Opinion
December 31, 1948.
1. Adverse possession — tenants in common — notice of ouster.
When the owner of a tract of land deeded the entire interest to it in severalty to his daughter, reserving a life estate therein, and upon his death the daughter remained in the exclusive and undisputed possession claiming the land as her own and so remained for more than ten years and all her brothers and sisters knew all the while of the execution of the deed and of her possession under it, the brothers and sisters could not afterwards, on ascertaining that the supposed deed was in legal effect testamentary in character, assert that the occupancy by their sister was as a tenant in common for want of notice by her to them of their ouster — they had in fact all the notice of it that was necessary.
2. Deeds — confidential relations of parties — presumption of fraud, when not available.
The owner of a tract of land being afflicted with an incurable physical ailment and desiring to convey a large part of the land to her sister and brother-in-law with whom she had lived as a member of their household for many years, sent for her lawyer and in the presence of her physician and of two neighbors whom she had requested to be present, she gave directions in detail to the lawyer as to what she wanted in her deed stating the reasons therefor, and all the witnesses present vouched unreservedly for the integrity of the transaction: Held that no factual basis existed for a presumption of fraud on account of her confidential relations with the grantees.
APPEAL from the chancery court of Jefferson Davis, NEVILLE PATTERSON, Chancellor.
Livingston Fair, and Neal Prisock, for appellants.
The court held that Eliza Coulter entered the land under color of title from her father and mother, and that the title had ripened in her by adverse possession. We have no quarrel to make about that holding of the chancery court, but think the holding was correct and the title to the land was in Eliza Coulter.
The original bill sought the cancellation of certain oil leases and mineral deeds executed by the brothers and sisters of Eliza Coulter, and further sought confirmation of the title to the land in the complainants, the Robersons. The appellants filed an answer and cross-bill in the cause admitting the validity of the deed from John J. Coulter and his wife to Eliza Coulter, but challenged the validity of the deed from Eliza Coulter to the Robersons.
The appellants alleged in their cross-bill that this deed was void for the following reason: That there was a fiduciary relationship existing at the time between Eliza Coulter and the Robersons, and the deed was, therefore, void on account of this fiduciary relation, and is presumed to be void.
We invite the court's especial attention to an important case which is on all-fours with the case at bar, if there is any such thing as being two cases that are alike in fact and law involving fraud. This is the case of Ham v. Ham (1926), 146 Miss. 161, 110 So. 583.
This was a case wherein it was held that the evidence showed there was a fiduciary relationship in fact between partners who were brothers and in which the court held that the deed was prima facie fraudulent. The court further held that the rules governing deeds between parties to a fiduciary relation in fact are the same as those where the parties occupy a confidential fiduciary relation as to presumption of fraud. The court further held: "There is a presumption of invalidity of deed between parties to fiduciary relation, requiring evidence of full knowledge and independent consent and action." And further: "Burden of overcoming presumption of invalidity of deed between parties to fiduciary relation is on party claiming under it." And "Evidence in suit to set aside deed between parties in confidential relation held not to show grantor at time of its execution had full knowledge of property's value or of its relation thereto of the consideration, or that it was executed of his own independent consent and action." The court further held: "The usual if not the only way of proving independent consent and action of grantor in deed to one in confidential relation with him is by showing that in making deed he acted on advice of competent person disconnected from grantee, and devoted wholly to grantor's interest."
In addition to going quite fully into the facts as a basis for the court's holding Justice Smith stated: "It will be observed from the foregoing statement that the conventional, fiduciary relation that existed between C.M. Ham and Eugene Ham was that of partners in business."
The opinion goes into the question of the rule governing gifts, conveyances, etc., between parties who occupy fiduciary relations and says that such transfers are controlled by the same rule as in the relationship between physician and patient, attorney and client, guardian and ward, trustee and cestui que trust, etc.
We want to call the court's especial attention also to the fact that in that case the question of the value of the property was discussed and while testimony as to the value of the property was excluded in the court below there was some evidence tending to show the value which was not excluded. At any rate it was apparent that there was an inadequate consideration from whatever evidence there was but it is apparent that Chief Justice Smith takes the position that where the evidence failed to disclose that the grantor had full knowledge of the value of the property conveyed and of the relationship of the consideration thereto and the evidence fails to show that it was executed of his own independent consent and action that the conveyance was void.
We now call the court's attention to the case of Bourn v. Bourn (1932), 163 Miss. 71, 140 So. 518. This was a case in which the mother conveyed to her son, thinking that she was making a will. She was a widow. The consideration was for the son undertaking to care for her during the remainder of her life. Our court speaking through Justice Anderson held that: "Son to whom mother conveyed land occupied very close fiduciary relationship subject to rules governing conventional fiduciary relations." "Where fiduciary relation exists as between parties to deed presumption of invalidity arises which requires clear evidence to overcome." "Such presumption can be overcome only by clear evidence of good faith, or full knowledge, and of independent consent and action." This case quoted at length from the case of Ham v. Ham, supra.
Now we come to the case of Watkins v. Martin (1933), 167 Miss. 343, 147 So. 652. This is another case directly and squarely in point, in law and in fact and which we desire to call to the attention of the court for its special consideration. It presents the case of fiduciary and confidential relation, not actual or positive fraud but of constructive or legal fraud, growing out of the relationship of partners, and involving similar facts as to the confidence bestowed upon the grantee by the grantor, the handling of the partnership's affairs by the grantee as well as the grantor, but evidently with more activity and actual exercise and control by the confiding party, the grantor, in the deed than is shown by the evidence in the case at bar. No doubt the grantor in this case possessed more actual knowledge of the business of the partnership than the partner who was the grantee in the deed.
In the case at bar there is absolutely not a particle of testimony to the effect that the grantor received independent advice and counsel about the business she was to transact on the date of the execution of the deed. There is some evidence however to the effect that Mr. Livingston was consulted before the date of the execution of the deed and gave some advice, but the record does not disclose the nature of that advice. The court will bear in mind that at the time Mr. Livingston was present, and some sort of advice given by him, that the Robersons were also present in the room at that time. Neither Mr. Livingston, Mr. Wiggington, nor Mr. Polk testified as to whether that advice was followed.
And now we call to the attention of the court the case of Fant v. Fant, 162 So. 159. While the case was affirmed and the deeds upheld, by an examination of the case itself it will be shown that because the bill was sworn to on information and belief and answer under oath was not waived and the answer of the defendants were sworn to as being true and correct that this under the rules of out pleading was sufficient evidence to overcome the burden of proof. It was sufficient because there was absolutely no other evidence to the contrary but the principle of law involved is in point as well as the facts.
Martin Farr, for cross-appellants.
J.J. Coulter, the owner of the land in this suit, died, intestate, on May 3, 1921, residing on the land with his wife, Mrs. N.J. Coulter and his daughter, Eliza Coulter. This was their homestead. On that day he executed a certain instrument of writing. Please note that this instrument provides: ". . . But not until the death of both grantors does the title pass. . . ." He refers here to himself and his wife, Mrs. N.J. Coulter. Please note also that Mrs. N.J. Coulter died August 1, 1923, more than two years after the death of her husband.
"Tenants in common by descent occupy a confidential relation towards each other by operation of law as to the joint property and the same reciprocal duties are imposed as if a joint trust were created between them or by act of a third person. Their mutual duties to sustain and protect the common interest will be vindicated and enforced in a court of equity as a trust and they and those claiming under them with notice cannot assume a hostile attitude towards each other in reference to the common property." 38 Cyc. 15, Clements v. Cates, 4 S.W. 776.
"The law forbids a trustee and all other persons occupying a fiduciary or quasi-fiduciary position from taking any personal advantage touching the thing or subject as to which such fiduciary position exists. . . . If such a person acquires an interest in property as to which such relations exists, he holds it as a trustee for the benefit of those in whose interest he was prohibited from purchasing to the extent of the prohibition. This rule applies to tenants in common by descent with the same force and reason as it does to persons standing in a direct fiduciary relation to each other. For they stand by operation of law in a confidential relation to each other as to the joint property, and the duty is imposed on them to protect and secure their common interests. . . ." 49 Ark. 245.
The possession of Eliza Coulter could not become adversary without notice that her claim was antagonistic, and since she entered into possession, upon the death of her father, as a cotenant, she was required to give notice of her repudiation as a cotenant and her entry as a disseizor in order to set in motion the statute of limitations in favor of her claimed title in severalty. There must be such an intent to oust her cotenant brothers and sisters as would justify them in bringing ejectment. Bentley v. Callaghan, 79 Miss. 302, 69 Miss. 833, 13 So. 850, 65 Miss. 447, 69 Miss. 577, 69 Miss. 839. Until notice was brought to them (the cotenants) of the fact that their title was denied, they could rely upon the presumption that it was recognized.
The appellees, the Robersons and Carter, et al., and the appellants, the McDonalds, stand on the proposition that Eliza Coulter acquired title to this property under this Coulter instrument as color of title. Nowhere do they claim that Eliza Coulter was ever a cotenant. They stand on adverse possession under this instrument as "color of title"; and nowhere in their bill do they plead any ouster or any "bringing home" to the Coulter heirs here that Eliza Coulter repudiated the cotenancy and made a new entry as a disseizor and claimed in severalty the exclusive title; and while their evidence on possession does not anywhere show any ouster or "bringing home" to the Coulters the fact of exclusive claim or any disavowal of the cotenancy, one begun upon the death of J.J. Coulter, their evidence, if it were shown, could not be considered here, for the reason they did not plead it and nowhere in their bill or proof do they claim any relation ever existed as a cotenant.
It is not a case of a cotenant repudiating the relation and acquiring and setting up an adverse claim, but, without any disavowal of the relation as a cotenant, she claims under this color of title. It cannot be disputed that Eliza, upon the death of her father, became a cotenant with her mother, brothers and sisters.
This court has held many times, and indeed, it is the settled law of the land, that a cotenant cannot acquire an adverse title of any sort and set that up against her cotenants, her brothers and sisters. Any acquirement is for the benefit of all. Please note they are cotenants by descent, brothers and sisters, and not cotenants, or any of them, by purchase. There is no stranger in the chain of title.
We think it important to keep in mind the difference in the fiduciary relation of cotenants by descent, particularly those, as here, brothers and sisters, and tenants in common by purchase, where there may be strangers in the chain of title.
So intimate is the relation of cotenants that one cannot acquire by purchase an adverse and superior title in opposition to his cotenants unless they refuse to contribute their share of the expense of procuring it." Teideman on Real Property (Enlarged Ed.) Section 252.
Notice this states an "adverse and superior title"; it has no reference to "color of title." "Color of title" is no title at all. Being no title at all, it could certainly not be "adverse and superior" at the time of its purchase.
A tenant in common of land cannot acquire a title adverse to that of her cotenants. Wise v. Hyatt, 68 Miss. 714, 10 So. 37. Purchase by a cotenant inures to the benefit of all other cotenants. Fordney v. Ezelle, 141 Miss. 124, 106 So. 269. The rule is well founded upon the confidential relation presumed to exist. Shelby v. Rhodes, 105 Miss. 255, 62 So. 232. More particularly is this true in case of cotenancy by descent, between brothers and sisters.
Where land owned by a father and his children was sold under a deed of trust, the father secured no greater interest by his purchase at the foreclosure sale. Wyatt v. Wyatt, 81 Miss. 219, 32 So. 317; Beaman v. Beaman, 90 Miss. 762, 44 So. 987; Watson v. Benson, 108 Miss. 600, 67 So. 61. The same principle operates when the common property is sold at a tax sale, even as against the husband of a cotenant. Cohea v. Hemingway, 71 Miss. 22, 14 So. 734; Ford v. Smith, 162 Miss. 138, 137 So. 482.
The burden of proving an ouster always devolves upon the cotenant who asserts its existence. Freeman's Cotenancy and Partition (2nd Ed.) Section 222. There was no proof offered by opposing parties to show that there was ever any difference in the relation of Eliza Coulter to her cotenants, as to this property, from the father's death to the date of the mother's death and from the time Eliza made the entry following the death of her mother. The same relation, insofar as any ouster or disseizin or bringing home to her cotenants, obtained all the way through — from the death of her father until Eliza's death in 1941. Opposing parties offered much evidence, but, if the court please, it was all on the doctrine of exclusive possession. Exclusive possession is not controlling or at all important when there is the fact of cotenancy, as here. Opposing counsel "piled Pelion on Ossa to scale Olympus" in this exclusive possession doctrine, but it is not important when applied to the facts here.
"Insufficiency of Exclusive Possession. So title cannot be acquired by holding the land `exclusively.' The reason for this is that possession may be exclusive and yet not hostile. Hostility of possession cannot be assumed, as a matter of law, from mere exclusive possession, no matter how long continued." 2 C.J. Ad. Pos. Sec. 209.
"It follows, therefore, that where possession of the claimant was in its inception taken with the permission of the owner and in subordination of his title, it cannot become adverse without a distinct disavowal of the title of the owner brought home to the owner." 2 C.J. Ad. Pos. Section 210.
Please note that this rule obtains even where there is no cotenancy. Much more so is it important that "disavowal and notice and bringing home" to the cotenant is the rule. And, indeed, how much more important is this when the original entry is made as a cotenant. While not pleaded, there is no ground for estoppel here, for the reason this color of title was not superior. It was no title at all at the time of the entry. Watson v. Benson, supra.
"It is well settled that to make a disseizin that will be the commencement of a new title, producing a change by which the estate is taken from the rightful owner and placed in the wrong-doer, the possession taken by the disseizor must be hostile or adverse in its character importing a denial of the owner's title in the property claimed; otherwise, however notorious, constant and long it may be, the owner's action will not be barred." 2 C.J. Ad. Pos. Sec. 206, p. 122.
Brunini, Brunini Everett, and C.W. Sullivan and T. Price Dale, and Livingston Livingston, for appellees and cross-appellees.
There is no actual fraud or undue influence, and the facts of this case do not properly invoke the doctrine of presumed fraud as based upon fiduciary relationship. Although appellants state that they "confidently assert that a case is made out of actual or positive fraud, without the necessity of indulging in the presumption attendant in a case of constructive fraud," not one particle of evidence tending to prove actual or positive fraud was introduced, and it appears that appellants recognize this fact in their efforts to apply the well-established rule that where a fiduciary relation exists between parties, and a deed is executed from the subservient to the dominant party, there is a presumption that it is invalid as between the parties sustaining that relation at the instance of the grantor, and that generally it requires evidence of full knowledge and competent independent advice to the grantor to overcome this presumption of invalidity. Appellees agree that under a proper set of facts the presumption of invalidity is properly applicable, but respectfully submit that this is not such a case.
In a case where there is clearly shown a conventional fiduciary relationship such as attorney and client, trustee and cestui que trust, principal and agent, guardian and ward, partnership; or in a situation where the facts definitely show unquestioned reliance by one person upon another through a long-established course of business dealing; or in a situation in which one party has habitually trusted the management of his affairs to another; if it is apparent in a given transaction that an unconscionable advantage has been obtained by the person trusted over the person by whom confidence was reposed, then in such case the presumption of fraud arises with the result that the burden of going forward with the evidence to explain the transaction so as to demonstrate that there was no actual fraud is shifted to the person against whom fraud is charged. The cases cited by appellee limit the application of this presumption to such a set of facts.
The doctrine of presumptive fraud by reason of fiduciary relationship was first announced by the Mississippi Supreme Court in the case of Ham v. Ham, 146 Miss. 161, 110 So. 583, wherein it was shown that two brothers, associated as partners in a mercantile business, maintained a very close and intimate personal relationship. It appeared that C.M. Ham had a very strong and intense affection and admiration for his brother Eugene who assumed all actual management of the business from 1921 until the death of his brother in 1925. A 1905 will of C.M. Ham devised all of his property to his brothers and sisters, but on April 23, 1924, in consideration of the promise of Eugene Ham to pay $250.00 monthly for the remainder of the grantor's life, in addition to an agreement to pay the doctor and hospital bills in the event of the grantor's illness and the expenses for his burial at death, C.M. Ham conveyed practically all of his property to Eugene. Upon death of C.M. Ham his brother Eugene paid all doctors and hospital bills and burial expenses (amounting to $3,500.00), and when it appeared that the entire estate of C.M. Ham was worth approximately $80,000.00, the other brothers and sisters filed their bill to cancel and set aside the conveyance. Our Supreme Court, citing the Fourth Edition of Pomeroy's Equity Jurisprudence, Section 956 and 957, held that under these circumstances, where parties to a fiduciary relationship in which a confidence is reposed on one side and there is a resulting superiority and influence on the other consciously and intentionally deal and negotiate with each other, and there results from their dealing some conveyance or contract or gift, a presumption of invalidity of the transaction arises, and the burden of overcoming this presumption is on the party claiming under the conveyance, contract, or gift. It will be noted that the conveyance under consideration in that case was not intended as a gift, but was an ordinary bargain and sale, in which the ultimate consideration was extremely small.
In the case of Watkins, et al v. Martin, et al, 167 Miss. 343, 147 So. 652, under a set of facts almost identical to those in the Ham case, our Supreme Court reached the same conclusion. Here again there was the ordinary conventional relationship of partners existing between two brothers for a period in excess of 35 years, coupled with which there was a very high degree of mutual confidence and intense affection between them. T.E. Martin was a man of exceptional business ability and throughout the partnership was the dominant actor whereas S.W. Martin was of a retiring disposition and contented himself for the most part with the management of internal affairs of the partnership, reposing absolute trust and full dependence in his brother. Some time before S.W. Martin was stricken with a fatal illness his health began to fail, and it was at that time that his brother, after discussion with the ailing man, obtained the services of an attorney to prepare a draft of a deed conveying the interest of the dying brother in all real and personal property owned by them jointly. Under these facts the Supreme Court of Mississippi held that the case of Ham v. Ham, supra, was directly applicable, and since the fiduciary relationship was established the deed was prima facie fraudulent. The burden was on the grantee under the deed to overcome the presumption of invalidity, and no proof having been offered thereunder, the presumption stood.
The case of Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41, is the first Mississippi case which undertook to state definite rules for the application of the case of Ham v. Ham, cited above. In this case suit was filed by the grantor in an effort to set her deed aside because of fraud or undue influence practiced upon her by the grantee, her grandson. The grantor was 83 years of age when the deed was executed, feeble in body, suffering from a heart affliction, and in order to induce her grandson to live with her and care for her she conveyed the property to him in consideration of love and affection, reserving a life estate. It was shown that the grantor had great affection for this grandson. After the above stated arrangement was made the grandson moved away from the property, some dispute between the parties having developed. There was no proof of actual fraud or undue influence, and the appellees relied upon the rule now under consideration. The Supreme Court of Mississippi, recognizing this rule, held that the facts of that case did not fall within its operation, and laid down a number of distinct guides for the application of the rule, these tests being best summarized by later cases. The first of these was Wall v. Wall, 177 Miss. 743, 171 So. 675, in which the court said: "In the case of Cresswell v. Cresswell, 164 Miss. 871, 140 So. 521, 144 So. 41, this court announced the following rules upon this subject: (1) The party alleging fraud or undue influence in the procuring of a deed has the burden of proving it; (2) Persons of sound mind, except those under twenty-one years of age, and those who have been overreached, must abide the consequences of their solemn, deliberate acts in executing deeds; (3) One claiming deed was invalid because of confidential or fiduciary relations must established such relations; (4) Presumption of fraud or undue influence does not arise because of blood relationship accompanied by affection between parties to a deed; and (5) a fiduciary relation is one in which, if wrong arises, the same remedy exists against the wrongdoer on behalf of the principal, as would exist against a trustee on behalf of the cestui que trust."
Although appellees respectfully insist that the instant case is not one in which the rule of presumed fraud is applicable, assuming for the moment that it is a proper case, the evidence of Dr. Tyrone, Mr. Livingston, Mr. D.C. Wigginton and Mr. L.C. Polk clearly shows that Eliza Coulter asked for, received and acted upon the "advice of a competent person, disconnected from the grantee and devoted wholly to the grantor's interest" which our Supreme Court in Ham v. Ham, supra, said was probably the only manner of showing independent consent and action to overcome the presumption of fraud raised by the doctrine relied upon by appellants herein. Appellants sought at the trial to attack the advice given Eliza Coulter by Mr. Livingston as not being from one disconnected from the grantee, but the record shows that Mr. Livingston was representing Eliza Coulter, was not representing Griffin Roberson, and had never represented Mr. Roberson. Testimony of Mr. Livingston further shows that the conveyance from Eliza Coulter to the Robersons, prepared by him, was in complete accord with both the wishes of Eliza Coulter and the independent advice given to her by Mr. Livingston on September 17th at her request, and further that the executed conveyance, as recorded, was exactly as it had been prepared by him. Appellees respectfully submit that not only did this testimony overcome any adverse presumption which might have been raised under the doctrine of Ham v. Ham, but it established by a preponderance of the evidence the complete fairness of the transaction and the good faith, full knowledge, and independent consent and action on the part of Eliza Coulter in the execution of said instrument.
In further reference to the burden which would be placed upon appellees by application of the doctrine now under consideration, appellees believe that the case of Fant v. Fant, 173 Miss. 472, 162 So. 159, cited by appellants, should be considered. In it the court assumed that a fiduciary relationship was shown where a conveyance was executed by a lady to her cousin, one Lester G. Fant, Sr., an attorney, where the grantee had prepared the instrument, but the court said that no fiduciary relationship was shown as to the conveyance made by the grantor to the son of Lester G. Fant, Sr. And the case was disposed of by the court on the ground that the sworn answer denying undue influence over the grantor by Lester G. Fant, Sr., met the burden of going forward with the evidence to overcome the presumption of undue influence arising from the confidential relationship, if any. The case of Batson v. Draughon, 11 So.2d 203, was one in which the presumption alleged to have been created by fiduciary relationship was held to have been overcome by evidence of independent and competent advice. Under all of the cases it appears that any presumption raised by reason of fiduciary relationship is rebuttable, and, when this presumption is rebutted the burden of proving fraud remains upon the person charging it.
Title of cross-appellees is established by virtue of predecessor's entry under recorded instrument coupled with continuous, exclusive, adverse use, possession and occupancy in excess of the statutory period.
A. A deed which purports to convey the premises, though absolutely void, will serve as "color of title." In 1 American Jurisprudence 901, Adverse Possession, Sec. 196, as a part of the discussion of "color of title" in connection with adverse possession of land, the statement is made that "generally speaking, any instrument, however defective or imperfect, and no matter from what cause invalid, purporting to convey the land, and showing the extent of the tenant's claim, may be color of title; a claim to the land thereunder will draw to the claimant the protection of the statute of limitations if the other requisites of adverse possession are present." We would respectfully submit that the decision in Mississippi from as early as 1856 clearly substantiate this general statement of the rule under the laws of Mississippi. The first Mississippi case so declaring was Hanna v. Renfro, 32 Miss. 125. Other early declarations on this point are to be found in Harper v. Tapley, 35 Miss. 506, Root v. McFerrin, 37 Miss. 17, Welborn v. Anderson, 37 Miss. 155, Nash v. Fletcher, 44 Miss. 609. In the case of Hammer v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, our Supreme Court, in remarking upon a contention that a void deed, whether void on its face or not, is not color of title, stated: "The great weight of authority is in full accord with this court to the effect that an instrument void on its face may, notwithstanding, be good as color of title on which to found a claim of title by adverse possession." The most recent Mississippi decision on this point is Downing v. Starney, 35 So.2d 536 (Miss. 1948) which involved adverse possession of one holding under a recorded deed containing the following granting clause: "In consideration of love and affection I convey and warrant at my death to Mrs. Bessie Rawls . . . etc." The holding of our court, sustaining the title of the adverse claimant, was: "Regardless of the legal character of this instrument as testamentary or otherwise, which we do not decide, it was sufficient as color of title. Shepherd v. Cox, 191 Miss. 715, 731, 1 So.2d 495, 4 So.2d 217, 136 A.L.R. 1346. Entry thereunder was made by the grantee and occupancy continued by her heirs." We would respectfully submit that the facts of the instant case are substantially the same.
B. If a cotenant's entry into exclusive possession of property is under a recorded deed to the whole estate, his entry will constitute a disseisin of his cotenant, and he may thereby perfect his title as against them by adverse possession. When a person enters into possession of property avowedly as a tenant in common with others, his possession is the possession of his cotenants as long as he does not disclaim common ownership, and normally the entry and possession of one tenant in common are presumed not to be adverse to his cotenant. All the authorities recognize the general rule as thus set out; but all authorities also recognize that there are many situations in which one cotenant may perfect a complete fee-simple title to lands to the exclusion of his cotenants. Section 1899, Thompson on Real Property (permanent edition), Vol. 4, p. 405 reads as follows: "Open, adverse, and exclusive possession by one tenant in common under a recorded general warranty deed to the whole estate will constitute such a disseisin of his cotenants as time will ripen into title. An occupation of lands, beginning under deeds in fee simple of the entire title, authorizes the presumption of an intent to hold exclusive possession of the whole. The possession of the grantee being under color of title, and with claim of exclusive title, is adverse to any part owner in common. His entry and possession are referred to the title under which he claims. . . . The record of a deed, conveying to a tenant in common the entire property by a specific description, is notice to his cotenants of the existence of such deed. The char-inferred from the conveyance and title under which he claims and will be regarded as adverse to the title of his cotenants." To the same effect is Angell on Limitations, Section 429. 1 American Jurisprudence 826, in its discussion under Section 55 of Adverse Possession, states that the purchase of an outstanding title to lands by one of several cotenants will not have any effect toward constituting such an ouster of his cotenant as would lay the foundation for the commencement of an (action of) adverse possession against him, but the text further states "However, if one enters under color of title, claiming the whole for himself, and other necessary conditions of adverse ownership concur, his possession will be adverse to his cotenant." Where possession is not avowedly taken as a tenant in common or under a deed which defines his title as such, there can be only the one conclusion reached and that is that he claims the land for his sole benefit. The cases bear this statement out, and although the exact fact situation now presented does not appear to have arisen often, in every reported case which we have found, the title of the person claiming under a conveyance granting the full title to himself and holding possession thereof for the required statutory period has been protected. Ellington v. Ellington, 103 N.C. 54, 9 S.E. 208; McCann v. Welch, 106 Wis. 142, 81 N.W. 996; Gilmore v. Griffith, 187 Iowa 327, 174 N.W. 273; Livingston v. Livingston, 210 Ala. 420, 98 So. 281; Theisen v. Qualley, 42 S.D. 367, 175 N.W. 556; Johns v. Scobie, 12 Cal.2d 618, 86 P.2d 820, 121 A.L.R. 1404.
The facts of all of the cases noted hereinabove involved the claim of one person under a recorded instrument of one character or another which, by reason of its invalidity passed no title. In each fact situation the result of the invalidity of the particular paper title was that the parties to the litigation were cotenants, exactly as in the case at hand. But in each of said cases, in view of the fact that the original entry into possession by one cotenant had been under a recorded instrument purporting to convey the full title to the entrant, the court was entirely correct in stating that the original entry was not in subordination of the common title, but was adverse thereto, with the necessary result that when the exclusive possession had continued for the statutory period, the rights of the cotenants became barred forever. For other jurisdictions which are in accord see Kotz v. Belz, 178 Ill. 434, 53 N.E. 367; Baber v. Baber, 121 Virginia 740, 94 S.E. 209, McKinney v. Beattie, 157 Ark. 356, 248 S.W. 280; Cole v. Cole, 98 Nebraska 674, 154 N.W. 248.
Although there have been no decisions in Mississippi exactly the same as the instant case on their facts, we would respectfully submit to your Honors that there are a number of cases decided by our Supreme Court which have recognized the fact that in a proper set of circumstances one cotenant may perfect his claim of title to real estate as against the rights or claims of his cotenants by reason of adverse use, possession and occupancy of the premises for the statutory period. We shall note only four of these decisions. Eastman, Gardner Co. v. Hinton, 86 Miss. 604, 38 So. 779; Shelby v. Rhodes, 105 Miss. 255, 62 So. 232; Peeples v. Boykin, 132 Miss. 359, 96 So. 177; Farnsworth v. O'Neal, 158 Miss. 218, 130 So. 101.
Under all the Mississippi decisions which have barred suit to the cotenant the facts have shown, as in this case, the original entry of the particular person through whom the adverse claimant deraigns his title to have been made under such circumstances and in such a manner that there was no recognition of the common ownership. The entry had been made in hostility to the common title and in reliance upon a completely separate title or in such direct hostility to the claim of the cotenants as to have commenced the running of the statute although no different title was claimed by the entrant. The focal point of the case now presented is the fact that Eliza Coulter held under a recorded deed purporting to convey title to the lands in dispute at the deaths of the grantors therein. Immediately upon the death of the survivor of the grantors in 1923 she entered into possession of the lands in dispute and retained exclusive possession thereof until the date of her death. Her claim of title at no point recognized any interest of the cross-appellants herein as her co-heirs and her possession must be referred to the deed through whom she claimed, which, though completely void, was of record. Its existence was known as a matter of fact as well as a matter of law by her brothers and sisters. That deed evidenced claim to a complete title in fee. The friends and neighbors of the children of J.J. and N.J. Coulter testified that the lands were claimed by Eliza Coulter and that she alone used the lands and received the benefit therefrom. One of the cross-appellants stated that Eliza never at any time accounted to her alleged cotenants for the proceeds which she derived from the use of the land. Again we respectfully submit that not only does the record show without dispute that Eliza claimed to own the lands in question and that her claim was open, notorious, and adverse as against all the world coupled with the exclusive use and possession of the lands in such a manner as to reasonably apprise cross-appellants of the fact of the claim; it further shows that her brothers and sisters had actual knowledge of these facts and by maintaining silence for over twenty years from the date of her original entry have forfeited any rights they may formerly have had. They are now, and properly should be, barred by limitations.
For many years prior to May 3, 1921, J.J. Coulter and his wife had lived on the land here in question as their homestead. Their daughter Eliza lived with them, and had for many years theretofore. Their other children had married and moved to their own homes, some of them within the same neighborhood. To each of the children, other than Eliza, Mr. Coulter had given a piece of property. One of the sons, D.W. Coulter, the only witness introduced by appellants on this issue, testified: Q. "Among the children it was freely discussed that he wanted to give each of his children a piece of property?" A. "Yes. That is what he did." On or about the date first mentioned, Mr. Coulter called in the neighboring justice of the peace and told him that he wanted to deed to his daughter "the land that he owned there and he wanted him and his wife to hold possession of the land until their death." An instrument dated May 3, 1921, was accordingly prepared, executed, acknowledged and promptly recorded, with the supposition of all parties concerned that it was a deed to Eliza to the land, being about 147 acres. Mr. Coulter died on the night of May 3, 1921, and Eliza and her mother continued to live on the land until the death of the mother on August 3, 1923. In a few days thereafter, Eliza moved to the adjoining home of her sister and her sister's husband, Mr. and Mrs. G.B. Roberson, appellees. Eliza retained complete and exclusive possession of the property under claim of title to it, without any counter claim by any person, including her brothers and sisters, until Eliza's death, which occurred on October 2, 1941. Her adverse possession is so adequately and completely proved that it could admit of no question except for the matter now to be mentioned.
After natural gas had been discovered in that immediate territory, but long after the elapse of the statutory period of adverse possession, the question was raised that the instrument dated and delivered May 3, 1921, and which was supposed to have been a deed to Eliza was testamentary in character and conveyed no title. It was so held by this Court in Coulter v. Carter, 200 Miss. 135, 26 So.2d 344; whereupon Eliza's title by adverse possession was challenged on the ground that her occupancy was as a tenant in common and could not be adverse to her brothers and sisters in the absence of actual notice to them that she was holding in her sole right and behalf and that they must consider themselves ousted.
In Peeples v. Boykin, 132 Miss. 359, 96 So. 177, this Court held that where a person who would otherwise be a tenant in common remained in exclusive and continuous possession, claiming to be the owner under a recorded deed purporting to convey the entire interest in the property, the title would mature in the occupant on the expiration of ten years from the date of the recordation of the deed, even though the deed in severalty was made by other tenants in common, and there was no visible change in the character of the occupancy after the recordation of the deed, and no actual notice was given by the occupant — the theory being that when the deed was recorded, that fact, coupled with the occupancy under it, gave rise immediately to a cause of action to the co-tenants whose interests had not been conveyed.
The soundness of the opinion in Peeples v. Boykin has been frequently questioned, and we have mentioned it in order to disclose that we do not base our present decision upon it; but (Hn 1) we are holding in the present case that the tenants in common had actual knowledge of the purported deed and of its execution, or had such knowledge as to import notice to them of it, and that the possession was being held under it as a matter of right to the exclusion of all others.
One of the brothers was actually present when the instrument of May 3, 1921, was executed and he testified, in effect, that everybody in the Coulter family knew about it, and no witness disputes this fact. Upon their mother's death, there was a division among her children of certain of the personal property, and all departed leaving Eliza in possession, all of them, as already stated, having knowledge or knowledge amounting to notice that Eliza had a recorded paper which purports to grant to her the entire interest in the land, and there they allowed her to remain in exclusive possession under claim of title without any sort of interference for more than fifteen years. And it is immaterial that it now turns out that the instrument of May 3, 1921, which was thought to be a deed, was of no validity as a deed, for in any event it was color of title in severalty. See Downing v. Starnes, Miss., 35 So.2d 536, 537. Therefore, it was not necessary for her to give notice to her brothers and sisters of her exclusive claim, — they had in fact all the notice of it that was necessary.
As already stated, Eliza resided with her sister and her sister's husband on adjoining property until Eliza's death, a period of some eighteen years. She was treated by them as a member of the family, without charge to her for room or board. They ministered to her in her long last illness, as if she had been a daughter. She had no family of her own, although she had a married daughter who had been separated from her by some distance since infancy, with visits of only infrequent occurrence. Eliza was approaching death, as she knew, being affected with an incurable cancer, and she desired to leave the most of the 147 acres to her sister and brother-in-law, with whom she had so long made her home. Accordingly, on September 18, 1941, about two weeks before her death, she made and delivered a deed to her sister and brother-in-law, appellees here, to about three-fourths of the land, reserving the remainder and all the personal property, including money in the bank.
This deed is attacked on the ground that it is presumptively fraudulent because of the confidential relationship which existed between Eliza and the grantees, and as has often been the case, the opinion in Ham v. Ham, 146 Miss. 161, 110 So. 583, and others along similar lines have been called into service. These cases are entirely without factual application here. (Hn 2) The proof is that when Eliza realized that her time was rapidly running out, she asked her physician to bring her lawyer, naming him. The lawyer came, and she went over with him exactly what she wanted to do, getting the lawyer to draw a diagram of the land so that she could point out what land she wanted to go in the deed and what not, and she explained her reasons for her wishes, as to that part to be conveyed, all in the presence not only of the lawyer but also of the physician and two friendly old neighbors, whom she had requested to be present; and the lawyer prepared the instrument exactly as she had directed him to do. The lawyer in the case was a former circuit judge and a man whose character stands above question, and he and the other witnesses present have unreservedly vouched for the integrity of the transaction, beyond which we do not deem it necessary to comment except to add that, so far as the record shows, the daughter was not mentioned when Eliza was giving instructions to omit part of the property from the deed, but the purport and purpose of the silence was apparently recognized by all who knew the pathetic background of the facts.
The other questions raised by appellants and cross-appellants have been examined and no reversible error has been found therein.
Affirmed on direct appeal and on cross-appeal.