Summary
In Cook v. Mason, 160 Miss. 811, 134 So. 139, this Court said: "The pasture portion does not aid appellants, for there is no proof that the said portion was inclosed, and the great weight of authority is to the effect that pasturing, without inclosure, does not constitute adverse possession."
Summary of this case from Geoghegan v. KraussOpinion
No. 29383.
May 12, 1931. Suggestion of Error Overruled June 8, 1931.
1. ADVERSE POSSESSION.
Occupancy by one of part of land to which he has valid title will not extend by constructive possession to other parts not actually occupied and to which title is invalid.
2. ADVERSE POSSESSION.
Pasturing without inclosure does not constitute "adverse occupancy."
3. ADVERSE POSSESSION.
Complainants in suit to confirm tax titles admitting tax deeds were void had burden of proving adverse occupancy.
4. TAXATION.
Bill to confirm tax title held properly dismissed even as to defendants who had suffered decrees pro confesso, where answers and proof of some defendants showed complainants were not entitled to relief.
APPEAL from chancery court of Hinds county, First district; HON. V.J. STRICKER, Chancellor.
Powell, Harper Jiggitts, of Jackson, for appellants.
Actual occupation for three years after two years from the day of sale is an absolute bar to the original owner to set up any defense, or to test the right of the occupant claiming under the tax conveyance.
Section 2288, Code of 1930; Hamner v. Lumber Co., 100 Miss. 349, 56 So. 466.
When a party and his grantor have been in possession of land for three years under a tax deed, he obtains good title, even though the tax deed was void.
Smith v. Leavenworth, 101 Miss. 238, 57 So. 803; Dimitry v. Lewis, 150 Miss. 818 at 823.
Where defendant's interests are separable, if, however, the bill makes distinct charges against and seeks a distinct relief from, each defendant, the success of one who answers and resists the claim will not inure to the benefit of a defendant who defaults.
5 Ency. Pl. Prac., pages 994 and 995; 21 C.J., page 801, section 950; 16 Cyc., page 497; Shipman's Equity Pleading, page 83.
J.M. Stevens, Jr., and R.T. Mobley, both of Jackson, for appellees.
The complainant in a suit to confirm a tax title has the burden of proving his case, and is not aided by a decree pro confesso.
Griffith's Chancery Practice, pars. 590, and 219; Robert v. Lewis, 81 So. 481; Goff v. Avent, 122 Miss. 86, 84 So. 134; Gilchrist-Fordney Co. v. Thigpen, 114 Miss. 182, 74 So. 823; Gregory v. Brogan, 74 Miss. 694, 21 So. 521.
A tax deed containing a void description conveys nothing, and is not color of title.
Wayne v. Minor, 7 So. 347; Richter v. Beaumont, 67 Miss. 285, 7 So. 357; Cassidy v. Hartman, 93 Miss. 94, 46 So. 536; Smith v. Brothers, 86 Miss. 241; Boone v. Wells, 91 Miss. 799, 45 So. 571; Locke v. Rouse, 147 Miss. 802, 111 So. 838.
Possession under a tax deed which provides no color of title does not give good title, under the three year statute.
Byrd v. Dickson, 152 Miss. 605, 120 So. 562; Penick v. Floyd Willis Cotton Co., 119 Miss. 828, 81 So. 540; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Hoskins v. R.R., 78 Miss. 768.
A writing is essential to color of title.
Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147, 2 A.L.R. 1453.
A purported deed containing an insufficient description does not constitute color of title.
Delk v. Hubbard, 153 Miss. 869, 121 So. 845.
Argued orally by A.Y. Harper, for appellant, and John Morgan Stevens, Jr., for appellee.
Manhattan subdivision in the First district of Hinds county consists of about one hundred forty-seven acres, subdivided into many small lots. Appellants had sold to the defendants herein a number of these lots, and later, when some of these same lots were attempted to be sold for taxes, appellants became the purchasers at the tax sales. After several years, appellants filed their bill to confirm their tax titles, and decrees pro confesso were taken against all the defendants, except five, who answered and contested the bill.
Appellants admit that their tax deeds are void, but seek to prevail upon adverse occupancy, the proof being that, continuously for more than the statutory period of three years, appellants through their tenants have cultivated about seventy-five acres of said subdivision and have had the remainder in pasture. It is not shown however that any part of the lots here in question were within the cultivated portion; and the rule is well settled that, when the title of a claimant to a part of the land is void, the occupancy by him of that part to which he had valid title will not extend by constructive possession to the other part or parts not actually occupied and to which his title was invalid. Leavenworth v. Reeves, 106 Miss. 722, 729, 64 So. 660. The pasture portion does not aid appellants, for there is no proof that the said portion was inclosed, and the great weight of authority is to the effect that pasturing, without inclosure, does not constitute adverse occupancy. 2 C.J. 67.
The appellants have failed, therefore, to carry the burden of proof in the matter of adverse occupancy; and, since the answers and proof of some of the defendants show that the complainants are not entitled to relief, the bill was properly dismissed, even as to those of the defendants who had suffered decrees pro confesso. See Griffith Chancery Practice, sections 263 and 624.
Affirmed.