Opinion
No. 33179.
May 23, 1938.
1. FORCIBLE ENTRY AND DETAINER.
Under statute prescribing form for complaint in unlawful entry and detainer proceeding on filing of which cause is at issue without further pleading, pleas, replications, rejoinders, surrejoinders, and demurrers were improper (Code 1930, section 3458).
2. APPEAL AND ERROR.
In unlawful entry and detainer action which was commenced in county court, error in pleadings following filing of complaint did not affect judgment where case was tried on merits on evidence that would have been proper and necessary had pleadings been in accord with statute (Code 1930, sections 693, 696, 3458).
3. FORCIBLE ENTRY AND DETAINER.
Unlawful entry and detainer actions may be brought only by persons authorized so to do by statute (Code 1930, section 3456).
4. FORCIBLE ENTRY AND DETAINER.
A purchaser of land at mortgage foreclosure sale was not within the classes designated in statute as authorized to maintain unlawful entry and detainer action against person in possession claiming fee-simple title by parol gift followed by adverse possession for required period (Code 1930, section 3456).
APPEAL from the circuit court of Harrison county; HON.W.A. WHITE, Judge.
W.L. Guice and J.D. Stennis, Jr., both of Biloxi, for appellant.
We respectfully submit to the court that the trial court committed manifest error in admitting the testimony of the defendants, F.W. Elmer, Jr., and Mrs. F.W. Elmer, Jr., over the objection of counsel for the plaintiff where said testimony attempts to prove adverse occupancy against F.W. Elmer, Sr., through whom said parties claimed title by virtue of a verbal promise of the said F.W. Elmer, Sr., deceased, of a gift of the property involved in this litigation, and by permitting said witnesses to testify with reference to their claim against the estate of said deceased person. Here are two persons attempting by their testimony to prove adverse possession of a piece of property alleged to have been by parole gift during the lifetime of the donor given to one of said persons, who is the wife of the other, and whose father-in-law and father respectively was the alleged donor. This adverse possession is attempted to be proven by said witnesses to defeat the right of possession of the appellant who had foreclosed the mortgage or deed of trust solemnly executed by this husband of the alleged donee and his sisters, who were tenants in common with him of his father's (the donor's) estate.
Section 1529, Code of 1930; Liverman v. Lee, 86 Miss. 370; Baldridge v. Stribbling, 101 Miss. 666; Jackson v. Johnson, 126 Miss. 26; Brown v. Parker, 143 Miss. 291; Coker v. Lewis, 135 Miss. 118.
We respectfully submit to the court that the trial court erred in failing to exclude the testimony offered by Mrs. F.W. Elmer, Jr., with reference to her adverse possession or the verbal gift by F.W. Elmer, Sr., to said witness alleged to have been made during his lifetime.
The trial court erred in dismissing plaintiff's complaint and rendering judgment for the defendants against the plaintiff.
Beaman v. Beaman, 90 Miss. 760.
It is true that even a co-tenant may acquire title through adverse possession against his co-tenant provided his possession is hostile, notorious, adverse, and with knowledge of his co-tenants, and some effort must be made to assert such right.
Hignite v. Hignite, 63 Miss. 447; Bentley v. Executor, 79 Miss. 303.
But the possession and claim of title in such instance must be antagonistic to the interest of the co-tenants, and the fact that one of the co-tenants occupies the property held in co-tenancy but asserts no title adverse to the title of his co-tenants, regardless of the length of time during which he might occupy same, does not divest title from his co-tenants, and even though his occupancy thereof be for more than ten years the ten year statute of limitations regarding adverse possession can avail him nothing.
Smith v. Cunningham, 79 Miss. 425, 30 So. 652; Native Lbr. Co. v. Elmer, 117 Miss. 720.
It is well settled that neither a husband nor a wife can acquire title by adverse possession, as against the other, of land of which they are in joint occupancy, during the continuance of the family relation, and this is particularly true where they hold by entireties.
1 R.C.L. 755, sec. 83.
The record shows that the appellee, F.W. Elmer, Jr., owned several pieces of property in co-tenancy as tenant in common with the other heirs-at-law of his deceased father at the time of the execution of the deed of trust through which appellant acquired title to and her right of possession of the property involved and his selection of a homestead was made by him electing to mortgage the property involved in the case at bar and not to mortgage other property.
Rutherford v. Jamieson, 65 Miss. 219.
We respectfully submit that the record showing the execution of the deed of trust by the heirs at law of F.W. Elmer, Sr., deceased, in favor of appellant's assignor, the foreclosure of said deed of trust through proceedings in the Chancery Court of Harrison County, and the purchase by appellant of said property coupled with the agreement executed by appellee F.W. Elmer, Jr., for the payment of rent on the particular property involved in the case at bar, and the subsequent attornment by appellees to appellant by the paying of rent, the request for permission to remove flowers, the plea for abatement of ouster proceedings during a period which would greatly inconvenience appellees, the request for and acceptance by appellees of repairs to said premises at the expense of appellant, and the failure of appellees to pay taxes on said premises for a period far in excess of the time during which, had appellant failed to pay taxes thereon, the title to said property would have become vested in a purchaser or purchasers at tax sale or sales, leaves no question in the mind of anyone reading the record in the case at bar as to whether or not appellant was entitled to maintain this proceeding of unlawful entry and detainer.
We have plainly shown by the record the appellant as mortgagee, cestui que trust, landlord, and the grantee under contract expressed or implied, held out of possession within one year next before the filing of this suit by, "mortgagor, tenant, vendee, vendor, and grantor," after the expiration of said "mortgagor's, vendee's, vendor's and grantor's of right to possession."
Glenn v. Caldwell, 74 Miss. 49, 20 So. 152.
We respectfully submit to the court that the appellee neither established and proved complete title and adverse possession of the land involved in this controversy by virtue of a parole gift coupled with ten years adverse possession, nor was she entitled to make such proof in a suit of unlawful entry and detainer.
The judgment rendered herein is wholly contrary to the law and evidence in said cause.
We respectfully submit that however strict might be the construction of Section 3456 of the Code of 1930, the case at bar is obviously well within said statute. Mize, Thompson Mize, of Gulfport, for appellees.
Since the action is one of unlawful entry and detainer and not of ejectment, under the statement appellant must by her pleadings and proof bring herself within the purview of the statute, which is Sec. 3456 of the Code of 1930.
It is apparent from a careful reading of Section 3456 that before any litigant can maintain an action in unlawful entry and detainer against any particular defendant, it must be necessary for such litigant or plaintiff to bring the action against a person who claimed the land either through the plaintiff or some predecessor in title of the plaintiff, otherwise the proper remedy ceases to be one of unlawful entry and detainer and becomes an action of ejectment either at law or in equity. Whenever two completely antagonistic titles are set up in the same law suit unlawful entry and detainer is never the correct action and it has been so held by all of the courts from time immemorial.
Taylor v. Orlansky, 92 Miss. 761, 46 So. 50; 6 C.J. 801, 810 and 812.
This action of unlawful entry and detainer unless otherwise provided by statute cannot be maintained by a person who has never been in actual possession of the land.
26 C.J. 816; 2 R.C.L. 1136-1144, 1157; Robinson v. Boggan, 97 Miss. 27, 52 So. 705; Cummings v. Kilpatrick, 23 Miss. 106.
The testimony shows overwhelmingly, and the court so found, that Mrs. F.W. Elmer, Jr., had established her claim by virtue of a parole gift coupled with ten years of peaceable, open, notorious, continuous, hostile and uninterrupted adverse possession and the defendant, F.W. Elmer, Jr., was a competent witness to testify in support of his wife's claim.
Ellis v. Berry, 145 Miss. 652, 110 So. 211; Saffold v. Horne, 72 Miss. 470, 18 So. 433; Ellis v. Alford, 64 Miss. 8.
There can be no question but that in this state a parole gift coupled with ten years adverse possession is perfect title.
Geohgan v. Marshal, 66 Miss. 676, 6 So. 502; Davis v. Davis, 68 Miss. 478, 10 So. 70; Stewart v. Foxworth 95 Miss. 442, 52 So. 354.
If the court could possibly hold that she failed to establish her title by adverse possession then the mortgage under which the appellant claims title by virtue of a foreclosure sale was absolutely void as to her, first, because she did not sign the mortgage or acquiesce and secondly, she had been in possession continuously using it as a home for eighteen years without interruption and thirdly, that the limited interest of her husband was subject to a homestead right or veto power.
Lewis v. White, 69 Miss. 352, 13 So. 349; Chapman v. White Sewing Machine Co., 77 Miss. 890, 28 So. 749; Chapman v. White Sewing Machine Co., 78 Miss. 438, 28 So. 735; Gardner v. Cook, 158 So. 150.
Argued orally by W.L. Guice and John D. Stennis, Jr., for appellant and by R.W. Thompson, Jr., for appellee.
This is an unlawful entry and detainer case begun by the appellant in the county court of Harrison County against Mrs. F.W. Elmer, who will hereinafter be referred to as the appellee, her husband, F.W. Elmer, and Mrs. Mary E. Halliday, the latter two of whom assert no title to, or claim to the possession of, the land.
The appellant's initial pleading, which was sworn, to, sets forth her title to the land, and that the defendants are unlawfully withholding "from her the possession thereof through force and strategy after the expiration of any right by contract express or implied," and facts on which a claim for rent of the land is based.
This pleading was followed by pleas, replications, rejoinders, surrejoinders and demurrers, all of which were beside the mark under section 3458, Code 1930, which prescribes the form for a complaint in an unlawful entry and detainer proceeding, on the filing of which the cause is at issue without further pleading.
It is true that the case was begun in a county court which had jurisdiction thereof under section 693, Code 1930, but section 696 of that Code provides that "The rule of pleading, practice, and procedure in the said county court shall be the same as those now, or which may hereafter be established as governing the several other courts, as respects the several matters mentioned; that is to say, in proceedings which, if there were no county court, would have to be brought in a court of a justice of the peace, or before a tribunal of a justice or justices of the peace, the same practice in the county court shall be followed as if the matter were in said justice court, general or special." Prior to the creation of county courts, actions on unlawful entry and detainer were cognizable only by a special court consisting of three justices of the peace. This error in procedure, however, is here of no consequence, because the case was tried on its merits on evidence that would have been proper and necessary had the pleadings been in accord with section 3458, Code 1930. This being true it will not be necessary to pass on the challenged rulings of the county court on the demurrers.
Several questions are presented by the briefs of counsel, but there is one that lies at the threshold of the case, our answer to which will result in the judgment of the county court being correct. That question is: Is the case presented by the evidence one in which, under section 3456, Code 1930, an action of unlawful entry and detainer will lie?
Actions of unlawful entry and detainer may be brought only by persons authorized so to do by section 3456, Code 1930. McCorkle v. Yarrell, 55 Miss. 576; Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383. That section provides two general classes of persons who may resort to such an action: (1) "Any one deprived of the possession of land by force, intimidation, fraud, stratagem, stealth"; and (2) "any landlord, vendor, vendee, mortgagee, or trustee, or cestui que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, vendor, mortgagor, grantor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him."
The evidence does not bring the appellant within either of these classes. That for the appellant, in substance, is as follows: F.W. Elmer owned a lot or tract of land which embraced that here in controversy. He died in 1926, leaving as his heirs several children. After his death these children executed a mortgage on the land which was foreclosed in 1935, and the land was purchased under the foreclosure by the appellant. Prior to the foreclosure of the mortgage, F.W. Elmer, Jr., a son of the former owner of the land and one of the parties to the mortgage, and who, together with his wife, was living on that particular portion of the land here in controversy, paid rent thereon to an agent of the Elmer heirs, or of the mortgagee — which is not clear — and probably after the foreclosure of the mortgage to an agent of the appellant. The appellee was not a party to this mortgage or to the rent agreement.
The evidence for the appellee is that the land was given to her in 1919 by F.W. Elmer, her husband's father, who then owned it, and shortly thereafter she and her husband moved into a residence thereon, and have since continuously resided therein.
In order for this action to lie, the appellee must be withholding possession of the land from the appellant "after the expiration of her right of contract, express or implied, to hold possession" thereof. The evidence for the appellant does not disclose, and that for the appellee negatives, the withholding of the land by the appellee from the appellant under a contract that has expired. On the contrary, the appellee's evidence discloses that she claims a fee-simple title to the land — a parol gift followed by adverse possession for the required period.
Affirmed.