but were not made parties to foreclosure proceedings.

Statute providing that an action shall not be brought to recover any property hereafter sold by order of a Chancery Court where sale is in good faith and purchase money is paid, unless brought within two years after possession is taken by purchaser under such sale of the property, was not applicable to those who should have been, but were not made parties to proceedings for the foreclosure of a vendor's lien reserved in vendor. Sec. 745, Code 1942.

3. Minerals — severance of mineral estate — adverse possession — consists of — what constitutes.

Where a severance of the estate in oil, gas and minerals has been created separate and apart from the land, adverse possession of the land is not adverse to such mineral estate, and adverse possession of the latter must consist of actually taking possession of the minerals by drilling wells, or digging mines, and capturing or taking possession of the minerals.

4. Minerals — severance of undivided mineral interest — adverse possession thereasto — not established.

Where there was a severance of 2/10ths mineral interest from the land, and there was no drilling or mining or production of minerals from the land by those who claimed to have acquired the 2/10ths mineral interest by adverse possession, and there was only grazing of cattle and some cutting of timber on the land, those claiming the 2/10ths mineral interest under mineral deeds were not divested of the 2/10ths mineral interest by any adverse possession.

5. Tenants in common — cotenants — grantee of cotenant as. 6. Tenants in common — estates in common — how created — cotenants — vendee or grantee of cotenant.

One who purchases or obtains by conveyance the undivided share of a tenant in common becomes a cotenant with the remaining owner or owners. Sec. 834, Code 1942.

7. Adverse possession — tenants in common — evidence — insufficient to establish ouster to one-half surface and 3/10ths minerals.

Evidence was insufficient to establish that certain cotenants ousted their cotenant of her record title to one-half of the surface and 3/10ths of the minerals and obtained title by adverse possession for more than ten years.

8. Adverse possession — ouster of cotenants by tenant in common — notice.

In order to establish ouster of cotenants by a tenant in common in possession, so as to initiate and constitute adverse possession, cotenants out of possession must have knowledge of the adverse claim either by actual knowledge or the equivalent thereof.

9. Tenants in common — ouster of cotenants by — evidence required to establish.

In order to establish ouster of cotenants by a tenant in common in possession, ouster must be established by clear and convincing evidence.

Headnotes as approved by Ethridge, J.

ETHRIDGE, J.

This is a controversy over an aggregate of one-half of the minerals and the surface in approximately 93 acres of land in Franklin County. It involves issues of adverse possession of a severed mineral interest, the question of a cotenancy, and ouster of a cotenant by adverse possession.

The suit was filed in the Chancery Court of Franklin County, by Robert A. Sammons and Eula Mae Calame, the two heirs of Robert Abner Sammons, deceased, hereinafter sometimes referred to as the Sammons group, against Mrs. Bessie Griffing Boyd, Alma M. Alexander, Alice M. Whitt, D.A. Biglane and Charles F. Engle, hereinafter sometimes referred to as the Boyd group, since the latter four persons claim under Mrs. Boyd. Another defendant was Mrs. M.M. Anderson. Before final decree, Engle died, and the suit was revived in the name of his executrix, trustee and devisee, Mrs. Alleyne Carpenter Engle. Mrs. Anderson, claiming a one-half interest in the surface and a 3/10ths mineral interest, filed a cross bill against the complainants and her codefendants. The Sammons group, original complainants, claim a 2/10th mineral interest. The Engle estate claims, under a conveyance from Mrs. Boyd, the entire surface and a 7/10th mineral interest. Mrs. Boyd conveyed to Alexander and Whitt a 3/10th mineral interest, but reserved to herself a life estate in 1/3 thereof, or a 1/10th mineral interest.

The final decree of the chancery court apparently adjudged that Sammons and Calame were the owners of a 2/10th mineral interest, but being somewhat ambiguous in this respect, these parties have appealed asking a specific adjudication in that respect. The court further held that Mrs. Anderson had lost her record title to one-half of the surface and 3/10ths of the minerals by adverse possession of the Boyd group over a period of more than ten years. Mrs. Anderson has appealed from that adjudication. Boyd, Alexander, Whitt and Biglane have cross-appealed from that part of the decree apparently adjudicating the Sammons group to own a 2/10ths mineral interest.

Mrs. C.C. Smitha is the common source of title. On February 1, 1929, she conveyed this tract of land to Leo Alverdo, expressly retaining a vendor's lien to secure the unpaid purchase price. On February 11, 1931, Leo Alverdo and wife conveyed to Homer Howell, trustee, an undivided one-half interest. On February 11, 1931, Alverdo and wife conveyed to Robert Abner Sammons a 1/10th mineral interest, and on March 21, 1931, they conveyed to him an additional 1/10th mineral interest.

On August 17, 1931, Leo Alverdo and wife conveyed to appellant, Mrs. M.M. Anderson, a one-half interest in the surface and a 3/10th mineral interest. This left Alverdo with no interest in the land.

On November 16, 1932, Mrs. C.C. Smitha sued Mr. and Mrs. Leo Alverdo in the Chancery Court of Franklin County to foreclose the vendor's lien in her deed to Alverdo of February 1, 1929. Summons were served only on Alverdo and wife. Sammons, Mrs. Anderson and Howell were not made parties to this suit, although their deeds were on record before the suit was filed. On February 24, 1933, after a decree pro confesso had been entered, a final decree was rendered against the two defendants, Mr. and Mrs. Leo Alverdo.

On January 28, 1934, Mrs. C.C. Smitha quitclaimed her interest in the land to J.C. Smith. On motion of complainant, Mrs. Smitha, a special commissioner was appointed on February 20, 1934, to sell the land. The commissioner sold it on April 2, 1934, to J.C. Smith. This sale was confirmed by the chancery court on report of the commissioner on April 10, 1934. On April 16, 1934, the commissioner executed to J.C. Smith a commissioner's deed, purporting to convey this tract to Smith.

The 1929 deed from Mrs. Smitha to Alverdo conveyed to him other lands in addition to the tract now in issue. In 1936 the U.S. Government filed in the district court eminent domain proceedings to condemn for part of a national park some of the lands affected by this deed, but not the instant tract. Alverdo and Homer Howell, trustee, filed an answer in that proceeding, asserting that the foreclosure of the vendor's lien was invalid because Howell had not been made a party defendant. Around the same time Alverdo filed a suit against J.C. Smith in the Chancery Court of Franklin County, to set aside the foreclosure sale to Smith. These claims by Howell and Alverdo were settled by agreement with J.C. Smith, and on May 17, 1934, Alverdo's wife and daughter, his heirs, and Homer Howell, trustee, quitclaimed their interest in this land to J.C. Smith. Thereafter the Federal eminent domain proceedings were concluded with disbursement to J.C. Smith of the value of the condemned property.

On August 7, 1937, Mr. and Mrs. J.C. Smith conveyed this tract to M.E. Boyd. On December 31, 1938, Boyd conveyed it to T.F. Graves. On July 15, 1939, T.F. Graves deeded the property back to M.E. Boyd.

On February 4, 1944, M.E. Boyd and wife, appellee Mrs. Bessie Griffing Boyd, executed an oil, gas and mineral lease to Mid-Continent Petroleum Corporation, excluding from the conveyance a 2/10th mineral interest conveyed to Sammons by the Alverdos. M.E. Boyd died in 1947, leaving his interest in this land to appellee, Mrs. Bessie Griffing Boyd. On October 8, 1948, she conveyed the land to Charles F. Engle, excepting therefrom a 3/10ths mineral interest. On December 10, 1948, she conveyed to Alexander and Whitt a 3/10th mineral interest, reserving in herself, Mrs. Boyd, a life interest in 1/3 thereof, or a 1/10th mineral interest. On February 19, 1949, Alexander and Whitt, appellees, conveyed to D.A. Biglane, appellee, a nonparticipating 2/10th royalty interest.

(Hn 1) The attempted foreclosure of the vendor's lien reserved in Mrs. C.C. Smitha, by the decree of February 24, 1933, and by the commissioner's deed thereunder to J.C. Smith, in April 1934, was invalid and void as to the appellants, Sammons, Calame and Mrs. Anderson. When the foreclosure suit was filed, the Sammons' mineral deeds and the deed to Mrs. Anderson from Alverdo were of record, yet they were not made parties to the foreclosure proceeding. At that time Sammons was the owner of a 2/10th mineral interest, subject to the vendor's lien, and Mrs. Anderson was the owner of a one-half interest in the surface and a 3/10th mineral interest, subject to the vendor's lien reserved in Mrs. Smitha. In order for any of them to be affected by the foreclosure, it was necessary that they be made parties to that proceeding. Seale v. Easterling, 196 Miss. 496, 17 So.2d 324 (1944); Griffith, Miss. Chancery Practice (2d Ed. 1950), Sec. 118. Alverdo had conveyed away all of his estate in this tract, one-half to Homer Howell, trustee, and the remainder to Sammons and Mrs. Anderson. These deeds were then of record. Hence the attempted foreclosure of the vendor's lien in 1933 and the April 1934 commissioner's deed were invalid and void insofar as the Sammons' mineral interest and the interests of Mrs. Anderson and of Homer Howell, trustee, were concerned.

(Hn 2) Code of 1942, Sec. 745, provides: "Actions for property sold by order of court. — An action shall not be brought to recover any property hereafter sold by order of a chancery court, where the sale is in good faith and the purchase-money paid, unless brought within two years after possession taken by the purchaser under such sale of the property." Appellees contend that this statute precludes appellants from attacking the foreclosure sale, but we cannot agree. The statute has no application to persons who were not parties in the foreclosure proceedings. Pennington v. Purcell, 155 Miss. 554, 125 So. 79 (1929).

(Hn 3) With reference to the 2/10th mineral interest, claimed by Sammons and Calame, the record shows that there has been no adverse possession by appellees of the minerals, by drilling or mining and producing minerals from this tract. Evidence as to possession reflects only grazing of cattle and some cutting of timber. Mrs. Boyd testified that in her oil, gas and mineral lease of 1944 to Mid-Continent Petroleum Corporation she admitted that Sammons owned the 2/10th mineral interest. This interest was severed from the balance of the estate by the two 1931 mineral deeds to Robert A. Sammons. Where a severance of the estate in oil, gas and minerals has been created separate and apart from the land, adverse possession of the land is not adverse to such mineral estate. Adverse possession of the latter must consist of actually taking possession of the minerals by drilling wells, or digging mines, and capturing or taking possession of the minerals. White v. Merchants and Planters Bank, 90 So.2d 11 (Miss. 1956); Cook v. Farley, 195 Miss. 638, 15 So.2d 325 (1943); Levy v. Campbell, 200 Miss. 721, 28 So.2d 224 (1946); State v. Wilbe Lbr. Company, 217 Miss. 346, 64 So.2d 327 (1953). (Hn 4) Hence appellants Sammons and Calame have not been divested of their 2/10th mineral interest by any adverse possession of appellees or their predecessors in title, and our final judgment will adjudicate that they are the owners of an undivided 2/10th interest in the minerals under this tract of land. By the same token, there is no merit in the cross-appeal of Boyd, Alexander, Whitt and Biglane contending to the contrary, and the case is affirmed on cross-appeal.

(Hn 5) The next question is whether a tenancy in common between Mrs. Anderson and J.C. Smith was created on May 17, 1934, when Homer Howell, trustee, owner of a one-half interest in this tract, conveyed by quitclaim deed this interest to J.C. Smith. Since the attempted foreclosure of the vendor's lien and the commissioner's deed to J.C. Smith were void and invalid as to Mrs. Anderson, who was then a record owner of one-half of the surface and 3/10ths of the minerals, and since Homer Howell, trustee, was also an owner of a one-half interest in the land at that time, Mrs. Anderson and Homer Howell, trustee, were tenants in common. On May 17, 1934, Howell conveyed his one-half interest to J.C. Smith. Smith thereupon became a tenant in common in this land with Mrs. Anderson. (Hn 6) It is well established that one who purchases or obtains by conveyance the undivided share of a tenant in common becomes a cotenant with the remaining owner or owners. 86 C.J.S., Tenancy in Common, Sec. 8b; Howard v. Wactor, 41 So.2d 259 (Miss. 1949); 14 Am. Jur., Cotenancy, Secs. 11-13, 20; Code of 1942, Sec. 834. See also Cohea v. Hemingway, 71 Miss. 22 (1894). Hence Mrs. Anderson and J.C. Smith were tenants in common in this land on and after May 7, 1934, when Homer Howell, trustee, conveyed his one-half interest therein to J.C. Smith, and this relationship continued with reference to the successors in title of J.C. Smith, M.E. Boyd, T.F. Graves, Mrs. Bessie Griffing Boyd, Charles F. Engle, and the other appellees.

The remaining question is whether the chancellor was warranted in finding that Smith, Boyd and the appellees divested appellant Mrs. M.M. Anderson, their cotenant, of her record title to one-half of the surface and 3/10ths of the minerals by an ouster and adverse possession for more than ten years.

(Hn 7) After a careful consideration of the testimony of the seven witnesses concerning ouster, adverse possession and lack of it with reference to this land, we conclude that, in the light of the established principles with reference to ouster and adverse possession between cotenants, the evidence is wholly inadequate to establish that appellees ousted Mrs. Anderson from her cotenant's estate and obtained title against her by adverse possession.

(Hn 8) It is well established that possession which in ordinary cases would constitute adverse possession is not sufficient where entry was made as a tenant-in-common. In order to establish ouster of cotenants by a tenant-in-common in possession, so as to initiate and constitute adverse possession, cotenants out of possession must have knowledge of the adverse claim, either by actual knowledge or the equivalent thereof. Nichols v. Gaddis and McLaurin, Inc., 75 So.2d 625 (Miss. 1954); Hurst v. J.M. Griffin Sons, Inc., 209 Miss. 381, 46 So.2d 440 (1950); Vanzandt v. Vanzandt, 85 So.2d 792 (Miss. 1956).

Without lengthening this opinion in order to detail this evidence, it shows in brief that Davis Anderson who owned property to the south placed a fence on the north side of his property, and on the southeast side of this tract for a length of about one-quarter, in order that he might graze some of his cattle on this tract over a period of several years, as authorized by J.C. Smith and M.E. Boyd. The land is shaped like a right triangle, the hypotenuse (the northwest side) being the right of way of a railroad, the east almost vertical line being the west line of a national park and of some property owned by one Graves, and the south line being the north line of land once owned by Davis Anderson. The railroad maintained a fence on the longest side of the triangle, the northwest, in various states of repair, and there was a fence of unidentified repair on the west side. On two occasions over a period of twenty years, some timber and pulpwood were cut off of the property. There have never been any improvements on it. It is not cultivatable. It is rocky with hills and gullies. J.C. Smith and his successors in title have paid taxes on the land, and Mrs. Anderson has paid no taxes on her interest. But of course cotenants have correlative obligations to pay taxes on land, with the right to reimbursement from their fellow cotenants for their share.

(Hn 9) In addition to the established rule requiring knowledge or the equivalent thereof to constitute ouster of a cotenant, such facts must be established by clear and convincing evidence. Nichols v. Gaddis and McLaurin, supra. Applying these principles, it is manifest that appellees wholly failed to show any ouster of Mrs. Anderson and any adverse possessory title against her, in view of the relatively wild nature of this land and the scrambled nature of its sporadic use and possession. For those reasons the chancery court was in error in holding that Mrs. Anderson had been deprived of her record title to one-half of the surface and three-tenths of the minerals and that her cotenants, appellees, were vested with that interest.

On direct appeal, reversed and judgment rendered for appellants; on cross-appeal, affirmed.

Roberds, P.J., and Kyle, Arrington and Gillespie, JJ., concur.

ANDERSON, et al. v. BOYD, et al.

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