Opinion
No. 41596.
November 21, 1960.
1. Unlawful entry and detainer — action must be brought when.
An action of unlawful entry and detainer must be brought within one year after wrongful deprivation or withholding of possession. Sec. 1049, Code 1942.
2. Unlawful entry and detainer — limitation of actions — burden of proof.
A defendant in unlawful entry and detainer action, who claims the action is barred because not brought within one year after wrongful deprivation or withholding of possession, has the burden of proving when his possession became adverse. Sec. 1049, Code 1942.
3. Unlawful entry and detainer — permissive user — action not barred by limitations.
Where record, in unlawful entry and detainer action, justified a finding that possession by defendant was permissive until one month before the action was commenced, action could not be considered barred on theory it was not brought within one year after defendant's possession of the land became adverse. Sec. 1049, Code 1942.
4. Unlawful entry and detainer — damages — rental value — loss of profits — both not recoverable.
A successful plaintiff in an unlawful entry and detainer action was not entitled to recover both the rental value of the property and loss of anticipated farming profits but was entitled to an award only for the amount of the rental value.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Forrest County; WILLIAM HARALSON, Judge.
Wm. V. Murry, Hattiesburg, for appellants.
I. Cited and discussed the following authorities: National Casualty Co. v. Calhoun, 219 Miss. 9, 67 So.2d 908; Producers Gin Assn. v. Beck, 215 Miss. 263, 60 So.2d 642; Secs. 1033, 1197, 1523, Code 1942.
C.M. Morgan, Jr., Cephus Anderson, Hattiesburg, for appellee.
I. Cited and discussed the following authorities: Board of Suprs. of Hancock County v. Imperial Naval Stores, 93 Miss. 822, 47 So. 177; Huff v. Murray, 171 Miss. 656, 158 So. 475; Murf v. Maupin, 113 Miss. 670, 74 So. 614; Producers Gin Assn. v. Beck, 215 Miss. 263, 60 So.2d 642; Tate v. Tate, 217 Miss. 734, 64 So.2d 908; Town of Union v. Buckwalter Lumber Co., 136 Miss. 409, 101 So. 561; Griffith's Outlines of Law p. 147.
Appellee filed an unlawful entry and detainer complaint in county court under Section 1049, Mississippi Code of 1942. Upon trial of the issue judgment was entered for plaintiff for possession of the lands. Defendants appealed to circuit court with supersedeas where the judgment of the county court was affirmed and a judgment entered against defendant and the sureties on their supersedeas bond for $150.00 "rent on said land" at the rate of $40.00 per month, and $180.00 damages "not embraced in the use and occupation of the said land" pending appeal from county court. The defendant appeals to this Court.
Appellant assigns several errors, but only two deserve comment.
It is contended by appellant that appellee did not bring his action within one year from the date the cause of action accrued and that the action was barred by the terms of the statute, Code Section 1049. Appellants deeded the land to appellee on February 21, 1956, but appellee never took possession. The record contains no oral proof of the existence or non-existence of any arrangements or agreements with reference to possession. Appellee introduced a court file showing appellants filed suit against appellee in chancery court on November 23, 1957, seeking a decree declaring the aforesaid deed to be a mortgage. After several amendments, a demurrer was sustained and that suit was dismissed with prejudice. It appears from the pleadings in the chancery court suit that both parties took the position that appellants retained possession of the property by permission of appellee. After the chancery suit was concluded as above stated, appellee, on March 27, 1959, gave appellants written notice to surrender possession within 10 days. Possession was not surrendered to appellee and he brought this unlawful entry and detainer suit on April 23, 1959.
(Hn 1) If the record showed that appellants were in possession of the property from the date of the deed, February 21, 1956, adversely to appellee, then appellee would not be entitled to maintain the action of unlawful entry and detainer. Such action must be brought within one year after wrongful deprivation or withholding of possession. Section 1049, Mississippi Code of 1942; Anthony v. Bank of Wiggins, 178 Miss. 361, 173 So. 454. (Hn 2) But the defendant in such action who claims the action was barred because not brought within one year after wrongful deprivation or withholding possession has the burden to prove when his possession became adverse. Holmes v. Elmer, 182 Miss. 171, 181 So. 325. (Hn 3) Not only did appellants fail in this regard but the record justified a finding that possession by appellants was permissive until March 27, 1959, one month before the action was commenced.
Appellants also assign as error the action of the circuit court in awarding appellee $330.00 damages and rent pending appeal to that court from the county court.
(Hn 4) The tract of land involved contains 38 acres on which is a house in bad repair. After the circuit court affirmed the judgment of the county court, it heard evidence on the damages appellee sustained pending the appeal, a period of less than four months, the length of the period being stipulated. Appellee testified appellants cut a shade tree but it was not shown this was done within the stipulated period. Appellee then attempted to show both the rental value and loss of profits from the cotton acreage allotment. Appellee may not recover both the rental value of the property and loss of anticipated farming profits. The judgment on the supersedeas bond should have been $150.00, the amount of the rent, and judgment is modified here reducing the said amount from $330.00 to $150.00.
Therefore, the judgment is affirmed for possession of the property and modified as to the damages awarded appellee by the circuit court.
Affirmed as modified.
McGehee, C.J., and Kyle, Holmes and Ethridge, JJ., concur.