Opinion
May 9, 1949.
1. Tenants in common — purchase of outstanding title by one tenant — when not for common benefit.
The rule which prevents one tenant in common from purchasing an outstanding title to the common property and setting it up against his cotenants is founded upon the confidential relation which is presumed to exist between them and has no application when the circumstances surrounding them negative any such relation and show that they are asserting hostile claims against each other as to the common property.
2. Tenants in common — heirs of common ancestor — disseisin by one of them.
The heir of a common ancestor may disseise his co-heirs and hold an adverse possession against them; and notwithstanding an entry as heir, the party may afterwards, by disseisin of his co-heirs, acquire exclusive possession on which the statute will run; and any act of one joint tenant which is evidence of a claim of exclusive ownership, such, for instance, as taking all the rents and profits to himself will constitute a disseisin.
3. Tenants in common — disseisin by one tenant not affected by mere verbal protest of other tenants.
When one tenant in common has disseised his cotenants and is occupying the property exclusively as his own, mere protests or verbal statements by his cotenants are insufficient to stop the running of the statute of limitations in his favor.
4. Tenants in common — exclusive and hostile possession by one tenant under a tax sale of the common property.
Where only one tenant in common has purchased the common property at a tax sale, and beginning with his tax purchase he has thereunder claimed and occupied the land continuously, exclusively, peaceably, adversely and notoriously for a period of ten years, he thereby becomes the absolute owner thereof as against any of his former cotenants.
Headnotes as approved by Smith, J.
Appeal from the chancery court of Jones County, Roy P. Noble, Chancellor.
Buchanan Montgomery, for appellant.
None of the sisters or brothers of A.G. Ferguson, who left lineal descendants, died prior to the year 1933, and even if the ten year statute of limitations was not put in motion until 1924, once put in motion, the statute of limitations continued to run against the children of the deceased cotenants of A.G. Ferguson. See Leggett v. Norman, 192 Miss. 494, 6 So.2d 578.
The right of a cotenant to invoke the ten year statute of limitations of exclusive adverse possession against his co-heirs after ouster of such co-heirs from the possession of the common property inherited from a common ancester was recognized by this court as early as 1839 in the case of Iler v. Routh's Heirs, 3 How. (4 Miss.) 276.
In the case at bar, A.G. Ferguson took possession of the land involved in this suit after the maturity of the tax sale of 1889, and continued in possession as sole owner, and claiming the whole, until he conveyed the land to the appellant herein, reserving unto himself the right to control and use this property as his home until his death. That conveyance which conveyed the land to appellant "to hold against the claims of all persons" was most clearly the exertion of an act of ownership inconsistent with the rights of others, and was virtually an ouster. That conveyance was perfectly decisive of the character of the entry of A.G. Ferguson at the maturity of the tax sale of 1889, and was perfectly decisive of the exclusive nature of his possession.
In the recent case of Mrs. Nannie Meeks Jones et al. v. W.H. Hoover, et al., 37 So.2d 490, this court had before it the question of what constituted ouster between cotenants. While in the Jones v. Hoover case, supra, the court did not cite the case of Iler v. Routh's Heirs, supra, it followed the general rule laid down in the Iler case as to what constituted an ouster between cotenants, that is, that "any act of one joint tenant which is evidence of a claim of exclusive ownership, such as taking all the rents and profits to himself, will constitute a disseisin."
The fact that A.G. Ferguson reserved the right to control and use the land as his home until his death did not prevent the action of A.G. Ferguson by which he asserted exclusive title in himself and his daughter, Laura Lee Ferguson, from constituting an ouster and disseisin of the cotenants of A.G. Ferguson, regardless of the relation which A.G. Ferguson may have occupied prior to this transfer as towards his brothers and sisters, and it is respectfully submitted that from and after August 4, 1934, that relation ceased to exist as a cotenancy, even if cotenancy was existing on August 4, 1934, and the bar of the ten year adverse possession statute became complete prior to the filing of this suit.
The fact that A.G. Ferguson took possession of the land upon the maturity of the tax sale of 1889 and continued in possession claiming to be the sole owner thereof was well known to his sisters and brothers, and this fact is unquestionably borne out by the preponderance of the evidence, and is uncontradicted. This is a case where a person in honest belief that he had acquired a perfect title to land by a tax sale entered into actual possession thereof, openly claiming the whole title, which exclusive claim of title was well known to his co-heirs and whose exclusive possession of such land was well known to his co-heirs, and where this person has through a period of more than 50 year husbanded the property, used it as his home exclusively, repaired and rebuilt the fences, improved the house on the South forty, built his home on the North forty, rented the land to his tenants, collected and kept for himself all of the rents from the property, sold timber therefrom, and kept for himself all of the proceeds of such sale, and has otherwise used the premises for more than 45 years before he conveyed the land to his daughter, which conveyance was made more than ten years prior to the filing for this suit, during which ten years he and appellant together held the land in open, notorious, continuous, hostile, exclusive, adverse possession, claiming the full title thereto in themselves exclusively, and the co-heirs of this person's ancestor have waited for more than 55 years to attempt to show any title in themselves, and have waited until the land has become of much greater value by reason of the husbandry of the timber by A.G. Ferguson, and by reason of the improvements which he placed thereon.
If the ten year adverse possession statute of limitations was not put in motion prior thereto, it was put in motion by the conveyance from A.G. Ferguson to his daughter, Laura Lee Ferguson, appellant here, which conveyance was executed and recorded on August 4, 1934. The execution of this deed to a stranger to the title was an assertion of title and an assumption of dominion and exclusive control over the land, which was at the time of the execution and recording of the deed a repudiation of the alleged tenancy in common if the same had not theretofore been repudiated by prior acts of exclusive possession on the part of A.G. Ferguson. This conveyance to appellant by A.G. Ferguson conveying the land to her "to hold against the claims of all persons" was a challenge to these alleged co-tenants, and its execution and recordation had the legal effect of disseisin, and operated as an ouster. The appellees were thereby put upon notice of the asserted claims, both of A.G. Ferguson and Laura Lee Ferguson under the deed, and the appellees were put under a duty to challenge these claims within the period provided for in the ten year adverse possession statute. The appellant, Laura Lee Ferguson, having implemented her claim of title by actual, open, notorious, continuous, hostile, exclusive, adverse possession through herself and her grantor, A.G. Ferguson, for a period beyond statutory limitation matured the disseisin into complete ownership prior to the date this suit was filed. Peeples v. Boykin, 132 Miss. 359, 96 So. 177. See also Davis v. Gulf Refining Company, 32 So.2d 133, 135.
The rule "that any act of one joint tenant, which is evidence of a claim of exclusive ownership, will constitute a disseisin", as set forth in Iler v. Routh's Heirs, supra, is controlling in this case. When A.G. Ferguson made the conveyance to his daughter on August 4th, 1934, his act of conveyance was decisive of the character of his entry, and was an open declaration of his ownership, inconsistent with any rights any others may have had or claimed in the property, and, if his anterior acts asserting title exclusively in himself and building a home for himself on the property were insufficient to constitute ouster, (and we say that such anterior acts were sufficient to constitute ouster, and the bar of the ten year adverse possession statute had already become complete prior to August 4, 1934) the execution and recording of this deed gave notice to the world of the contents of the deed, and such notice in this case was ample to warrant the institution of an ejectment suit by the co-heirs against A.G. Ferguson and his daughter, appellant here, who were then in occupancy of the property; said ejectment suit would have been warranted under the doctrine of wrongful ouster if the co-heirs had not already been barred from bringing such action. Under the decisions of this court in the cases Peeples v. Boykin, supra, and Davis v. Gulf Refining Company, supra, the execution and recording of this deed was effectual to set in motion the ten year adverse possession statute fully as actual notice would have been. See Farnsworth v. O'Neal, 158 Miss. 218, 130 So. 101; Crowder v. Neal, 100 Miss. 730, 57 So. 1, and Shelby v. Rhoades, 105 Miss. 855, 62 So. 232.
H.E. Koch and Welch, Cooper Welch, for appellees.
As to the legal status of a purchaser of an outstanding title who is a cotenant with another or anothers, this court has had frequent occasion to speak. That a cotenant who purchases an outstanding title does so for the benefit of his fellow cotenants is well established. Gilchrist-Fordney Company v. Ezelle, 141 Miss. 124, 106 So. 269; Clausell v. Riley, 188 Miss. 647, 196 So. 245; and many other cases.
And this court has further said that in the case of relatives the proof must be very strong and must show by clear and convincing testimony the acquisition of lands or any part thereof by adverse possession. We refer to the case of Fox v. Wilkins, 28 So.2d 577.
We think the above case is particularly apposite here. In the first place, we have family ties and we have Angus Ferguson in charge of the property and managing it for their mutual benefit. True it is, that the heirs received nothing from the place but the taxes were paid and the ownership maintained for the benefit not only of himself but of his brothers and sisters. The record is replete with statements made by Angus Ferguson throughout his entire occupancy that this land was "our estate". And these statements were made to his sisters and their descendants in rather recent years.
It is true that he built a home on it but he used the timber from the very place itself in the construction of this home. And the house was at all times open to the sisters and other members of the family and actually occupied by some of them. There was nothing done in this case by Angus Ferguson or his grantees who were his children to indicate that they were claiming this land exclusively. And the appellant has cited only one fact as indicating the adverseness of the possession and that was taking the rent and profits for his own use.
The record shows that a small portion of the land was cultivatable. On the other hand the major portion of it was woodland. The appellees, as no doubt was Angus Ferguson, were glad to have the taxes paid and the estate conserved.
The record does not disclose even that Angus Ferguson did appropriate unto himself all of the rents and profits and, in fact, it does not disclose that there were any rents and profits.
Appellant cites the case of Iler v. Routh's Heirs, 3 Howard 276, at great length. But the facts in that case are in no sense similar to the facts in the case at bar.
The case of Jones v. Hoover, 37 So.2d 490, is not in point with the case at bar. There Hoover took possession of the land after a foreclosure of a deed of trust and the father of complainants moved off of the premises shortly before the foreclosure. In fact, it was alleged in the bill of complaint that the father of the complainants was forced to leave the land because the mortgage had been foreclosed.
There is nothing in the record to show that any of the brothers and sisters had any actual knowledge of the purchase by Angus Ferguson at the tax sale or that he was claiming this land exclusively. There is not a word or a syllable in the record to bring home any knowledge that Angus Ferguson was claiming it as against his brothers and sisters. On the other hand it is perfectly apparent from the record that Angus Ferguson had always referred to the lands as "our estate" and "our father's estate". In fact, he stated that the appellees would be treated right.
The appellant in her argument says that there was an ouster as a result of the execution by Agnes Ferguson of the deed to her in August, 1934. And since she has been in adverse possession since 1934 and for a period of more than 10 years, she is the owner in her own right by adverse possession of the land in question.
This argument is based upon the holding of this court in Peeples v. Boykin, 132 Miss. 359, 96 So. 177. Other cases are cited but we do not find that the court has ever gone as far in any case as it has gone in the cited case.
We have always felt that the application of the principle of the Peeples case in unsound and in a great many instances, or we will say a large majority of instances, is the instrument of injustice rather than of justice. Take its application here and observe to what unholy ends its application will lead us.
It is not disputed that the father died leaving this family as a social unit with its living to make and its taxes to pay. The oldest child, a man, takes over the management of the estate as is normal and natural. The children trust him and work with him and do their best in the matter of effort to survive and save the estate. The daughters marry off and knowing that as a matter of profit from the estate little could be expected except to pay the taxes and maintain the brother.
In 1908 and in 1927 he shows his recognition of the interest of his brothers and sisters by asking them to give him a power of attorney to convey and this they do. Things continue and seven years thereafter, without any actual knowledge on the part of the appellees, he slips deeds to the entire holding or estate on record and includes therein a stipulation that it is against the claims of all persons. The deeds are filed for record. There is no change of possession or change of use or change of management in any way. There is nothing, to use the language of this court, to fly any flag in the face of these appellees which would indicate or cause them to suspect that there had been any attempt by their trusted brother to deed the place away to his children.
The appellant here did not know of its execution and she was at home when her father brought the deed in to her. So by a secret maneuver these appellees were ousted, so appellant says, by reason of the fact that this deed was filed of record. No stranger to the title went into possession and there was no act of any nature that was visible to one familiar with the lands which would indicate in any way that any such deed or deeds had been recorded. Yet, only seven years prior to that time he had obtained from his sisters and brothers a power of attorney to sell these lands. Yet, under the holding in the Peeples case it is argued that the filing and recordation of these deeds constructively notified these appellees of their existence and of the fact that A.G. Ferguson, the brother and uncle of these appellees, had ousted them, these appellees, and that they were going to lose their title by adverse possession.
We have no fault to find with cases like Eastman, Gardiner Co. v. Hinton, 86 Miss. 604, 38 So. 779, or the case of Davis v. Gulf Refining Co., 32 So.2d 133. In each of those cases the conveyance was to a stranger to the title. In the Davis case there a conveyance in 1931 to W.W. Dearman.
In the case of Eastman, Gardiner Co. v. Hinton, supra, there was a conveyance in fee to a stranger to the title with a change in possession.
In the case of Harvey v. Briggs, 68 Miss. 60, 8 So. 274, Briggs, a stranger to the title, entered into possession under a deed from one cotenant purporting to convey the whole title in fee and during his lifetime he retained the possession and openly and notoriously asserted title to the whole land.
In the case of Farnsworth v. O'Neal, 158 Miss. 218, 130 So. 101, we have no such situation as we have here for in that case O'Neal was shown to have actual knowledge that Farnsworth was in possession of the land and claiming to be the sole owner therof.
In the case of Shelby v Rhodes, 105 Miss. 855, 62 So. 232, there was a deed by one tenant in common to a stranger to the title who entered into the exclusive possession and remained therein, the grantee thinking that his grantor who gave him a warranty deed was the sole owner thereof.
If the unknown or secret recording of a deed accompanied by no change in possession is sufficient to constitute an ouster, tenants in common, especially members of the same family, should institute seasonal checks of the deed records to determine the status of the title.
We are well aware that the statute on recording imparts notice but it is notice to subsequent purchasers of the title. To hold that one in whom a good and valid title is already vested is affected by notice of the contents of the deed records is to place a construction on the statute far beyond, we submit, the purpose of its authors.
If, however, there has been a change in possession, we grant that common prudence may dictate that the cotenant go to the records.
In the case of Brasher v. Taylor, 109 Ark. 281, 159 S.W. 1120, the recording of the deed was held not to be constructive notice where the title had already vested. To the same effect is Pickens v. Stout, 67 W. Va. 422, 68 S.E. 354; and Twitchell v. Rosiclaire Co., 302 Ill. 365, 134 N.E. 714. In the case of Arrington v. McDaniel, 14 S.W.2d 1009, it was expressly held that "registration of a deed from one cotenant will not operate as constructive notice of the adverse claim of the grantee."
There are a large number of cases giving effect to the record of a deed but in all cases this effect was given only where there was a change of possession such as would put a prudent peron on inquiry. And in all cases it was a stranger to the title. Take for example the cases of Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81; Dew v. Garner, 207 Ala. 353, 92 So. 647; and Weaver v. Blackmon, 212 Ala. 681, 103 So. 889. The court is respectfully referred to the annotations in 27 A.L.R. 5; 71 A.L.R. 436; and Am.Jur., Vol. 1, pages 828 to 835.
We submit, therefore, that if the Peeples case is to be construed to hold that there is an ouster simply because of the notice conferred by the recording of a deed purporting to convey the entire estate and unaccompanied by possession and other acts indicating the exclusive dominion by the grantee, the Peeples case is not sound. It is making cotenants keepers of the records and certainly readers of the records for each period of time.
On October 19, 1946, in the Chancery Court of the Second Judicial District of Jones County, appellant filed her original bill praying the court to quiet and confirm her title to the west half of southeast quarter of Section 4, Township 9 North of Range 10 West, situated in said Judicial District and County, and for cancellation of all adverse claims of the defendants to above described lands. The trial court dismissed her bill with prejudice as to an undivided 5/8ths interest therein, and confirmed her title to an undivided 3/8ths interest in the land, subject to an existing oil, gas and mineral lease thereon. Appellant seeks from this Court a reversal of this decree in so far as it dismissed her bill with prejudice as to the undivided 5/8ths interest.
The lands involved originally belonged to the common ancestor of complainant and all of the named defendants and of two of his children not made defendants because they disclaimed, by quitclaim deed, any interest in the lands about which the controversy waged. This common ancestor was John Ferguson, the grandfather of complainant, who died intestate on May 3, 1884, was survived by his widow and ten children, the latter being Angus G. Ferguson, Flora Ferguson Trest, Maggie E. Ferguson, Mary Ferguson Chancellor, Sarah Ferguson McRae, Laura Ferguson McRae, Malcolm H. Ferguson, Carrie Ferguson McRae, Lou Ella Ferguson, and Lamar Ferguson. The two last named were the ones of whom it is stated, supra, they disclaimed any interest and were not parties defendant. They also testified in support of the claim of appellant, their niece, the daughter of Angus G. Ferguson.
The widow, Catherine Ferguson, did not remarry and departed this life intestate on March 23, 1899. Flora Ferguson Trest died without a will on August 14, 1933. Maggie E. Ferguson never married and died intestate on October 20, 1927. Also intestate, Mary Ferguson Chancellor departed this life March 10, 1940. Malcolm Hector Ferguson died January 19, 1891, without having made a will. Angus G. Ferguson, the father of appellant, died January 14, 1941. Therefore, at the time suit was filed five of the children were living, of whom three, as pointed out, ante, were defendants, and the other defendants were the heirs of the other children of John Ferguson, who married and left heirs, making eight shares as to John Ferguson's estate. He was a large landowner, owning between 900 and 1,000 acres in Sections 3, 4, 5, 32 and 33. But that part thereof which is at issue in the case at bar is only the W 1/2 of SE 1/4 of Section 4, Township 9 North, of Range 10 West, and this must be steadfastly borne in mind.
At the date of the death of John Ferguson in 1884, his widow and children were living in the old Ferguson homestead, which, was not on any part of the land in this suit. There, they continued to live until the widow died, some of the children died, and others married and moved away, establishing homes of their own elsewhere. Angus G. Ferguson, as the eldest son, was apparently heading the family grouped in this establishment.
On March 4, 1889, Angus G. Ferguson became the purchaser of the lands in suit at a tax sale, and immediately began claiming it adversely to the other heirs, tantamount to denying that they were tenants in common thereafter as to said lands. This continued until his death in 1941, a period of 52 years approximately, during which no challenge of his claim of exclusive ownership was made by anyone in any manner recognized as sufficient at law. Among other acts of adverse possession and notorious exclusive ownership Angus G. Ferguson built his home thereon in 1924, which he and his wife occupied until her death, and he thereafter reserved a furnished room therein continuously at all times for his individual and sole use, which he kept locked at all times. He permitted others to live there at some times, and also rented it out. In 1940 this house burned and he immediately rebuilt it on the same spot. During this period of open claim of exclusive ownership he continuously acted with reference to this property as any owner would act, as to cultivation of part thereof, fences, sales of timber, leasing it, and so on.
In 1934 Angus G. Ferguson conveyed to appellant, his daughter, the W 1/2 of SE 1/4 of Section 4 aforesaid. This warranty deed contained this clause: "To hold against the claims of all persons. I reserve the right to control and use this property as my home till my death, at which time this reservation ceases." Upon his death complainant took over without challenge or dispute from anyone, until, upon activities in oil developments, and a sudden assertion of right as to cutting timber by a party in interest, she decided to file this suit, which she did in 1946.
In their answer appellees categorically denied the unfavorable allegations of fact in the original bill, and set up the defense that the purchase by Angus G. Ferguson at the tax sale was as a cotenant and for the benefit of all, and that no ouster of his tenants in common had been achieved. Furthermore, that they were not aware of the sale by Angus G. Ferguson to his daughter, Laura Lee Ferguson, appellant, until just before her suit was filed, and her tenure, being less than ten years prior thereto, she had no title by adverse possession. The testimony offered on behalf of appellees was generally negative, and also consisted largely of assertions that the other heirs always claimed an interest in the lands as heirs of John Ferguon, and occasional statements in conversations allegedly had with Angus G. Ferguson, made to and by him, and that he did not always live on the land; and lack of knowledge of his sale of the land to appellant ten years before suit was filed.
It is to be further remembered, however, that he was a preacher and teacher, and always had his home occupied by tenants or guests, and continuously reserved his locked furnished room for use at any and all times for himself solely. He alone paid the taxes, from and after his purchase in 1889, until his daughter commenced to pay them, on this particular piece of land. He never accounted to any of the other heirs of his father for any rents, issues or profits from it, and was never called to account for same. No one in that long period of time ever sought partition or to eject him. It is true that he signed with his co-heirs certain deeds to other portions of his father's estate, and acquired powers of attorney from them to enable him to sell timber on other lands left by his father, but not as to the W 1/2 of SE 1/4 of Section 4, in either event. This, of itself, seems to us a cogent circumstance in support of his adverse claim to notorious exclusive ownership. Proof was made by disinterested persons, and the brother and sister of Angus G. Ferguson, who were not defendants, that his claim was recognized by general reputation in the neighborhood, and acknowledged among all of the members of the family.
On the other hand, defendants offered evidence as stated, supra, and as to acts claimed to be inconsistent with exclusive ownership and consistent with cotenancy. But this testimony was weak in comparison with that of complainant and her witnesses, who testified positively to the facts set out above, while appellees in the main dealt in negatives. Furthermore, appellees trained their guns for the most part upon the deed from Angus G. Ferguson to appellant in 1934, and a great deal of the evidence was addressed to the claim that they knew nothing of that conveyance until just before or after appellant filed her original bill, and that no change in the possession of Angus G. Ferguson occurred thereafter to alert them to the fact of the conveyance to his daughter.
This line of evidence, and appellees' argument dealing therewith was fundamentally the basis of the decree unfavorable to appellant in the trial court. The Chancellor said in his opinion dictated into the record: "The question arises as to whether the deed from A.G. Ferguson to Laura Lee Ferguson, reserving a life estate in A.G. Ferguson, who did not die until January 14, 1941, was an ouster or disseisin of all of the other heirs of John Ferguson. If A.G. Ferguson had not retained a life estate, the law in this State is clear that the execution and recordation of such a deed followed by ten years adverse posession would be a ouster and disseisin of the other heirs and the grantee in such a deed would have title in fee simple to the lands, but in this deed there was a reservation of a life estate to the grantor, A.G. Ferguson, and A.G. Ferguson died in January 14, 1941. None of the defendants in this case had actual knowledge of the execution of the deed and the character of the possession of A.G. Ferguson was the same before the execution of the deed and after the execution of the deed. I am, therefore, of the opinion that there was not an ouster or disseisin of the other heirs of John Ferguson until the death of A.G. Ferguson, which was less than ten years ago."
The Chancellor was, of course, right in his statement that "the character of the possession of A.G. Ferguson was the same before the execution of the deed and after the execution of the deed." The difference was, he alienated the fee and his own interest was to end with his death. His use and control was a continuation of his exclusive claim, use, control, and as a matter of right, which began in 1889, several times more than ten years before an appellant filed her suit in 1946. As we view it, the title had long since matured in Angus Ferguson before the deed to his daughter, and it was, therefore, of no consequence whether defendants knew of that deed or not.
Appellees rely upon such cases as Gilchrist Fordney Co. v. Ezelle, 141 Miss. 124, 106 So. 269, Clausell v. Riley, 188 Miss. 647, 196 So. 245, and especially Fox v. Wilkins et al., 201 Miss. 78, 28 So.2d 577, 578, from which appellees quote: "We need not sustain by citation authorities which compel one operating lands as a cotenant of those to whom he is related by family ties, and who, as their agent, manages a common property for their mutual benefit, to show by clear an convincing testimony the acquisition of a part thereof by adverse possession." We think in the case at bar the evidence is clear and convincing that A.G. Ferguson acquired by adverse possession the land involved, and he had a right to sell it to his daughter, "against the claims of all persons". Furthermore, Angus G. Ferguson has not been shown by any substantial evidence in this record to have operated the W 1/2 of SE 1/4 of Section 4, Township 9 North of Range 10 as a cotenant, or as the agent of other heirs of his father. Quite the opposite is established, we think, by a clear preponderance of the proof.
We held in Shelby v. Rhodes et al., 105 Miss. 255, 62 So. 232, Ann. Cas. 1916D, 1306, that (syllabus): (Hn 1) "The rule which prevents one tenant in common from purchasing an outstanding title to the common property and setting it up against his cotenant is founded upon the confidential relation which is presumed to exist between them, and has no application where the circumstances surrounding them negative any such relation, and show that they, though in law tenants in common, are not such in fact, and are asserting hostile claims against each other with reference to the common property." We think that case is squarely in point here. We are also of the opinion that McDonald et al. v. Robertson et al., Miss., 38 So.2d 189, not yet published in state reports, is pertinent to the issues before us, and favorable to contentions of appellant.
In the early case of Iler v. Routh's Heirs, 3 How. 276 4 Miss. 276, this court said: "It is unquestionably true, that in general, the entry of one heir will inure to the benefit of all, and that if the entry is made as heir without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with the rights of the other heirs. But (Hn 2) it is clear that one heir may disseise his co-heirs, and hold an adverse possession against them, as well as a stranger, and notwithstanding an entry as heir, the party may afterwards, by disseisin and of his co-heirs, acquire exclusive possession, on which the statute will run." We then further said, "Any act of one joint tenant which is evidence of a claim of exclusive ownership, such as taking all the rents and profits to himself, will constitute a disseisin."
(Hn 3) Furthermore with reference to whatever protests and objections by the co-heirs of A.G. Ferguson, the record of the trial of this cause may reflect, they were merely verbal protests or statements and were insufficient to stop the running of the statute of limitations in favor of Angus G. Ferguson, and against appellees. Daniels v. Jordan, 161 Miss. 78, 134 So. 903.
See also Jones et al. v. Hoover et al., Miss., 37 So.2d 490, 493, not yet reported in State reports, wherein we said: "Any presumption that the title was being held for the benefit of all the cotenants when this suit was filed on June 21, 1940, was fully overcome by the fact that W.H. Hoover took possession of the land after the foreclosure on May 21, 1929, in such manner as to amount to complete ouster of his alleged cotenants."
Appellees contend that there is some dissimilarity of facts in the Iler and Jones cases, as compared with the case at bar. Of course there is, but the facts are comparable enough to justify the application here of principles approved there, which, we think, conclusively control the present suit. Facts may vary, but fundamental principles do not. (Hn 4) It is clear to us, in accordance with the overwhelming weight of the evidence that, beginning with his tax purchase, Angus G. Ferguson progressively, exclusively, peaceably, continuously, adversely, and notoriously claimed and occupied the land he conveyed to appellant in 1934, and on that date was the absolute owner thereof, and his daughter is now, and was when she filed her original bill.
We, therefore, hold that the learned Chancellor was manifestly wrong, and the decree of the Chancery Court will be reversed, and decree rendered here for appellant, confirming her title to the entire West half of the Southeast quarter of section 4, and cancelling all claims of the defendants and appellees thereto.
Reversed and decree here for appellant.