Ford v. Wilson , 35 Miss. 490 ( 1858 )

Harms, J.,

delivered the opinion of the court.

This is an action of ejectment, by the defendant in error, John P. Wilson, to recover, as heir-at-law to his father, William Wilson, the tract of land in controversy.

The bill of exceptions, appearing in the record, is singularly inconsistent and repugnant, and, in strictness, perhaps liable to serious objections. No point is, however, made by counsel on this ground, and we, therefore, pass these irregularities, with the single remark, that the indulgence heretofore • extended to them, is of very doubtful propriety; and, in the language of the chief justice, in Haynie v. The State, 32 Miss. R. 404, “ A further departure from the rule of practice laid down by the statute, is not to be tolerated.”

Regarding the bill of exceptions, as a bill taken to the refusal of the court to grant a new trial, on the motion of appellant, for the reason therein stated, that the jury found contrary to law and evidence : We will proceed to examine this ground of error.

The evidence shows, that the tract of land in dispute, was entered, according to the Act of Congress, by John Carson, in the year 1828. The plaintiff then introduced a deed from said Carson and wife, conveying the land in dispute to appellee’s father, William Wilson; and proved that he is the only child and heir-at-law of the said William Wilson, the grantee in the deed, who died in 1844 or 1845; that John Carson, the grantor, settled on the land, in 1828; that in 1832, Carson and Wilson both stated, that Carson had sold the land to William Wilson; and that, soon afterwards, the said William Wilson took possession of said land. The deed from Carson to Wilson, bears date in June, 1832.

The evidence on the trial, as the record shows, strongly tended to prove, that, by a verbal exchange of lands, between the said William Wilson and James Ratcliffe, the land now in dispute went into the possession of the said James Ratcliffe, who owned adjacent lands, and that the said Ratcliffe held possession thereof until his death, in 1836; that the said Ratcliffe’s heirs took possession of the premises, after his death, and held them during the lifetime of the said William Wilson (appellee’s father), who died in 1844 or 1845; that, after the death of the said James Ratcliffe, in 1836, one or more of his heirs cultivated the Ratcliffe place, including the land in controversy, or were in possession of it, for ten or fifteen years. Witness Blalock states, that the land which Wilson was to have received for the locus in quo, is part of the land since sold by the heirs of said James Ratcliffe, to J. N. Ratcliffe, and by him sold to said appellant, Thomas J. Ford.

Said Ford was examined as a witness, who proved his possession of the premises since 1852 or 1853; that he inclosed them, believing he had purchased them from J. N. Ratcliffe (his deed is on the record, bearing date the 16th January, 1852, showing that the land in controversy was not embraced therein). There was no evidence of a deed of conveyance of the locus in quo, by William Wilson, to any one.

J. N. Ratcliffe, after proving the possession of the locus for ten or fifteen years, by the heirs of James Ratcliffe, states that, after-wards, most of the fences being burnt down, the place was not occupied for about six years, from 1846 to 1852 or 1853, until he sold it to Thomas J. Ford, the appellant; that he thought he owned it, and believed he had conveyed it to Ford, by the deed read in evidence. He stated further, that William Wilson never occupied said land, from the time his father, James Ratcliffe, first occupied it, in 1834.

This action was commenced on the 15th day of November, A.D. 1857.

Waiving, then, all other questions, we regard the adverse possession of this defendant, and those under whom he claims, as conclusive, upon the rights of the plaintiff.

In the case of Ellis v. Murray, 28 Miss. R. 129, under the third section of the Act of Limitations, passed in 1844 (Hutch. Code, 829), it was held, that “ actual adverse possession for ten .years, vests a full and complete title to the land in possession; and a party, having had such possession, might sue for the recovery of it, at any time within the period limited in the first section, without further evidence of his title, than that he had had ten years in actual adverse possession; that it was intended to secure a right of property, by the possession of ten years.”

It is insisted, however, that the statutory title, arising from ten years’ actual adverse possession, did not vest in the appellant, in this case, because, notwithstanding the actual adverse possession from 1834 to 1846, in his favor, there was then a period of between six and seven years, after the fence was burned, when no one occupied the premises. Therefore, the resumption of possession, in 1852 or 1853, which, deducted from the whole possession proved, would not leave sufficient time for the operation of either the Act of 1822, or the Act of 1844.

The question of adverse possession,- is one depending on the intention of the possessor, and the knowledge, or the means of knowledge, on the part of the owner of the land; and it is therefore a question of fact to be determined by a jury, as the best means of ascertaining the truth. Angel on Limitations, 477, notes 2 and 3, and numerous cases cited.

It is the occupation, with an intent to claim against the world, which renders the entry and possession adverse. The occupation must be visible and notorious, and not clandestine; so that the owner may be thereby notified to assert his title, — on the failure to do which, the statute interposes its bar, or divests him of title.

A continued residence on the land is not necessary, — it being sufficient that the land has been inclosed, in such manner as to give publicity to the possession. Ib. 482, and cases cited.

Making improvements, or. receiving rents for a considerable length of time, would be sufficient without residence. In the case of a dwelling-house, in a city, the possession of it continues so as to give the possessor the benefit of the Statute of Limitations, although the house may not havé been occupied all the time by himself, or by a succession of tenants under him, without intermission ; and direct proof of occupancy, during the whole period, is not necessary. Ib. 482.

The doctrine of the Supreme Court of the United States is, that to constitute an adverse possession, .there need not be a fence, building, or other improvement made; and that it suffices, for this purpose, that visible and notorious acts of ownership are exercised over the premises in controversy for the time limited by the statute.

That much depends upon the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it.

That it is difficult to lay down any precise rule, in all cases; but that it may be safely said, that when acts of ownership have been done upon land, which from their nature indicate a notorious claim of property in it, and are continued sufficiently long, with the knowledge of an adverse claimant, without interruption or an adverse entry by him, such acts are evidence of an adverse possession, for the consideration of the jury, &c.

That neither actual occupation, cultivation, or residence, are necessary to constitute actual possession, when the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim. Ib. 192, and cases cited.

We think that the possession of the land for about twelve years, in the knowledge of William Wilson (as whose heir appellee seeks to recover), clearing, cultivating, and using it adversely to his rights, notoriously and openly, without any attempt upon his part to assert his title, affords the strongest possible presumption of his intended acquiescence. We think further, that in the absence of all evidence tending to show an abandonment of this notorious adverse possession, enjoyed for so long a period, under the very eyes of the appellee’s father, by the appellants; that the accidental circumstances of the destruction of the fence, by fire, which for a time interrupted the active occupation of the premises, and rendered them unfit for use, is a circumstance of no material moment. And more especially so, as during that very time the possession and supposed ownership of those under whom appellants claim, was so notorious that the administrator on the estate of William Wilson, and the guardian of appellee, negotiated with the party in the adverse possession, for the purchase of this very land ; and supposed, until after the commencement of this action, that they had purchased it.

We regard the evidence as conclusive to establish, under the rules of law to which we have adverted, the actual adverse possession of the premises in dispute, by the appellant and those under whom he claims since the year 1832, a period much longer than that prescribed by either act relied on; and vesting the absolute title in the appellant, under the Act of 1844, and the decision in Ellis v. Murray, 28 Miss. R. 129, already referred to.

With this view of the law, arising upon the facts in the record, we think the verdict of the jury was contrary to the law and evidence, and should have been set aside, and a new trial awarded on the motion therefor, in the court below. ■

Let the judgment be reversed, cause remanded, and a venire de novo awarded.