Opinion
No. 38711.
April 20, 1953.
1. Adverse possession — minerals — surface.
The general rule is that where there has been a severance of minerals by an adverse possessor, the continued adverse possession of the surface by the severor or severee inures to the benefit of the severed mineral estate as against the true owner, whether the adverse possessor conveys the surface and reserves the minerals or keeps the surface and conveys the minerals.
2. Adverse possession — minerals — surface.
Where a bank foreclosed a deed of trust on the entire interest in certain land and at the foreclosure purchased the land and thereupon entered into possession by a tenant and thereafter conveyed the property excepting therefrom one-half mineral interest, and the grantee continued the possession, the two periods of unbroken possession being for more than ten years and of such character as to mature the title to the surface by adverse possession, such possession inured to the benefit of the bank's retained mineral interest, and gave to the bank good title thereto.
Headnotes as approved by Ethridge, J.
APPEAL from the chancery court of Jasper County; ROY P. NOBLE, Chancellor.
Buchanan Montgomery, for appellants.
I. The taking of the rent note by the Federal Land Bank from H.P. Anderson, the tenant of appellants, was not such an entry upon the land as would support a claim of ouster of appellants, cotenants of the Bank, so as to put in motion the ten-year statute of limitations of adverse possession. Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Barner v. Lehr, 190 Miss. 77, 199 So. 273; Smith v. Smith, (Miss.), 52 So.2d 1; Vaughan v. McCool, 186 Miss. 549, 191 So. 286; Sec. 711, Code 1942; Wight v. Ingram Day Lbr. Co., 195 Miss. 823, 17 So.2d 196.
II. No actual physical possession of the land having been taken by the Federal Land Bank under the void foreclosure deed, or under the final decree rendered in Cause No. 1355, prior to the sale by the Bank of the land to Chancellor, any color of title which may have been created by such void foreclosure deed and such decree was not availed of by the Federal Land Bank, since the Federal Land Bank did not make any actual entry upon the land thereunder. 2 C.J.S. 170, Sec. 327, 584, Sec. 65(b), 585, Secs. 67, 69; Secs. 711, 718, Code 1942; Secs. 2732, 2730, Code 1892; Woods v. Campbell, 87 Miss. 782, 40 So. 874.
III. Any color of title created by the deed from the Federal Land Bank to Lee Chancellor was limited to the interest conveyed by the deed, and was limited to the interest conveyed to Lee Chancellor. Such deed conferred upon the Federal Land Bank no color of title. 2 C.J. 171, Sec. 328, 172, Sec. 331, 177, Sec. 339, 175, 335, 185, Sec. 355; Thrash v. Ferguson, (Miss.), 62 So.2d 364; 2 C.J.S. 586, Sec. 70, 795, Sec. 192.
IV. The possession of the surface of the land by Lee Chancellor, all of the acts of which possession were had and done after the severance, could not operate to divest title from appellants to the severed mineral estate. Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Noble, et al. v. Kahn, et al., (Okla.), 240 P.2d 757.
V. By the deed from the Federal Land Bank to Lee Chancellor, there was accomplished a segregation or severance of the claims of the respective limitation claimants, namely, the Federal Land Bank and Lee Chancellor. The title which may be matured by limitation under adverse possession can in no event exceed the interest purported to be conveyed to the occupant by the deed under which he claims title. Dixon v. Cook, 47 Miss. 220; Davis v. Bowmar, 55 Miss. 671; Chatman v. Carter, 209 Miss. 16, 45 So.2d 841.
VI. Lee Chancellor had no color of title to the one-half interest in the oil, gas and other minerals which he claimed. Thrash v. Ferguson, (Miss.), 62 So.2d 364; Bohn v. Bohn, 193 Miss. 122, 5 So.2d 429; Evans v. Shows, 180 Miss. 518, 177 So. 786; Cook v. Farley, 195 Miss. 638, 15 So.2d 352.
Beverly C. Adams, O.M. Oates, Flowers, Brown Burns, Wells, Thomas Wells, Julian P. Alexander, Watkins, Edwards Ludlam, Jno. T. Armstrong and Avery Putnam, for appellees.
I. Introductory — appellants must recover on strength of their own title. Griffith's Mississippi Chancery Practice, 2d Ed., Sec. 211; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Secs. 709, 710, 711, 718, Code 1942.
II. Any right of appellants to attack title of appellees is barred by Secs. 709, 710, 711 and 718, Code 1942. Cook v. Farley, 195 Miss. 638, 15 So.2d 352.
A. Ouster and evidence of possession. 62 C.J. 430, Sec. 36; Ferguson v. Chancellor, 206 Miss. 519, 40 So.2d 275; Peeples v. Boykin, 132 Miss. 359, 96 So. 177; Jones v. Hoover, 204 Miss. 345, 37 So.2d 490; Boyd v. Entreken, 209 Miss. 51, 45 So.2d 848; Chatman v. Carter, 209 Miss. 16, 45 So.2d 841; Farnsworth v. O'Neal, 158 Miss. 218, 130 So. 101; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Douglas v. Skelly Oil Co., 201 Miss. 23, 28 So.2d 227; Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Barner v. Lehr, 190 Miss. 77, 199 So. 273; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Vaughn v. McCool, 186 Miss. 549, 191 So. 286; Wight v. Ingram Day Lbr. Co., 195 Miss. 823, 17 So.2d 196.
B. Possession by Federal Land Bank, Lee Chancellor and his heirs perfected title to both surface and minerals and barred any rights of appellants. Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Clements v. Texas Co., (Tex. Civ. App.), 273 S.W. 993; McLendon v. Comer, (Tex. Civ. App.), 200 S.W.2d 427; Laird v. Gulf Production Co., (Tex. Civ. App.), 64 S.W.2d 1080; McCombs v. Abrams, (Tex. Civ. App.), 28 S.W.2d 584; Leverett v. Leverett, (Tex. Civ. App.), 59 S.W.2d 252; Stern v. Great So. Land Co., 148 Miss. 649, 114 So. 739; Wight v. Ingram Day Lbr. Co., 195 Miss. 823, 17 So.2d 196; McNeese v. Renner, 197 Miss. 203, 21 So.2d 7; Douglas v. Skelly Oil Co., 201 Miss. 23, 28 So.2d 227.
C. Did the Federal Land Bank have color of title? Shepherd v. Cox, 191 Miss. 731, 4 So.2d 217, 136 A.L.R. 1346; Fatheree v. McCormick, 199 Miss. 248, 24 So.2d 724; Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729; 26 C.J.S., Deeds, Sec. 137.
D. Did Lee Chancellor have color of title? Thrash v. Ferguson, (Miss.), 62 So.2d 364; Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729; Bohn v. Bohn, 193 Miss. 122, 5 So.2d 429; Bouvier's Law Dictionary, Third Revision, p. 2558.
E. Appellants' cause of action is barred by the statutes of limitations, Secs. 709, 710, Code 1942, aside from adverse possession. 1 Am. Jur., Adverse Possession, Secs. 2, 3; Dingey v. Paxton, 60 Miss. 1038; Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; Newman v. J.J. White Lbr. Co., 162 Miss. 581, 139 So. 838; Hooper v. Walker, 201 Miss. 158, 29 So.2d 72; Walker v. Polk, 208 Miss. 389, 44 So.2d 477; 34 Am. Jur., Limitations of Action, Secs. 20, 301, and 280; 7 A.L.R. 2d 1366, Annotation; Woods v. Campbell, 87 Miss. 782, 40 So. 67; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Secs. 709, 710, Code 1942; Hunt v. Davis, 208 Miss. 710, 45 So.2d 350, 352.
III. There are many grounds on which affirmance could be based in addition to adverse possession. Livingston v. Bounds, 212 Miss. 184, 52 So.2d 660 (Sug. of error overruled, 54 So.2d 276); Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351, 152 A.L.R. 1428; Griffith's Mississippi Chancery Practice, 2d Ed., Sec. 342.
IV. The deed to J.W. Helms and deed of trust to the Federal Land Bank of New Orleans were valid. White v. Inman, 212 Miss. 237, 54 So.2d 375; Simmons v. Dantzler, 152 Miss. 428, 118 So. 829; Sec. 1836, Hemingway's 1917 Code, (Sec. 332, Code 1942).
V. The appellants are now judicially estopped to assert that George W. Carlisle did not desert his wife, Mrs. Anna Helms Carlisle, more than two years prior to March, 1924, the said Mrs. Anna Helms Carlisle having so alleged in her bill for divorce. Griffith's Mississippi Chancery Practice, Sec. 572, Note 73; Redus v. State, 54 Miss. 716; Bowman v. McLaughlin, 45 Miss. 461; Welch v. Smith, 65 Miss. 394, 4 So. 340.
VI. Under the doctrine of res judicata, cause No. 1355 is a complete bar to the present action. Griffith's Mississippi Chancery Practice, 2d Ed., Secs. 382, 609; Sec. 1280, Code 1942; Joiner v. LeFlore Grocer Co., 145 Miss. 31, 110 So. 857; 30 C.J.S., Equity, Sec. 487; Thomason v. Neeley, 50 Miss. 310; 50 C.J.S., Judgments, Sec. 633(c); Phillips v. Wormley, 58 Miss. 398; Mobile Ohio R.R. Co. v. Davis, 62 Miss. 271; Hume v. R. Inglis Co., 160 Miss. 251, 134 So. 137; Germain v. Harwell, 108 Miss. 396, 66 So. 396; Cedar Rapids National Bank v. Berry, 98 Miss. 123, 53 So. 393.
VII. Regardless of any other defenses laches is a complete and independent bar to appellants' suit. 19 Am. Jur., Equity, Sec. 498; Griffith's Mississippi Chancery Practice, 2d Ed., Sec. 33; Comans v. Tapley, 101 Miss. 205, 57 So. 507; Chase v. Chase, 20 R.I. 202, 37 A. 804; 19 Am. Jur., Equity, Sec. 498, Subsec. (2); Naddo v. Barden, 51 Fed. 493; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641; State v. Woodruff, 170 Miss. 744, 150 So. 760; Wilson v. Wilson, 41 Oregon 473, 69 P. 924; Arrington v. Masonite Corp., 213 Miss. 817, 58 So.2d 10; Archibald v. General Motors Acceptance Corp., 157 So. 709; Mobile O.R. Co. v. Swain, 164 Miss. 825, 145 So. 627; Hudson v. Belzoni Equipment Co., 203 Miss. 212, 33 So.2d 796; Gulf Ref. Co. v. Travis, 201 Miss. 336, 30 So.2d 398.
VIII. Long established rules of property in Mississippi should be recognized. Clements v. Texas Co., (Tex. Civ. App.), 273 S.W. 993; McLendon v. Comer, (Tex. Civ. App.), 200 S.W.2d 427; 21 C.J.S. 396; Boon v. Bowers, 30 Miss. 246; Cook v. Farley, 195 Miss. 638, 15 So.2d 352.
Appellants in reply.
I. Appellees failed to meet the burden of proof devolving upon them to show that the husband and wife were living separate and apart, in the contemplation of law, on the dates of the deed and deed of trust in question, through which appellees claim title. Griffith's Chancery Practice, Sec. 360; Hays v. Federal Land Bank, 163 Miss. 8, 140 So. 517; Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, sugg. of error overruled 93 Miss. 806, 47 So. 666; Scott v. Scott, 73 Miss. 575, 579, 19 So. 589; Daily v. City of Gulfport, (Miss.), 54 So.2d 485, 488; Gardner v. Cook, 173 Miss. 244, 158 So. 150; Philan v. Turner, 195 Miss. 172, 13 So.2d 819.
II. The court will not consider the argument of appellees set forth in their brief relative to their plea of res adjudicata. The trial court refused to sustain such plea, and appellees made no cross-appeal. Sec. 1390, Code 1942; Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, sugg. of error overruled 166 Miss. 53, 146 So. 134; Merchants Fertilizer Phosphate Co. v. Standard Cotton Gin, et al., 199 Miss. 201, 23 So.2d 906.
III. The court will not consider the argument of appellees in their brief relative to their plea of estoppel by judgment on the question of fact as to the alleged desertion of the wife by the husband. Appellees took no cross-appeal and filed no assignment of errors relative to the adverse ruling of the trial court on this question. Rickets v. Rickets, 152 Miss. 792, 119 So. 194, 197.
IV. The plea of laches is ineffective in this case in the absence of a showing of actual, open, notorious, hostile, exclusive, adverse possession of the severed mineral estate for the statutory ten-year period. Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Robbins, et al. v. Berry, (Miss.), 57 So.2d 576, 577.
V. Secs. 709 and 710 of the Code of 1942 cannot be used in bar of a suit to quiet title to a severed mineral estate in the absence of proof of adverse possession of the character required by Mississippi law of the severed mineral estate for the statutory period. Newman v. J.J. White Lbr. Co., 162 Miss. 581, 139 So. 838; Secs. 709, 710, Code 1942; Sec. 2286, Code 1930; Walker v. Polk, 208 Miss. 389, 44 So.2d 477, 484.
Appellants, five of the six children (or heirs of such children) of Mrs. Anna Helms Carlisle, brought this action in the Chancery Court of the Second Judicial District of Jasper County asserting title to a quarter section of land in that county. The defendants, appellees here, are the Federal Land Bank of New Orleans, heirs of Lee Chancellor, and their grantees. All claim under the Federal Land Bank and Lee Chancellor.
Appellants' suit attacked a warranty deed from their mother, Mrs. Carlisle, to J.W. Helms, executed in January, 1923, and a deed of trust executed by Mrs. Anna Helms Carlisle, J.W. Helms and wife to the Federal Land Bank as beneficiary, dated February 1, 1924. This deed of trust was foreclosed by the Federal Land Bank in July 1935, at which sale the lands were purchased by the Bank. On October 4, 1937, the Bank conveyed the lands in question to Lee Chancellor by warranty deed, excepting therefrom a half interest in the minerals. Appellants contend that the 1923 deed from their mother to J.W. Helms was void because she never signed it, and because it was homestead property and her husband did not join in it. Similar claims were made as to the deed of trust of February 1, 1924. The Bank claims under the 1935 foreclosure and also asserts title to the property by adverse possession since 1937 up to the time of the filing of this suit on July 7, 1951.
A lengthy record was made in the chancery court, and the final decree adjudicated that appellees, Federal Land Bank and its grantees, had obtained title to the property by more than ten years adverse possession, under Code 1942, Sec. 711. There is no substantial dispute in the record that the Bank went into possession of the property through its tenant on September 17, 1937, and that since that time the Bank and its grantee Lee Chancellor, and his heirs and tenants have been in the open and continuous adverse possession of the property, for a total period of about fourteen years. The Chancellor so found and the great weight of the evidence supports that decision.
The only point which appellants seriously urge with reference to the adverse possessory titles of appellees is based upon a contention that the adverse possession of the lands by Lee Chancellor did not inure to the benefit of his grantor, the Federal Land Bank. On September 17, 1937, the Bank entered into possession of the property through its tenant, Anderson. The Bank then conveyed to Chancellor, on October 4, 1937, the surface and one-half of the minerals, excepting therefrom and reserving in the Bank a one-half mineral interest. Chancellor then went into possession, and his heirs have remained in possession up to the time this suit was filed. Most of the adverse possessory period ran after this deed to Chancellor.
(Hn 1) The general rule is that, where there has been a severance of minerals by an adverse possessor, the continued adverse possession of the surface by the severor or severee inures to the benefit of the severed mineral estate as against the true owner. This is true whether the adverse possessor conveys the surface and reserves the minerals, or keeps the surface and conveys the minerals. A case substantially similar to the present one and holding to this effect is McLendon v. Comer, 200 S.W.2d 427 (Tex. Civ. App. 1947). To the same effect are Clements v. Texas Co., 273 S.W. 993, 1005 (Tex. Civ. App. 1925); Alabama Fuel Iron Co. v. Broadhead, 210 Ala. 545, 98 So. 789 (1924); Black Warrior Coal Co. v. West, 170 Ala. 346, 54 So. 200 (1911); Laird v. Gulf Production Co., 64 S.W.2d 1080 (Tex. Civil App. 1933); McComb v. Abrams, 28 S.W.2d 584, 602 (Tex. Civ. App. 1930); Leverett v. Leverett, 59 S.W.2d 252 (Tex. Civ. App. 1933); Broughton v. Humble Oil Refining Co., 105 S.W.2d 480 (Tex. Civ. App. 1937); Thomas v. Southwestern Settlement Development Co., 131 S.W.2d 31 (Tex. Civ. App. 1939); Kilpatrick v. Gulf Production Co., 139 S.W.2d 653 (Tex. Civ. App. 1940). See also Masterson, Adverse Possession and the Severed Mineral Estate, 25 Tex. L. Rev. 139 (1946); 25 Tex. L. Rev. 108 (1947, Comment on McLendon v. Comer, supra). Cook v. Farley, 195 Miss. 638, 654-655, 15 So.2d 352 (1943), is not applicable to the present facts. The rule there stated is that in controversies between the severing grantor and severing grantee, or those claiming under the severing title, possession of the surface is not possession of the minerals. The rationale of the McLendon v. Comer rule is that, while a severance binding upon the parties to it was effected, no actual severance as to third parties was accomplished, since the severor did not have title, and continued possession by either the trespassing grantor or grantee continues to give notice to the true owner of the hostile claim being asserted by the adverse possessors against his title to the combined surface and mineral estate.
(Hn 2) 25 Texas Law Review 108, 110, states the following as additional reasons for this rule: "As against a third party, possession by either the grantor or grantee where severance is attempted by a trespasser should be regarded as possession of the entire premises for the benefit of both, since collectively they are asserting a common title against the third party of which he has adequate notice by the possession of either. The result in this case is also desirable for policy reasons in that it will protect property owners, since in most cases it is the rightful owner who must rely upon the statute of limitations to protect his title against the assertion of old claims."
We do not consider the questions argued on this appeal of the validity of the deed of trust, of res judicata and of estoppel by judgment, because the above holding based upon adverse possession settles this controversy.
Affirmed.
Roberds, P.J., and Lee, Kyle and Arrington, JJ., concur.