PRICE v. MOSS

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Docket Number

No. 38410.

Judges

Holmes, J.

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PRICE v. MOSS.

John Horan, for appellant.

I. The affidavit for possession and the deed to the plaintiff offered in evidence describes the land as the west half of the Northwest quarter of Section 31, Township 7, Range 3; also a fractional part of the Northeast quarter of Section 36, Township 7, Range 4 West containing 75 acres more or less, and the judgment of the court describes the land last mentioned as a fractional part of the northeast quarter of Section 36, Township 7, Range 4 West containing 75 acres more or less. In such case the judgment failed to describe the property so that it could be located, and was insufficient to support the cause of the action. Murf v. Maupin, 113 Miss. 670, 74 So. 614; Plenny v. Ferrell, 11 So. 506; Delk v. Herbert, 153 Miss. 869, 121 So. 845; Hamner v. Yazoo Delta Lbr. Co., 100 Mss. 349, 56 So. 466; Niles v. Davis, 6 Miss. 750; Lazar v. Gaston, 67 Miss. 275, 7 So. 321; Ransom v. Young, 176 Miss. 194, 168 So. 473; Paden v. Gibbs, 88 Miss. 274, 40 So. 871.

II. The proof made by appellee shows that Ike Price the adult son of the appellant, Lofton Price, was the lessee of the appellee and in possession of the premises under his lease. In such case it was essential that the burden of proof was on the plaintiff below, appellee here, to show that the defendant below, appellee here, unlawfully withheld possession of the land in controversy. Murf v. Maupin, 113 Miss. 670, 74 So. 614; Sistrunk v. Majure, 186 Miss. 174, 192 So. 5; Holmers v. Elmer, 183 Miss. 174, 181 So. 325; McCorkle v. Yarrell, 55 Miss. 576; Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383; Taylor v. Orlanshy, 92 Miss. 761, 46 So. 136; Walton v. Wall, 110 Miss. 361, 70 So. 549; Hammel v. Atkinson, 82 Miss. 465, 34 So. 225.

We respectfully submit that an action of unlawful entry and detainer will not lie in the case at bar. In the first place Lofton Price was owner of this land having come in possession in 1919 and if the land was sold by the trustee in 1937 the record doesn't show that any action was taken to gain possession of the land by plaintiff or his predecessor in title for much longer than a year thereafter. In the second place the description of the land described in the judgment is too vague and indefinite. The sheriff or other officer undertaking to put the plaintiff in possession could not tell with certainty where the land is located; and if the plaintiff below, appellee here, was the landlord, then whose landlord was he? According to the proof made by him he certainly was not the landlord of the defendant Lofton Price. The man he testified that he rented the premises to is Lofton Price's son, Ike Price, who is a veteran of World War Two, having returned home from the Army in 1946, at which time the plaintiff below, appellee here, testifies that he rented the premises to Ike Price. The appellee testified that he told the defendant in the fall of 1950 to vacate. The appellee admitted that he rented the land to Ike Price and then he admitted that he never had never given the defendant a written notice to move. According to the proof made by appellee, Ike Price was his tenant and in possession of the premises under his lease.

Will A. Hickman, and Chester L. Sumners, for appellee.

I. The appellant having failed to raise the questions relied on in his brief in the lower court should not be permitted to raise the questions for the first time on appeal.

This Court has repeatedly held that questions not raised in the lower court will not be considered on appeal, the most recent case being Adams, et al. v. Board of Supervisors of Union County, 177 Miss. 403, 170 So. 684, wherein the Court stated: "It is a long-established rule in this State that a question not raised in the trial court will not be considered on appeal. George v. L. N.R.R. Co., 88 Miss. 306, 40 So. 486; Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242; Estes v. Memphis C. Ry. Co., 152 Miss. 814, 119 So. 199; Whittington v. H.T. Cottam Co., 158 Miss. 847, 130 So. 745, 746, 76 A.L.R. 332; Mitchell v. Finley, 161 Miss. 527, 137 So. 330. And that is the general rule, with few exceptions, as to constitutional questions."

In addition to the fact that no pleadings were filed and no objections made, the appellant offered no evidence and, although present, failed to testify. Proof clearly showed the relation of landlord and tenant, that the tenant was withholding possession, and that the suit was brought in less than a year after the termination of the lease.

II. The description is sufficient under the facts in the case.

In addition to the fact that the question of description was not raised in the trial court, we submit that the description is sufficient under the present case. The affidavit filed by the appellant raises the question of title, but not on the ground of insufficient description. He claimed by adverse possession, and having claimed by adverse possession, could only claim the land he was occupying. There was never at any time any question raised indicating there was any dispute or misunderstanding as to the land occupied. The appellant had been working the land and Moss, although renting the cultivatable land to Lofton since purchasing it in 1941, had also occupied and used some of the land himself. There is no evidence that the sheriff could not easily locate the land. The sheriff had no difficulty in finding the appellant to serve process upon him.

The cases cited by the appellant that the description is insufficient are not in point with the facts in this case.

III. The evidence is without dispute that the appellee had a contract with both Ike Price and Lofton Price for the year 1950 and that Lofton Price is the tenant withholding possession.

The rent agreement was made with both Lofton Price and Ike Price, with Ike living on Mr. Shaw's place and Lofton on the land and place rented from appellee, with the definite understanding that it was for one year and that Lofton was to vacate at the end of the year. Upon the failure of Lofton to vacate upon the termination of his lease and in accordance with his agreement, the appellee proceeded, as landlord, under Sec. 1033 Code 1942 to obtain possession. The rent for the year 1950 was paid.

The action of unlawful entry and detainer is merely possessory, and does not involve title. Spears v. McKay, Walk 265; Loring v. Willis, 4 How. 383; Clark v. Bourgeois, 86 Miss. 1, 38 So. 187.

The appearance of the defendant and his participation in the trial is an admission, in absence of evidence to the contrary, that he was withholding land from the plaintiff. Huff v. Murray, 171 Miss. 656, 158 So. 475. There is no evidence to the contrary in the present case.

Sec. 1033 Code 1942 requires that an action be brought within one year after the right of action accrues. The appellee's right of action accrued on January 1, 1951, and proceedings were instituted on April 24, 1951.

IV. No notice was required.

Under Landlord and Tenant, Sec. 946 of the Code, provides that notice shall be required only when the term of the lease is not to expire at a fixed time. As stated above, and without dispute, Lofton Price's lease terminated at the end of 1950. In any event, an oral lease would be good for one year only, but the appellee expressly advised the parties at the time the lease was made that he would not want to renew it and would want the premises vacated at the end of the year.

1. Landlord and tenant — tenant's term to expire at fixed time — notice to quit.

When the rental term is to expire at a fixed time, notice to the tenant to quit is not necessary.

2. Landlord and tenant — adverse title.

A tenant cannot assert title adverse to his landlord, including title by adverse possession.

3. Landlord and tenant — unlawful entry and detainer — limitation of actions.

Where the tenant's term under his rental contract expired on a fixed date the landlord had one year from the fixed date within which to bring his action of unlawful entry and detainer. Sec. 1033 Code 1942.

4. Unlawful entry and detainer — judgment — description of premises.

The record in an action of unlawful entry and detainer must be so certain that the sheriff in executing the judgment could go on the land from the description there to be seen and he cannot act on inquiry dehors the record.

5. Unlawful entry and detainer — description of land — uncertainty.

The description of the land in the record and the judgment in an action of unlawful entry and detainer "as a fractional part of the NE 1/4 of Sec. 36, T. 7, R. 4 W containing 75 acres more or less", is so indefinite and uncertain as to be void.

Headnotes as approved by Holmes, J.

Holmes, J.

This is an action of unlawful entry and detainer brought by the appellee, William Harper Moss, as plaintiff, against the appellant, Lofton Price, as defendant, to recover the possession of land in Lafayette County. The special tribunal convened according to law to try the case rendered a judgment for the plaintiff. The defendant appealed to the Circuit Court where the case was tried de novo, resulting in a judgment for the plaintiff. From this judgment the appellant prosecutes this appeal.

The land involved was described in the appellee's original complaint and affidavit, and in the judgment, as follows:

The W 1/2 of the NW 1/4 of Section 31, Township 7, Range 3 W, containing 80 acres more or less. Also a fractional part of the NE 1/4 of Sec. 36, Township 7, Range 4 W, containing 75 acres more or less. The above land being the same land deeded to Lofton Price on December 24, 1919 by L.B. Buford, et al., and recorded in deed book 84, page 110 in the office of the chancery clerk of Lafayette County, Mississippi. And being the same land deeded to J.B. Brown by R.C. Jones, trustee, on May 1, 1937, and recorded in deed book 109, page 376, in the office of the chancery clerk of Lafayette County, Mississippi.

By way of defense the appellant filed an affidavit in which he denied that he was unlawfully withholding the possession of the land described as the W 1/2 of the NW 1/4 of Section 31, Township 7, Range 4 W, 75 acres more or less in Lafayette County, Mississippi. It will be noted that the description of the land set forth in the appellant's affidavit does not correspond with any of the land described in the appellee's complaint. It is inferable from the record, however, that the appellant was undertaking to defend as to that land described in the appellee's complaint as a fractional part of the NE 1/4 of Section 36, Township 7, Range 4 West, containing 75 acres more or less, but that he erroneously described in his affidavit this particular tract. The appellant also in his affidavit asserted title and the right of possession to the land under a claim of adverse possession.

The record discloses the following undisputed facts: The appellant acquired the land by purchase in 1919. In May, 1937, the land was conveyed to J.B. Brown by a Trustee's deed which was manifestly executed pursuant to the foreclosure of a deed of trust. The appellee purchased the land from J.B. Brown in 1941, but a deed thereto pursuant to said purchase was not obtained by the appellee until April 16, 1951. Upon the appellee's purchase of the land in 1941 he immediately contacted the appellant and advised him of his purchase and inquired of him if he desired to remain on the land as a tenant. An agreement was reached between the appellee and the appellant whereby the appellee rented the land to the appellant for the year 1941 at a rental of two five hundred pound bales of cotton. A like agreement was entered into between the appellant and the appellee for each of the years 1942, 1943, 1944, and 1945, and the appellant paid to the appellee the agreed rent for each of said years. In the year 1946 the appellant's son, Ike Lofton, returned from the Army, and the appellee then entered into an agreement with appellant and his son Ike, whereby the appellee rented to the appellant the land for the year 1946 at a rental of three five hundred pound bales of cotton. A like rental contract was made for each of the years 1947, 1948, and 1949, and the rent paid for each of said years. A new rental contract was entered into between the appellee and the appellant and his son Ike for the year 1950, whereby it was agreed that the appellant's son Ike would be permitted to make a crop on the land for said year, and the appellant would be permitted to live on said land for said year, and the appellee was to receive one-fourth of the crop as rent, and the possession of the land was to be surrendered to the appellee at the expiration of the year 1950. The appellee demanded possession of the land at the expiration of the year 1950, and such possession was refused. The appellee then instituted this suit against the said Lofton Price, there being no disclosure in the record as to whether the said Ike Price had removed from the land or not.

The appellant urges numerous grounds for the reversal of the judgment of the court below. He first contends that no written notice was given by the appellee to vacate the premises. There is no basis in the record, however, for this contention. The undisputed proof shows that the final rental agreement between the parties was for the rental of the land for the year 1950, and that possession of the land was to be surrendered to the appellee at the expiration of the year 1950. (Hn 1) The rental term was therefore for a fixed period, and was to expire at a fixed time, namely, the expiration of the year 1950. It is only where the rental term is not to expire at a fixed time that notice to quit becomes necessary. Section 946, Mississippi Code 1942.

It is also contended by the appellant that he was in continuous and actual occupancy of the land since the conveyance of the same by the trustee's deed to J.B. Brown in May, 1937, and that he is therefore vested with title to the land and the right of possession thereof by adverse possession. We think this contention of the appellant is untenable. According to the undisputed proof the appellee purchased the land in 1941 and took possession thereof, and thereafter rented the land to the appellant for each of the years 1941 to 1950, both inclusive, and the appellant recognized the existence of the relationship of landlord and tenant as between him and the appellee by entering into such rental agreements and paying rent to the appellee pursuant thereto. It is well settled that (Hn 2) a tenant cannot assert title adverse to his landlord. Wilson v. Peacock, 111 Miss. 116, 71 So. 296; Stier v. Surget, 10 Smedes M. 154; Shell Pet. Corp. v. Yandell, 172 Miss. 55, 158 So. 787.

(Hn 3) Again, the appellant argues that the appellee is not entitled to maintain his action because the same was not brought within one year after the execution of the trustee's deed to J.B. Brown in May, 1937, it being contended by the appellant that he has since the date of said deed been in the continuous occupancy and possession of said land and that any right of action to dispossess him accrued as of date of said trustee's deed. He relies upon Section 1033 of the Mississippi Code of 1942 providing that an action of unlawful entry and detainer must be brought within one year after the right of possession accrues. The fallacy of the appellant's argument, however, is revealed by the facts of this case. The appellee purchased the property in 1941, and thereafter rented the land to the appellant under separate agreements for each of the years 1941 to 1950, both inclusive. Under a specific agreement made for the rental of the land for the year 1950 the appellant was under an obligation to surrender the possession of the same at the expiration of said year. Appellee's right to the possession of the premises did not accrue until January 1, 1951. This action was brought on April 24, 1951, and it is apparent, therefore, that the action is not precluded by the provisions of Section 1033 of the Mississippi Code of 1942.

It is finally contended, however, that the judgment of the court below should be reversed because the description of the property disclosed by the record is void for indefiniteness and uncertainty. We think there is merit in this contention of the appellant in so far as concerns a part of the land involved. The description of the land as disclosed by the record is as follows: The W 1/2 of the NW 1/4 of Section 31, Township 7, Range 3 W, containing 80 acres more or less; also a fractional part of the NE 1/4 of Section 36, Township 7, Range 4 W, containing 75 acres more or less. There is no uncertainty in the description as to that part of the land described as the W 1/2 of the NW 1/4 of Section 31, Township 7, Range 3 West, containing 80 acres more or less. (Hn 5) The description of the remaining land, however, which describes the land as a fractional part of the NE 1/4 of Section 36, Township 7, Range 4 W, containing 75 acres more or less, is so indefinite and uncertain as to be void. Delk v. Hubbard, 153 Miss. 869, 121 So. 845. No proof was offered to more definitely identify and describe the land to the end that a more definite and certain description thereof could be incorporated in the judgment so as to enable the sheriff to go upon the land and locate it without the necessity of inquiry dehors the record. On the contrary, this indefinite and uncertain description is the only description of this particular tract set forth in the judgment. In the case of Paden v. Gibbs, 88 Miss. 274, 40 So. 871, which dealt with an action of unlawful entry and detainer, the court said " (Hn 4) The record must be so certain that the sheriff could go to the land from the description there to be seen. * * * he could not act on inquiry dehors the record."

It follows, therefore, that the judgment of the court below is affirmed in so far as it affects the land described as the W 1/2 of the NW 1/4 of Section 31, Township 7, Range 3 W, containing 80 acres more or less, but it is reversed and remanded in so far as it affects the land described as a fractional part of the NE 1/4 of Section 36, Township 7, Range 4 West, containing 75 acres more or less.

Affirmed in part and reversed and remanded in part.

Roberds, P.J., and Alexander, Lee and Arrington, JJ., concur.

PRICE v. MOSS.

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