Opinion
No. 39968.
March 5, 1956.
1. Tenants in common — ouster — evidence required to establish — notice of adverse claim.
In order to establish ouster of cotenants by tenant in common in possession, cotenants out of possession must have notice of adverse claim either from actual knowledge or by acts equivalent thereto, and clear and convincing evidence is essential to support an ouster by a cotenant.
2. Tenants in common — ouster — evidence — insufficient to establish — as to certain cross-defendants.
In action to partition 320 acres of farm land by complainantheirs representing 7/10ths interest, wherein defendant-heirs representing 3/10ths interest filed answer and cross-bill alleging that 80 acres of land involved passed to named defendant as devisee under life tenant — mother's will, and that he had acquired title thereto by adverse possession, where Chancllor believed five of eight complainants who testified that they did not know that named defendant claimed the 80 acres by adverse possession, although the three defendants testified that all complainants knew of adverse claim, Chancellor, under facts of case, was warranted in believing that such notice was not conveyed to other three complainants who had not testified, and that an ouster had not been established.
3. Evidence — cotenant as reputed owner — properly excluded — where not based on general reputation.
Evidence that cotenant was reputed to be owner of 80 acre tract was properly excluded where it was based on what cotenant said and not on general reputation.
4. Evidence — adverse possession — evidence — admissions in answer — as establishing against certain defendants.
Where answer of three defendants alleged that 80 acres of land involved had passed to named defendant under his mother's will and that he had acquired title thereto by adverse possession, and three defendant-heirs testified that all of complainants knew about their mother's will and knew nature of named defendant's possession and that he was claiming land under mother's will adversely, under answer and evidence the named defendant had acquired the interest of the other two defendants.
5. Partition — in kind — realty not susceptible to — sale ordered — division of proceeds.
Evidence sustained finding that 320 acre farm was not susceptible to partition in kind and that farm should be sold and proceeds of sale divided.
Headnotes as approved by Lee, J.
APPEAL from the Chancery Court of Simpson County; NEVILLE PATTERSON, Chancellor.
E.L. W.W. Dent, Collins; Hedgepeth, Ewing Hedgepeth, Jackson, for appellants.
I. Adverse possession under claim of fee simple devise will vest title in the claimant and against his cotenants at law. Federal Land Bank of N.O. v. Newsom, 175 Miss. 114, 166 So. 345; Kohlheim v. Harrison, 34 Miss. 457; Wallace v. McPherson, 187 Tenn. 333, 214 S.W.2d 50; Hughes v. Hall, 284 Ill. 628, 120 N.E. 567; McKinney v. Beattie, 157 Ark. 34; Peeples v. Boykin, 132 Miss. 359, 96 So. 177; Nichols v. Gaddis McLaurin, Inc., 222 Miss. 207, 75 So.2d 625; Sec. 505, Code 1942; Freeman on Cotenancy and Partition (2d ed.), Secs. 230-31.
II. Even if adverse possession of a tenant in common under exclusive claim of fee simple devise were not sufficient in itself, such claim in consideration of other circumstances will vest title in the claimant. Peeples v. Boykin, supra; Nichols v. Gaddis McLaurin, Inc., supra; Annos. 121 A.L.R. pp. 1404, 1411.
A. Execution of mineral lease. Chatman v. Carter, 209 Miss. 16, 45 So.2d 481; Peeples v. Boykin, supra; Nichols v. Gaddis McLaurin, Inc., supra; Henry v. Henderson, 216 Miss. 214, 62 So.2d 319.
B. Payment of taxes. Nichols v. Gaddis McLaurin, Inc., supra; Henry v. Henderson, supra; Ferguson v. Chancellor, 206 Miss. 518, 40 So.2d 275; Alewine v. Pitcock, 209 Miss. 362, 47 So.2d 147; McCaughn v. Young, 85 Miss. 277, 37 So. 839.
C. Appropriation of crops, rents and profits. Iler v. Routh's Heirs, 4 Miss. (3 How.) 276; Ferguson v. Chancellor, supra.
D. Lasting and valuable improvements inconsistent with cotenancy. Henry v. Henderson, supra; Ferguson v. Chancellor, supra; Alewine v. Pitcock, supra.
E. Cultivation and clearing of land.
F. Accepting payment of government acreage payments. Henry v. Henderson, supra.
G. Notoriety and reputation of appellant's claim to exclusive ownership.
III. The Chancellor below erred in omitting evidence as to the notoriety and reputation of appellant's adverse possession. Kersh v. Lyons, 195 Miss. 498, 15 So.2d 768.
IV. If actual notice, or notice by acts equivalent thereto, of the appellant's adverse possession was not had by all the appellees, it was certainly had by certain ones of them.
V. The acts of the defendants to the cross-bill are equivalent to repudiation of their claim and are equivalent to actual notice to them of the appellant's adverse possession. Ferguson v. Chancellor, supra; Boyd v. Entrekin, 209 Miss. 51, 45 So.2d 848; Peeples v. Boykin, supra; Nichols v. Gaddis McLaurin, Inc., supra.
VI. Special consideration should be given to the alignment of the parties and to the weight of the evidence. Ferguson v. Chancellor, supra; Wilson v. Wilson, 166 Miss. 369, 146 So. 855.
VII. The Chancellor below erred in failing to find that the interests of G.C. Vanzandt and Homer Vanzandt had passed to the appellant. Nichols v. Gaddis McLaurin, Inc., supra.
VIII. The appellant has clearly established complete title to the premises by operation of Sections 709-711, Mississippi Code of 1942. Iler v. Routh's Heirs, supra; Nichols v. Gaddis McLaurin, Inc., supra; Vol. IV, Thompson on Real Property, Sec. 1887 p. 415.
IX. Should the appellant prevail, the cause would be remanded for reconsideration of the partition decree. 21 C.J.S., Sec. 125 pp. 186-87.
X. The Chancellor erred in specifying the interest of the appellees, Mrs. Vanda Vanzandt and Mrs. Jeanette Lackey.
XI. The appellees are further barred by the statutes of limitation by reason of the entry of a stranger under color of title. Eastman, Gardiner Co. v. Hinton, 86 Miss. 604, 38 So. 779; Ferguson v. Chancellor, supra.
James B. Sykes, Mendenhall; Satterfield, Shell, Williams Buford, Jackson, for appellees.
I. The relation of cotenants is confidential and fiduciary, and ouster of one cotenant by another must be shown by clear and convincing proof of actual knowledge of the adverse claim or acts equivalent thereto. Nichols v. Gaddis McLaurin, Inc., 222 Miss. 207, 75 So.2d 625; Hurst v. J.M. Griffin Sons, Inc., 209 Miss. 381, 46 So.2d 440; Humphrey v. Seale, 125 Miss. 207, 87 So. 446; Quarles v. Quarles, 210 Miss. 493, 49 So.2d 810; Hollingsworth v. Bilbo, 211 Miss. 155, 51 So.2d 229; Parker v. Laubenheim, 215 Miss. 373, 60 So.2d 815; Malouf v. Gully (Miss.), 1 So.2d 230; Vanzandt v. First National Bank, 220 Miss. 127, 80 So.2d 327; White v. Turner, 197 Miss. 265, 19 So.2d 825.
II. The recording of the void will was no notice to the cotenants. Nichols v. Gaddis McLaurin, Inc., supra.
III. It is the duty of the cotenant in possession to pay the taxes. Clausell v. Riley, 188 Miss. 647, 196 So. 245.
IV. Response to brief of appellants.
A. There was no adverse possession. Wallace v. McPherson, 187 Tenn. 333, 214 S.W.2d 50; Hughes v. Hall, 284 Ill. 628, 120 N.E. 567; McKinney v. Beattie, 157 Ark. 356, 248 S.W. 280.
B. There was no adverse possession and no other circumstances to support appellant. Scottish-American Mtge. Co. v. Bunckley, 88 Miss. 641, 41 So. 502; Henry v. Henderson, 216 Miss. 214, 62 So.2d 314; Clausell v. Riley, supra.
C. The Chancellor did not err in excluding hearsay from the mouth of the appellant on the question of notoriety of the alleged adverse possession.
D. None of the appellees had notice of the adverse claim of J.C. Vanzandt.
E. There has been no repudiation by any of the appellees. Hurst v. J.M. Griffin Sons, Inc., supra; White v. Turner, supra.
F. No special weight should now be given to the testimony of any of the witnesses.
G. The Court below did not find anything in its decree adverse to the interest in the lands in controversy of J.C. Vanzandt acquired through or against Homer and G.C. Vanzandt.
H. Sections 709-711 of Mississippi Code of 1942 have no application. Quarles v. Quarles, supra.
I. Of course, the cause will need to be remanded for completion of the partition.
J. There is no controversy about the interest of Mrs. Vanda Vanzandt and Mrs. Jeanette Lackey.
K. There was no entry by a stranger under color of title.
The bill of complaint of H.M. Vanzandt and seven others, representing a seven-tenths interest in the estate of E.M. Vanzandt, Sr., deceased, sought a partition of 320 acres of land, as therein described. J.C., G.C. and Dr. Homer Vanzandt, representing a three-tenths interest, were made parties defendant. The complainants and the defendants are all of the heirs at law of the decedent.
The answer of the defendants and the cross bill by J.C. Vanzandt set up that 80 acres of this land, as therein described, passed to J.C. Vanzandt under the terms of his mother's will, and that he had acquired title thereto by adverse possession for more than 10 years; and that the residue of 240 acres should be partited in kind.
The issues to be determined, under the pleadings, were whether or not J.C. Vanzandt had acquired title to the 80 acres, and whether or not the land was susceptible of division in kind, or whether it should be sold and the proceeds from such sale divided.
The proof showed that E.M. Vanzandt, Sr., died testate in January 1922. His surviving heirs at law were his widow and eleven children. One of the children, Melvin, died without issue subsequent to the death of his father. The testator, at the time of his death, owned the 320 acres in question. The will devised the land to his widow for life, with remainder to his children, share and share alike.
Mrs. L.A. Vanzandt, the widow, died testate in 1936; and her will was probated in common form on November 27, 1936. The instrument devised the 80 acres of land in question to J.C. Vanzandt.
The proof further showed that J.C. Vanzandt has lived in the home on this 80 acres practically all of his life. Following his father's death, he lived with his mother and cared for her until her death. After her death he continued to live on the place for the past 18 years. Among the acts of ownership, which he claimed that he had exercised over the land during that period are the following: (1) He cleared new ground for crops and cultivated the land. (2) He appropriated all crops, rents and profits to his own use. (3) He built fences and erected permanent improvements. (4) He paid all taxes. (5) He claimed a homestead exemption thereon. (6) He was registered with a government agency as the owner and operator and received certain government benefits thereunder. (7) He executed a power of attorney to another, which was recorded March 2, 1943, to sell timber on the land. (8) He executed a mineral lease on the land, which was filed for record on April 28, 1944. The power of attorney and mineral lease were of record more than 10 years before the filing of the bill on August 3, 1954.
J.C., G.C. and Dr. Homer Vanzandt testified that all of the complainants knew about their mother's will, wherein she devised the 80 acres to J.C.; that they knew of the nature of J.C.'s possession; and that they knew that he was claiming the land, under his mother's will, adversely to them.
For the complainants, Mrs. Georgia Vanzandt, Hooker M. Vanzandt, Mrs. Hooker M. Vanzandt, E.M. Vanzandt, Albert McQueen and Mrs. Mary Basset testified that they knew nothing of the mother's will; that they had never had any actual knowledge from J.C. that he was claiming the land against them; and that they had never heard of such a claim. Three of the complainants did not testify.
(Hn 1) The proof was ample to warrant a finding that J.C., following his mother's death, continued to do acts of the same nature in connection with this land as he had done before his father's death and which he had also done during the lifetime of his mother; and that there was no substantial change insofar as the outward possession of the place was concerned.
Nichols v. Gaddis McLaurin, (Miss.) 75 So.2d 625, is decisive of the question. In that case the deed of trust from J.N. Nichols and wife, owners of an undivided interest in the property, conveyed title to the trustee without limitation. The trustee's deed was of record. The map of the county showed the claim of ownership by Gaddis McLaurin. They had also paid all taxes. They leased the land to J.W. Nichols, a son of J.N. Nichols, and paid the rent to them. Approximately 19 years elapsed from the foreclosure on March 7, 1932, until the institution of the suit. Yet, except for those as to whom notice was actual, or the equivalent, this Court held that Gaddis McLaurin had not, under the circumstances, acquired title. The opinion said: "Because of the relationship between tenants in common, possession which in ordinary cases would constitute adverse possession is not sufficient where entry was made as a tenant in common. In the present case, before the foreclosure in 1932 James W. Nichols was in possession of the property as a tenant in common. In order to establish ouster of cotenants by a tenant in common in possession, the cotenants out of possession must have notice of his adverse claim either `from actual knowledge or as is sometimes vaguely expressed, by acts equivalent thereto', as by conduct so unequivocal that knowledge on the part of the cotenant out of possession must be necessarily presumed." It is also there said that "Clear and convincing evidence is essential to support an ouster by a cotenant * * *." The principles laid down in that case, and the authorities there cited, govern here.
(Hn 2) The appellants contend that, in view of the testimony of the defendants, all of the heirs had actual notice of J.C.'s claim, and since three of the appellees did not testify to controvert that evidence, these three at least have lost their interests to him.
But the defendants testified that all of the complainants knew about J.C.'s claim. Five of the complainants testified that they had never heard of it. The chancellor must have believed the evidence of the complainants. Since he evidently did so, he of course rejected the evidence of the defendants in that regard; and, having rejected it in that instance, he was warranted in believing that such notice was not conveyed to the other three complainants.
The probated will of E.M. Vanzandt, Sr. vested in his widow a mere life estate. His heirs, even if they knew that the widow had made a will, could assume that she did not undertake to devise more title than she held. Besides, the will was probated in common form and the heirs were not, therefore, required by process to interpose objections, if any, thereto. If claims were probated against her estate, these lands could not have been sold to enforce payment — her estate in the lands expired when she died. Consequently the case of Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, is not in point.
(Hn 3) The appellants' evidence that J.C. Vanzandt was reputed to be the owner was properly excluded because it was based on what J.C. said and not on general reputation.
(Hn 4) Under the answer and evidence of G.C. and Dr. Homer Vanzandt, J.C. has acquired their interests.
(Hn 5) It can not be justly said from the evidence before the Court that the chancellor was manifestly wrong in denying partition in kind.
Due consideration has been given to every assignment of the appellants. No reversible error appears in the record, and the cause is affirmed.
Affirmed.
McGehee, C.J. and Holmes, Arrington and Ethridge, JJ., concur.