McCallum v. Gavin , 149 Miss. 885 ( 1928 )

^* Corpus Juris-Cyc. References: Forcible Entry and Detainer, 26CJ, p. 812, n. 52; p. 859, n. 51. John Gavin, appellee, brought a suit for unlawful entry and detainer against the appellants for the possession, use, and occupation of certain described lands in the suit, in which suit it is contended that there was a contract for the rental of the said premises, and that same would expire on January 1, 1926. The suit was brought within one year after said date.

The appellants contend that Gavin, plaintiff in the court below, had no right to the possession of the land; and, if so, his right did not accrue within one year prior to the bringing of the suit. They also contended that the court erred in admitting testimony as to the title deed of Gavin and in admitting certain instructions given for him. All questions were disputed issues so far as the right of possession was concerned, and as to whether or not a contract existed between the appellee and the appellants. These disputed facts were submitted to the jury under proper instructions, and the jury found in favor of the appellee. Its verdict on these questions is conclusive here.

The appellants complained of the introduction in evidence of deeds showing the title of the plaintiff to the lands, and contended that the action was entirely possessory and that it was error to admit the title deeds in evidence.

Section 3511, Hemingway's 1927 Code (section 5039, Code 1906), reads as follows:

"Any one deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and 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 so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed."

It is true that, under this section, the action is for the possession of the property, and does not adjudicate the title. Often, however, the right and extent of possession is determined by title deeds. This judgment, involving possession alone, does not adjudicate the title in any sense so as to beres adjudicata upon the question of title, but such deeds are often admissible for the purpose of possession. Murf v.Maupin, 113 Miss. 670, 74 So. 614. The judgment of the court below was in accordance with these views, and the judgment is accordingly affirmed.

Affirmed.