Broome v. Jackson , 193 Miss. 66 ( 1942 )

DISSENTING OPINION. The named defendants to the appellee's bill of complaint are Mrs. J.W. Broome and Enoch Jackson, the appellee's former husband, who is alleged to be a nonresident of the state, whose post office address is unknown and for whom publication was made. Mrs. Broome appeared and demurred to the bill of complaint. Enoch Jackson did not appear and as to him no disposition of the case has been made. The demurrer to this bill of complaint should have been sustained for the reason that the appellee's deraignment of title to the land does not disclose that she is the owner thereof. The bill does not disclose that the Government has parted with its title to the land, but that aside, it does disclose that the appellant is and has been in possession of the property since some time in 1935 under a deed thereto from L.H. Greaves executed in December, 1934, and that Greaves claimed by mesne conveyances from Dave Banks under a deed executed by him February 1, 1933. The bill then discloses that W.J. Griffin conveyed the land to Enoch Jackson on February 13, 1903, and that on the same day he also conveyed it to Alice Jackson. The bill then alleges that Mary Jackson, the appellee, and the defendant Enoch Jackson were married in September, 1900, and they lived together as man and wife until some time in October, 1920, presumably, though it is not expressly alleged, on the land in controversy, when Enoch Jackson deserted her, and that thereafter she continued in possession of the land until February 23, 1935, when she was forcibly driven from it by persons to her unknown and that the appellant Broome "took possession of the place in 1935 after the complainant had been forced to leave the place." In passing, I will say that the bill does not allege that "Mrs. Broome forced her (the appellee) out of possession and began to claim title," but only as I have hereinbefore set forth. The bill further alleges that Mary Jackson obtained a divorce from Enoch Jackson on June 4, 1926. It discloses that the title to this land is in the defendant Enoch Jackson, the appellee's husband, unless his title thereto has been divested by adverse possession thereof by the appellee. It does not disclose that the appellee's possession of the land prior to her divorce from her huband was adverse to him.

"Where parties, one of whom is claimed to have possessed adversely to another, are husband and wife, a degree of proof of adverse possession more strict than usual is required. Until some reason exists for the assertion of a title by the husband or wife, one against the other, the presumption will conclusively obtain that the possession of each is through, and on account of, the family relation, and not under a claim of ownership adverse to the title under which possession was taken, in whichever of the parties that title may be." 30 C.J. 579. It was Enoch Jackson's marital duty to provide the appellee with a home as long as she remained his wife, and when he permitted her to remain on the land in his absence therefrom, the presumption is that he did so in fulfillment of this duty to her and nothing in the bill of complaint indicates the contrary. Cf. Lincoln v. Mills, 191 Miss. 512, 2 So. 2d 809, 3 So. 2d 835. Enoch was relieved from this duty by the divorce granted the appellee on June 4, 1926, from which time I will assume that the allegations of the bill disclose that the appellee held the land adversely to Enoch. That possession however continued only to February 23, 1935, a period of time less than ten years, unless that period is extended by reason of the fact that on February 23, 1935, she was forcibly driven from and caused to abandon the land by unknown persons. "Abandonment of the land before perfection of title interrupts adverse possession . . . although it was involuntary." 2 C.J.S., Adverse Possession, sec. 146. After the appellee abandoned the land, she asserted no further claim thereto until the filing of this bill of complaint more than six years thereafter. Had she instituted legal proceedings to regain possession of the land within a reasonable time after she was driven therefrom, a different question would be presented.