Opinion
No. 43143.
October 26, 1964.
1. Tenants in common — ouster — adverse possession.
Where cotenant moved onto land in 1942, paid taxes on land in his own name, worked and rented land, sold timber, rebuilt a house, retained all rents and profits as his own, recognized no cotenants and held himself out as owner, using land as he pleased and being recognized as owner of land by entire community, evidence warranted finding that he had ousted other cotenants, and acquired full title to property through adverse possession of property.
2. Tenants in common — ouster — physical ouster not necessary.
In order to establish title in tenant in common by adverse possession, a physical ouster is usual but not necessary, but the ouster must be of an unequivocal nature, and hostile to rights of other cotenants, so that intention to disseize is clear and unmistakable.
3. Tenants in common — ouster — adverse possession.
Where defendant cotenant's possession was attended with such circumstances as to evince claim of exclusive right and title, and to show the denial of right of other cotenants to participate in profits, defendant's sister who had occupied small house on land since defendant had moved thereon was ousted along with other cotenants, as she had the status of a licensee.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Jefferson County, WALTER D. COLEMAN, Chancellor.
Young Hall, Jackson; Vanue B. Lacour, A.A. Lenoir, Baton Rouge, La., for appellants.
I. Where property is sold to State for nonpayment of ad valorem tax, and later sold by the State to a third party who later sells property to one of several co-owners, even where co-owner takes said title in his own name, said purchase in law will be treated merely as redemption for all of the co-owners. Therefore, the purchase by Mose Green from Roy Georghegan, who had purchased from the State, was a redemption for all co-owners of the property. Beaman v. Beaman, 90 Miss. 762, 44 So. 987; Howard v. Wactor (Miss.), 41 So.2d 259; Scottish American Mortgage Co. v. Bunckley, 88 Miss. 641, 41 So. 502; Shelby v. Rhodes, 105 Miss. 255, 62 So. 232; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Wall v. Wall, 220 Miss. 642, 71 So.2d 308; Wilder v. Currie, 231 Miss. 461, 95 So.2d 563, 97 So.2d 384; 14 Am. Jur., Cotenancy, Sec. 54 p. 123.
II. One co-tenant cannot adversely possess as to another co-tenant by simply possessing and utilizing property because each co-tenant is entitled to possession of the whole; and in order to adversely possess, the co-tenant in possession must oust his co-tenants, which can only be done by actual notice to his co-tenants or by such conduct so unequivocal that knowledge on the part of the co-tenant out of possession must be necessarily presumed. Bush v. Quinn, 236 Miss. 895, 112 So.2d 231; Wilder v. Currie, supra.
III. Co-tenant in possession has the right and the duty to pay taxes, maintain and improve common property, and such acts without actual notice or other unequivocal conduct can not be construed as notice of ouster to co-tenants out of possession. 14 Am. Jur., Cotenancy, Secs. 24, 26 pp. 95, 96.
IV. Because there was no change of circumstances by the respondents as co-tenants in possession which would cause them to be prejudicially harmed by the recognition of the cotenancy rights of the complainants, the trial court erred in holding that the rights of the complainants were barred by laches. Barksdale v. Learned, 112 Miss. 861, 73 So. 736; Dickerson v. Weeks, 106 Miss. 804, 64 So. 731; Glib v. O'Neil, 225 Ala. 92, 142 So. 397; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Smith v. Smith, supra; Anno: 54 A.L.R. 874; 86 C.J.S., Tenancy in Common, Sec. 59(f) p. 426.
Corban Corban, Fayette; Fred C. Berger, Natchez, for appellees.
I. The purchase by Mose Green was for himself, and he took possession of the property as sole owner of the property and exercised such rights of ownership over the property as to perfect his title by adverse possession.
II. There was an ouster by Mose Green as against the other co-tenants.
III. The co-tenants are prevented from making claim to the property because they have been guilty of laches and are barred by estoppel.
Collation of authorities: Comans v. Tapley, 101 Miss. 203, 57 So. 567; Reed v. Bales, 240 Miss. 59, 128 So.2d 374; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Wilder v. Currie, 231 Miss. 461, 95 So.2d 563; 30 C.J.S., Laches, Sec. 115 p. 528.
This controversy from the Chancery Court of Jefferson County involves conflicting claims of cotenants to a sixty-three acre tract of land. The appellants, Elizabeth Stampley and others, brought this action to remove clouds on their alleged title against Daisy Green and others, who claim title by ouster and adverse possession. The chancery court entered a decree finding for the defendants and cross-complainants, holding that they and their predecessors had been in adverse possession of the land since at least 1942. Mose Green, the husband of Daisy Green, an appellee, purchased this land in 1939 from Roy Geoghegan, who had obtained a forfeited tax land patent from the state that same year. The court concluded that Green and his successors in title, the appellees, had ousted appellants and acquired title by open and uninterrupted adverse possession over a period of approximately twenty years.
(Hn 1) The evidence warranted the chancery court in making this finding that there had been an ouster by Green of the other cotenants, and acquisition of full title by him through adverse possession of the property. The only appellant meriting particular comment is Hannah Green Tinner, an elderly Negro woman, who claimed a small fractional interest. She died pending her appeal, and it was revived in her heirs by stipulation.
Green permitted his sister, Hannah, to occupy a small house upon the land, after he moved on it with his large family in 1942. Green paid taxes in his own name, as did his successors, and worked and rented it, sold timber, rebuilt a house, retained all rents and profits as his own, did not recognize any cotenants, and held himself out as the owner, using the land as he pleased. He was recognized as the owner by the entire community.
(Hn 2) A physical ouster is usual, but not necessary to establish title in a tenant in common by adverse possession. However, the ouster must be of an unequivocal nature, and distinctly hostile to the rights of the other cotenants, so that the intention to disseize is clear and unmistakable. The trial court found that Green's possession was attended with such circumstances as to evince a claim of exclusive right and title, and to show the denial of the right of the other cotenants to participate in the profits. (Hn 3) We can not say that it was manifestly wrong in holding there had been an ouster of Hannah, along with other cotenants. She was in the status of a licensee, and, as was said in the somewhat similar case of Brevard v. Fortune, 221 S.C. 117, 69 S.E.2d 355, 362 (1952), ". . . the occupancy of a licensee is manifestly that of the licensor." To the same effect are Nichols v. Gaddis McLaurin, Inc., 222 Miss. 207, 75 So.2d 625 (1954); and Feliz v. Feliz, 105 Cal. 1, 38 P. 521 (1894).
Affirmed.
Lee, C.J., and Gillespie, Rodgers, and Jones, JJ. concur.