Bookmark
PDF
Share
CaseIQ

LEGGETT v. NORMAN

Supreme Court of Mississippi, In Banc.

Mar 9, 1942

Judgment

Subsequent
References

CaseIQ

Case Information

CITATION CODES

citation codes

DOCKET NO.

No. 34866.

Attorney(S)

Welch Cooper, of Laurel, for appellant. On the undisputed facts in this case, the appellant was entitled to a directed verdict. Every element of adverse possession was amply established and was undisputed. Mississippi Code of 1930, Sec. 2287. While it is true that land may be conveyed only by a writing (Code of 1930, Sec. 2111), this does not prevent the vesting of title to lands by adverse possession. Davis v. Davis, 68 Miss. 478, 10 So. 70. The possession may be by a tenant and it is not necessary that C.M. Leggett himself should have occupied the land. Cox v. Richardson, 186 Miss. 576, 191 So. 99, 124 A.L.R. 1138; Scottish American Mtg. Co. v. Butler et al., 99 Miss. 56, 54 So. 666, Ann. Cas. 1913C, 1236. Adverse possession may be used in defense in an ejectment suit. Graham v. Warren, 81 Miss. 330, 33 So. 71. A parol exchange of lands may be shown as the basis for title by adverse possession. Bynum v. Stinson, 81 Miss. 25, 32 So. 910. The fact that the occupancy or claim of the occupant has been questioned does not defeat the right of an occupant in possession for more than ten years. May v. Culpepper, 177 Miss. 811, 172 So. 336. See, also, Hickingbottom v. Lehman, 124 Miss. 682, 87 So. 149; McCaughn v. Young, 85 Miss. 277, 37 So. 839. But the appellees say that although the appellant was in possession of the land, was paying taxes thereon and was making improvements thereon and proclaiming to the world that the land was his, his claim by adverse possession is not good for the reason that he did not serve notice on the appellees that they were the record title owners and that he was claiming as against them. If that is the law, how could title by adverse possession ever be established as against an absent and unknown title owner? The possession of the appellant was constructive notice to all other claimants. Wilson v. Williams' Heirs, 52 Miss. 487; Eastman, Gardiner Co. v. Hinton, 86 Miss. 618, 38 So. 779; 2 C.J. 77, Sec. 59. If Norman had any rights, they passed to his trustee and not to his heirs at law. However, if we should be wrong as to that and if the heirs at law have any interest in the matter, nevertheless, the statute started to run during the lifetime of W.R. Norman and the statute is not tolled by the infancy of some of the heirs at law. Stevenson's Heirs v. McReary, 12 S. M. 9; McCoy, Administrator, etc., v. Nichols, 4 How. 31. There is not one word to indicate that Section 2312 of the Mississippi Code of 1930 has any application. There being no concealed fraud with reference to the claim of Leggett, then Section 2285, Mississippi Code of 1930, applies. See, also, Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341. Jeff Collins, of Laurel, for appellees. The defendant is claiming his right of entry upon this land as having its inception in an oral agreement with W.R. Norman for the sale of the land to Leggett. Unless he did have the agreement with Norman, as he said, he cannot recover in this case and he has the burden of proving this fact. It is a presumption of law that the possession of land is in subordination and not in defiance of the rights of the true owner. Alexander v. Polk, 39 Miss. 737. The law presumes the possession continued as it began, until notice was brought home to the owners that there was adverse possession. Hutto v. Thornton, 44 Miss. 166. Notice was admittedly not given. The facts reveal that the claim was not adverse because it was not notorious. Here there was a relation of trust and confidence and also positive acts of concealment directly towards the party injured. Section 2312, Mississippi Code of 1930, applies here and Mrs. Norman was not bound by Section 2285 of the Mississippi Code of 1930. Mrs. Norman brought her suit as soon as she discovered she had a claim. She did not discover she had a claim because Leggett concealed the facts from her. If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered. Mississippi Code of 1930, Sec. 2312; Buckner v. Calicote, 27 Miss. 432; Edwards v. Gibbs, 39 Miss. 166. The jury found that there was no oral agreement followed by adverse possession. Therefore, the entry was as the law presumes in subserviency to the record title. Argued orally by W.S. Welch, for appellant, and by Jeff Collins, for appellee.

JUDGES

Alexander, J., delivered the opinion of the court.

ACTS

No Acts

See more information ... Less ...

Important Paras

Please sign up to view Important Paras.

1. ESTOPPEL.

Where owners agreed to exchange lands and although grantee did not execute his deed in return, grantor and her son moved upon land, possession and use of land by grantor and son prior to death of grantee, being with his actual knowledge and consent and in obvious compliance with the agreement to exchange land, carried with it a degree of "estoppel" which dispensed with the necessity for imputing constructive knowledge by a notorious occupancy, in establishing title by adverse possession.

2. ADVERSE POSSESSION.

Where owners agreed to exchange lands and although grantee did not execute his deed in return, grantor and son moved, during grantee's lifetime, upon land received in exchange, the fact that heirs of deceased grantee did not know anything of the transaction pursuant to which possession of land was taken did not preclude the statute of limitations from running against them.

3. ADVERSE POSSESSION.

The statute of limitations once put in operation is not tolled by the death of owner.

4. ADVERSE POSSESSION.

Where owners agreed to exchange lands and although grantee did not execute his deed in return, grantor and son moved upon land which was continually occupied by the son since 1927, in action in ejectment by grantee's heirs, the statute postponing the running of limitations until after actual or constructive knowledge of concealed fraud was inapplicable (Code 1930, sec. 2312).

5. ADVERSE POSSESSION.

Under ten-year statute establishing title by adverse possession, knowledge of an open, notorious and adverse possession may be presumed.

6. ADVERSE POSSESSION.

Where owners agreed to exchange lands and although grantee did not execute his deed in return, grantor and son moved on land which was continually occupied by the son since 1927, there was no legal duty upon the son to inform the heirs of the grantee who died in 1929 of rights already accrued nor of any intention to avail thereof, as regards the son's right to defend, on ground of title by adverse possession, action in ejectment by the grantee's heirs.

7. ADVERSE POSSESSION.

Where owners agreed to exchange land and although grantee did not execute his deed in return, grantor and son moved upon land received in exchange, in action in ejectment by grantee's heirs to recover possession of land, testimony of grantee's widow that she did not know of the exchange nor of the claim of grantor's son to the land was irrelevant.

8. ADVERSE POSSESSION.

Where evidence disclosed that owners agreed to exchange land, that grantee did not execute his deed in return but that grantor and son moved upon land, that son resided on land since 1927 and that after grantee's death in 1929, the grantor's son continued to occupy the land, made improvements and repairs, had property assessed to him and paid taxes thereon, the occupancy was hostile and adverse so as to defeat the claim of the deceased grantee's heirs who instituted ejectment action in 1940.

Alexander, J., delivered the opinion of the court.

Mrs. Angenette Leggett owned a tract of land in Wayne County, a half interest in which, after negotiation through her son, the appellant, who was interested in providing a home for her, she undertook to exchange for the lands in suit owned by W.R. Norman. Deed to the Wayne County lands was executed and delivered to Norman, but the latter omitted to execute his deed in return. However, Mrs. Leggett, together with her son and his wife, moved upon the lands here involved, being the NE 1/4 SW 1/4, NW 1/ 4 S.E. 1/4, and the NE 1/4 S.E. 1/4, Section 4, Township 8, Range 11 West, Jones County. There is no dispute that these parties have resided on these lands since 1927.

Norman died two years after the alleged exchange of lands without having delivered his deed to the lands in Jones County. In October, 1940, the widow and other heirs at law of W.R. Norman filed this action in ejectment against appellant and Bruni Leggett and wife to recover possession of the lands above described. Appellant pleaded affirmatively a title to the land by adverse possession. No claim thereto was made by the other defendants, who conceded that they held only as tenants of appellant. From a judgment in favor of appellees, this appellant alone appeals.

The testimony for appellant amply sustains the contention that the land has been continuously, openly, and notoriously occupied by his mother and Mr. and Mrs. Bruni Leggett as tenants by permission and on behalf of appellant. It remains to examine whether such occupancy was hostile or adverse, so as to preclude the claim of the heirs of W.R. Norman. The testimony is undisputed that Norman knew of the transaction and had accepted and recorded his deed to an interest in the Wayne County lands; that he recognized his obligation to execute a deed to the lands in suit but postponed action under pressure of business duties; that materials for repairs on the latter property were ordered by him but paid for by Leggett; and that taxes thereon for the year, 1928, although paid by Norman, were charged to Leggett under Norman's direction. Norman died in August, 1929. It is not without significance that the widow of Norman later sold the interest in the Wayne County lands for $2,000.

Such possession and user prior to the death of Norman, being with his actual knowledge and consent and in obvious compliance with the agreement to exchange lands, carries with it a degree of estoppel which dispenses with the necessity for imputing constructive knowledge by a notorious occupancy. McCaughn v. Young, 85 Miss. 277, 37 So. 839; Trotter v. Neal, 50 Ark. 340, 7 S.W. 384; 2 C.J.S., Adverse Possession, sec. 45, p. 559. Compare Morrison, Trustee, v. Jones, 192 Miss. 567, 6 So.2d 577, this day decided. But appellant's claim does not rest alone upon the fact of actual knowledge by Norman. After the death of Norman, appellant, through his tenants, continued to occupy this land as a home, made improvements and repairs, and Leggett, having had the property assessed to him, paid the taxes thereon. There is no substantial contradiction as to such open, notorious and adverse occupancy.

Appellees contend that since they knew nothing of the transaction pursuant to which appellant took possession, the statute should not run as to them. This contention is without foundation. The statute once put in operation is not tolled by the death of the owner. McCoy v. Nichols, 4 How. 31; Stevenson's Heirs v. McReary, 12 Smedes M. 9, 20 Miss. 9, 58, 51 Am. Dec. 102; Tippin v. Coleman, 61 Miss. 516; 2 C.J.S., Adverse Possession, sec. 155, p. 729; 1 Am. Jur., Adverse Poss'n., Sec. 125. The tenants under Leggett disclaimed any right of title.

Section 2312, Code 1930, has no application. This statute postpones the running of limitations until after the actual or constructive knowledge of concealed fraud. Its application would be inconsistent with the ten-year statute establishing title by adverse possession, since under the latter statute knowledge of an open, notorious and adverse possession may be presumed. Wilson v. Williams' Heirs, 52 Miss. 487, 492; 1 Am. Jur., Adverse Poss'n., Sec. 238. There was no legal duty upon Leggett to inform appellees of rights already accrued nor of an intention to avail thereof. Thornton v. City of Natchez, 88 Miss. 1, 41 So. 498; Gardiner v. Hinton, 86 Miss. 604, 38 So. 779, 109 Am. St. Rep. 726. Since, therefore, the testimony of Mrs. Norman that she did not know of the transaction involving the transfer nor of Leggett's claim was irrelevant and ought to have been excluded, this leaves the proof of adverse possession not only uncontradicted but also buttressed by circumstances showing a compliance with the agreement to exchange lands and the original entry by appellant pursuant thereto. No other consideration was shown to have been paid for the Wayne County lands, except the lands in suit, while, on the other hand, the interest which Norman acquired in the former was realized upon by his widow through a subsequent sale thereof for a substantial price. We are of the opinion that the refusal of the trial court to grant appellant a peremptory instruction was error.

Reversed and judgment here for appellant.