Summary
stating that when an issue "is not before the Court, . . . any opinion expressed thereon is mere dictum not binding on any one."
Summary of this case from Underwood v. Guam Election Comm'nOpinion
No. 34459.
April 14, 1941. Suggestion of Error Overruled October 13, 1941.
1. ADVERSE POSSESSION.
Adverse possession of part of land under color of title furnished by commissioner's deed would give possessor title to extent of calls of such deed unless there were conflicting superior claims by one who held a superior paper title, but such claims would have to depend upon such assertions of ownership as amounted to an adverse possession of a part of such land by person holding the superior paper title.
2. ADVERSE POSSESSION.
The constructive possession of the whole by adverse possession of a part is superior in him who holds the superior title.
3. ADVERSE POSSESSION.
The inability of person in possession definitely to identify the land occupied did not preclude such person from establishing his claim of adverse possession, since it is the fact of such possession and not the knowledge of its legal description that gives title.
4. ADVERSE POSSESSION.
The alleged uncertainty in mind of person claiming land by adverse possession, whether the land occupied was in one section or another, was immaterial where he was occupying the land under color of a deed which embraced both sections.
5. ADVERSE POSSESSION.
The proceedings by which defendant's predecessor in title sought to re-establish his record title under statute, all existing records having been destroyed by fire, did not affect complainant's outstanding title by adverse possession, especially where he was not made a party to such proceedings, since adverse possession for statutory period is of itself at least "constructive notice" of title which may not be divested by individual action except by transfer from such holder or loss by subsequent and superseding adverse occupancy (Code 1930, sec. 2346).
6. ADVERSE POSSESSION.
Evidence required finding that complainant in ejectment established title by adverse possession to at least a part of land involved, which possession was extended to entire land involved through the color of title furnished by commissioner's deed given to complainant.
ON SUGGESTION OF ERROR. (In Banc. Oct. 13, 1941.) [4 So.2d 217. No. 34459.]1. ADVERSE POSSESSION.
When considering "color of title" as basis of a claim of title to realty by adverse possession, the question is not whether instrument relied on as color operates to convey, and to continue to convey, any actual title, but whether it appears to do so; and when on face of instrument it purports to convey title to the land therein described, it will constitute color of title, although, because of matters de hors the instrument, it conveys no title at all.
2. ADVERSE POSSESSION.
Actual adverse possession, by a colorable grantee, for statutory period of a part of the tract of land, within the descriptions of the instrument which constitutes the color of title, extends the adverse possession and title acquired thereby to entire tract within calls of the color, there being no conflicting actual possession.
3. ADVERSE POSSESSION.
Generally, one cannot successfully claim adverse possession under color of title where he has deprived himself of the color relied upon by conveyance to another or has been deprived of the color of title relied on by judgment or decree or by a sale under execution or under a power of sale given in a mortgage executed by claimant.
4. ADVERSE POSSESSION.
Where complainant in ejectment claiming adverse possession under color of title furnished by commissioner's deed did not own any interest whatever in the land when taxes for which it was sold became a lien thereon, and he had no interest in it when land was sold for taxes, maturity of tax sale, although it operated to wholly divest complainant of any actual paper title, had no effect upon his deed as "color of title."
SMITH, C.J., and McGEHEE, J., dissenting.
APPEAL from the chancery court of Calhoun county, HON. L.A. SMITH, SR., Chancellor.
Patterson Patterson, of Calhoun City, and Creekmore Creekmore, of Jackson, for appellant.
The theory upon which the court entered its decree dismissing the bill on the merits was that adverse possession could not be had unless the person claiming the land knew the legal description of the same. We think the lower court was clearly wrong in its conception of the law.
Evans et al. v. Harrison, 130 Miss. 157, 93 So. 737; Metcalfe v. McCutcheon, 60 Miss. 145; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Crowder v. Neal, 100 Miss. 730, 57 So. 1; Greer v. Pickett, 127 Miss. 739, 90 So. 449; Schuler v. McGee, 127 Miss. 873, 90 So. 713; Daniels v. Jordan, 161 Miss. 78, 134 So. 903.
The proof shows without dispute that complainant for many years more than the statutory ten year period was in the actual physical possession of some five or six acres of the land involved. Claim to land, coupled with actual possession thereof, and the exercise of such acts of ownership, gives title by adverse possession to that portion of the land actually occupied, even though entry be without color of title.
Welborn v. Anderson, 37 Miss. 155; Dedeaux v. Bayou Delise, 112 Miss. 325, 73 So. 53; Delk v. Hubbard, 153 Miss. 869, 121 So. 845.
The commissioner's deed of November, 1890, specifically described the South one-half of Fractional Section 4 which includes the land in question, and complainant entered into possession under that deed. His entry was under color of title and therefore his actual possession of a part of the land was constructive possession of the whole.
Hanna v. Renfro, 32 Miss. 125; Welborn v. Anderson, 37 Miss. 155; Wilson v. Williams, 52 Miss. 487; Green v. Irving, 54 Miss. 450; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703.
The title which so vested in Shepherd was a perfect title of which he could be divested only by conveyance or by adverse possession against him for the statutory period.
Lowi v. David, 134 Miss. 296, 98 So. 684; Scottish Mtg. Co. v. Butler, 99 Miss. 56, 54 So. 666; Ford v. Wilson, 35 Miss. 490.
The assessment of taxes to defendants was valueless as evidence of adverse possession and the payment of taxes, while competent evidence of a claim of ownership, cannot aid a defective possession, and such a claim unaccompanied by possession will avail nothing.
Kennedy v. Sanders, 90 Miss. 524, 43 So. 813; Leavenworth v. Reeves, 106 Miss. 72, 64 So. 660; Moore v. Mill, 117 Miss. 862, 78 So. 774.
W.J. Evans and David Sanderson, both of Calhoun City, and B.C. Adams, of New Orleans, La., for appellees.
It is well established by a long line of authorities that this court will not reverse the Chancellor on his findings of fact unless it is shown that he was manifestly wrong.
Bacot v. Holloway, 104 So. 696, 140 Miss. 120; Langston et al. v. Farmer, 176 Miss. 820, 170 So. 233.
In December, 1922, all of the records of Calhoun County, Mississippi, were destroyed by fire when the courthouse of said county and all public records thereof burned. On December 16, 1924, H.E., or Eugene Robertson, the then owner of the land in controversy, and one of the appellees' predecessors in title, filed his verified petition with the Chancery Court Clerk of Calhoun County, Miss., under and in strict compliance with Chapter 242 of the Laws of 1924, and the required notice under the Statute was given to all persons claiming any interest in the land, or having any recordable instruments to file the same for record or to begin proceedings to perfect the record. The appellant failed to file for record his alleged deed or to begin any proceedings to perfect in the time required by said notice and the law. Whereupon there was a decree entered upon said petition.
Appellant did not file his alleged deed for record until October, 1925, nine months after the time had expired under the procedure had under Chapter 242 of the Laws of 1924. Then certainly, the Federal Land Bank of New Orleans, one of the defendants, and of course its subsequent vendees are innocent and bona fide encumbrancers and purchasers of the land involved in this litigation. As a matter of fact, we do not think the alleged commissioner's deed ever constituted any notice to anybody as the recorded deed set forth in appellant's deraignment of title did not show that it had ever been recorded prior to that time.
It is conceded that the appellees have a complete record title to the land involved and we earnestly contend that they have title by adverse possession, and we construe the opinion of the court as so holding. The available records show that it has been assessed to the appellees exclusively and that they have paid the taxes thereon, and that there is no record or documentary evidence showing that it was ever assessed to appellant, or that he had ever paid any taxes thereon. The evidence also shows that the appellees and their predecessors in title have been mortgaging this land, selling it, and selling the timber from it, and that it was foreclosed under some of the mortgages, and exercised in general such rights of ownership over the land as was permissible under its wild state for a long time more than ten years prior to the time of filing the suit in this cause. We think that the appellees also had title by adverse possession under the authority of McCaughn v. Young, 85 Miss. 277, 37 So. 839.
We do not think the appellant under the facts in this case can claim adverse possession against the tax title of the appellees as the appellant pretends to claim under a commissioner's deed (which in legal effect is a quit-claim deed) dated subsequent to the tax sale under which appellees claim. This is the holding, as we understand it, announced in 2 C.J. 164, Section 301, and the authorities cited thereunder. And this court has held that a tax deed in legal effect is a quit-claim deed from the owners of the land to the purchaser of the tax title. And in the case of Evans et al. v. Shows et al., 177 So. 786, that a vendor making a deed cannot claim by adverse possession in hostility to his own deed unless he brings home to the vendee actual notice of his adverse claim.
Appellant attempts to show that he was in constructive possession of the entire South-half of Fractional Section 4 by virtue of the fact that he went into possession under the commissioner's deed of 1890, as color of title and therefore actually had possession of a part and that actual possession of part of the land gave him constructive possession of all the land. The evidence shows that the appellant was only in the possession of some 2 to 4 acres and that this was located right on the boundary line of the appellant's land and the land in question; and we think that the principle of law announced in the case of Alexander v. Polk, 39 Miss. 737, gives the applicable rule of law, and this case is cited with the approval of the court in the case of Dead River Fishing and Hunting Club v. Stovall, 113 So. 336, and we direct the court's attention to the Stoval case.
On the question of constructive and mixed possession, see a part of the opinion of the court in the case of L., etc., Ry. Co. v. Buford, 19 So. 584; L. N.R.R. Co. v. Land Improvement Co., 33 So. 845; Paepcke et al. v. Kirkman et al., 55 F.2d 814.
E.F. Steiner, T.H. Hedgpeth, and Beverly C. Adams, all of New Orleans, and David Sanderson, of Calhoun City, for appellees, The Federal Land Bank of New Orleans and David Sanderson, Trustee, on suggestion of error.
The court erred in reversing finding of fact by Chancellor.
Conn v. Conn, 184 Miss. 863, 186 So. 646; Evans v. Shows, 180 Miss. 518, 177 So. 786; Ford v. Wilson, 35 Miss. 490; Langston v. Farmer, 176 Miss. 820, 170 So. 233.
The court erred in holding the commissioner's deed to Shepherd to be color of title.
2 C.J.S., Adverse Possession, Sec. 69; Code of 1892, Sec. 3823; Evans v. Shows, 180 Miss. 518, 177 So. 786.
The court erred in extending possession of appellant constructively to all land in litigation because of his possession of two to four acres near southern boundary of tract.
1. No claim of title to whole tract by Shepherd.
Adams v. Guice, 30 Miss. 397; Davis v. Bowman, 55 Miss. 671; Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137.
2. Possession of appellees in title to a part of the 70 acre tract counteracted any constructive possession by appellant of the 20 acres involved in this suit.
Railway Company v. Buford, 73 Miss. 494, 19 So. 584.
3. Character of possession of appellant not sufficient to extend his possession constructively to any part of tract not actually occupied by him.
Alexander v. Polk, 39 Miss. 737; Dead River Fishing and Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660.
Title to property should not have been adjudicated in appellant but should have been remanded for further proceedings, even if holding of court were proper.
Court erred in remanding case only for consideration of such other relief as appellant may have sought.
W.J. Evans, of Calhoun City, for appellee, C.W. Cox, on suggestion of error.
The court erred in holding that the commissioner's deed to the Shepherds, dated Nov. 21, 1890, was color of title.
We think the Chancellor was warranted in finding that they had made no claim under the deed and that they had abandoned all such claim and had been divested of any color of title by virtue of said deed and we think that this contention is thoroughly borne out by the principal announced in 2 C.J. 198, Section 402, under the heading of "Divesture of Color of Title." Certainly this tax sale of 1890 which ripened into title in 1892 under the law then in force divested any color of title under the deed in question out of the appellant to the land involved. The case of Acoff et al. v. Roman, decided by this court in 1935, and reported in 159 So. 555, held among other things the following: "If the tax deed were in all respects a valid tax deed, its operation to divest the title out of appellants and to vest it in appellee would be as effective as a quit-claim deed from appellants to appellees."
And we further insist that the appellant could not claim title by adverse possession against the appellee under the facts in this case, and this assertion is made upon the ruling announced in 2 C.J. at page 164 under Section 301, which read in part as follows: "It has been held that the continued possession of the owner of land after a sale for taxes will not be deemed adverse to the holder of the tax title . . ." and under this text the case of Graham v. Warren, 81 Miss. 330, is cited and in our opinion indirectly supports the text.
Then, as we see it, certainly the appellant could not claim under the deed in question as color of title, when he had made virtually a quit-claim deed to the land in question.
If our contention that the appellant was not now or could not claim under the deed of Nov. 21, 1890, as color of title is correct, then certainly the appellant's possession could not be extended to any land except the 3 or 4 acres actually occupied by him and the mere fact of the appellant being in possession of the Northeast quarter of Section 1 to which he had a good title will not give him constructive possession of the other land contained in the same deed to which he had no title. This principal of law is announced in the case of Mitchell v. Bond, 84 Miss. 72, 36 So. 148, and in Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Alexander v. Polk, 39 Miss. 377. Patterson Patterson, of Calhoun City, and Creekmore Creekmore, of Jackson, for appellant, on Suggestion of Error.
The memorandum of the court requested briefs confined to the question: "What effect, if any, does the tax deed to the land in controversy, dated March 3, 1890, and which matured on the first Monday of April, 1891, (Section 531, Code of 1880) have on the appellant's color of title to the land under the commissioner's deed thereto on November 21, 1890?"
The tax deed does not effect appellant's color of title under the Commissioner's deed.
(a) Legal incidents of the tax deed and the Commissioner's deed.
It is the rule in Mississippi that the title of a purchaser of land at a tax sale, the period of redemption having expired, is superior to the title of a bona fide purchaser for value during the period of redemption; the tax title relating back to the date of the tax sale.
Wood v. Morath et al., 128 Miss. 47; Russell Investment Corp. v. Russell, 182 Miss. 385; Acoff v. Roman, 172 Miss. 141.
Applying these principles to the facts in the case at bar and assuming that the tax sale and the tax deed were in all respects legal and valid, then it necessarily follows that the title of appellees is the superior legal title; that the tax sale divested the Hervey estate of its entire title to the property in question, takes precedence over and is superior to the title acquired by appellant at the commissioner's sale, which title, although legal and valid at that time, was defeasible and, in fact, was extinguished upon the expiration of the period of redemption.
(b) Divesting of legal title of the Hervey estate cannot divest appellants of their color of title.
The argument of appellees advanced in their suggestions of error is that since the Hervey estate was divested of legal title by the tax sale, the appellant being in privity of estate, is likewise divested not only of legal title but also of his color of title under the commissioner's deed. In support of this argument there is cited 2 C.J. 198.
We have no quarrel with the rule thus announced, but it is entirely foreign to the question at issue. Where one has the legal and superior title to property he may divest himself of that title by his voluntary act, or he may be divested thereof by operation of law. So likewise, where one has not the legal title, but has color of title, he, too, may divest himself of, or may be divested of, that color of title in the same manner. In each case the legal principles are the same and are grounded on estoppel. Thus where one conveys property by deed he is ordinarily estopped to deny his deed, and if he remains in possession it is not adverse.
Evans v. Shows, 180 Miss. 518.
Where property is sold under a mortgage executed by the owner, or under execution issued on a judgment obtained against the owner, and thereafter he continues in possession, ordinarily he will be considered as holding permissively or at sufferance, and not adversely.
But the principle thus announced in the quoted text is applicable only where those voluntary acts are done, or those things are permitted to be done by the claimant to the land in controversy, and which acts when so done or permitted to be done operate to divest the claimant of his color of title. The text does not suggest that such acts on the part of some predecessor in title of the claimant would divest claimant of the color of title which he had; and we have examined all of the cases cited as supporting the text and none of them so hold. It seems quite clear that such is not, and could not be true because the adoption of such a rule would completely destroy the distinction between title and color of title. We think appellees have confused "title" with "color of title."
What is color of title? See Nash v. Fletcher, 44 Miss. 617; 2 C.J.S. 582, Para. 64; Hanna v. Renfro, 32 Miss. 125; 2 C.J., Section 351, p. 184.
In the instant case the commissioner's deed conferred upon the appellant a legal, but defeasible, title to the land in controversy, and in reliance thereon appellant forthwith went into possession of the same. Can it be said that since another had the superior title, he did not thereafter hold under color of title, whereas he would so hold if the commissioner's deed had conferred no title upon him whatsoever, either by reason of title never having been in the Hervey estate or by reason of the lands having previously been conveyed by Hervey to someone else? Or may it be said that appellant is in a less favorable position to claim under color of title than were grantees going into possession of property under void or defective instruments, but nevertheless held by our court to constitute color of title, viz, a deed from one having no title, Hanna v. Renfro, 32 Miss. 125; a deed void as being in fraud of the grantor's creditors, Harper v. Tapley, 35 Miss. 506; a void administrator's deed, Roote v. McFerrin, 37 Miss. 17; a void deed to a homestead, Avera v. Williams, 81 Miss. 714; Russell v. Hickory, 135 Miss. 184; a void tax deed, Hamner v. Yazoo Lumber Co., 100 Miss. 349.
We have found no case which deals with the precise factual situation here presented. However, we think the applicable principles of law are well settled and we say confidently that no authority supports appellees' argument that acts of claimant's predecessor in title may divest claimant of his color of title.
See Graham v. Warren, 81 Miss. 330.
E.F. Steiner, T.H. Hedgpeth and Beverly C. Adams, all of New Orleans, and David Sanderson, of Calhoun City, for appellees, the Federal Land Bank of New Orleans and David Sanderson, Trustee, in reply.
This brief is submitted in reply to the brief of appellant filed pursuant to the order of this court. In the first place, we agree with appellant that the commissioner's deed did pass a good title to Shepherd, subject only to the tax encumbrance created by the unmatured tax sale to J.K. Hervey, and shall cite authorities supplementing appellant's contention in this connection. Next, it is our contention that if the commissioner's deed passed title to Shepherd, it could never be treated as color of title. Then we shall present authorities establishing, as we believe, that appellant was divested of whatever interest he may have acquired under the commissioner's deed, whether that interest amounted to title or only color of title. We shall then revert to our original point as set forth in our brief on suggestion of error that since there was a divestiture, the commissioner's deed may not be treated as color of title.
Good title passed to appellant under commissioner's deed.
61 C.J. 1291, Sec. 1797; Section 531, Mississippi Code 1880; Murphy v. Seward, 145 Miss. 713, 110 So. 790; Wood v. Morath, 128 Miss. 470, 91 So. 130.
Commissioner's deed to appellant could never constitute color of title, as it conveyed good title.
Barnesville v. Stafford, 161 Ga. 588, 131 S.E. 487, 43 A.L.R. 1045; 2 C.J.S., Adverse Possession, Sec. 64; Crowder v. Doe, 162 Ala. 151, 50 So. 230, 136 Am. St. Rep. 17; 1 R.C.L. 707.
Commissioner's deed completely extinguished by maturity of tax title, irrespective of whether it be treated as title or color of title.
Acoff v. Roman, 172 Miss. 141, 159 So. 555; Barley v. Roosa, 59 Hun. 617, 13 N.Y.S. 209, 35 N.Y.S. 898; 61 C.J. 936; 61 C.J. 1291, Sec. 1297; Hazlip v. Nunnery, 29 So. 821; Russell Investment Corp. v. Russell, 182 Miss. 385, 178 So. 815; 6 Thompson on Real Property, Permanent Edition, Sec. 3044; Wood v. Morath, 128 Miss. 470, 91 So. 130.
Divestment of title prevents use of commissioner's deed by appellant as color of title.
2 C.J.S., Adverse Possession, Sec. 69; Doom v. Taylor, 35 Tex. Civ. App. 251, 59 S.W. 1086; Hackett v. Webster, 97 Md. 404, 55 A. 480; Johnson v. Farlow, 35 N.C. 84; Sholl v. German Coal Company, 139 Ill. 21, 28 N.E. 748; Wilson v. Brown, 134 N.C. 400, 46 S.E. 762.
Suit at law was begun in ejectment by appellant, who, after transfer thereof to the chancery court, filed his bill against C.W. Cox, Eugene Robertson, David Sanderson, trustee, and the Federal Land Bank of New Orleans. Complainant sought possession of twenty acres in the S 1/2 of fractional Section 4, T. 13, Range 2 W., in Calhoun County, Mississippi, the cancellation of certain instruments under which defendants asserted title, and for damages and mesne profits.
A deraignment of the title thereto shows a common source, complainant asserting title under deed of a Commissioner of the chancery court dated November 21, 1890, and the defendant, Cox, under a tax deed dated March 3, 1890. The defendant Robertson was eliminated from the case under his special demurrer. Cox claims ownership under a deed from the Federal Land Bank in 1936. The Land Bank had acquired same through trustee's deed after foreclosure of deed of trust in its favor given by the said Robertson. It seems to be conceded that the paper title to said property is in the defendant, Cox. Complainant rests his claim upon adverse possession.
Fractional section 4 contains about 156.36 acres, and is L-shaped and lies to the north and east of Section 1, T. 24, R. 8 E. The N. 1/2 of Section 4, approximating eighty acres, is known as the Cooner lands and is not involved in the controversy. Nor is any other part of said section except the E. 1/2 of the remainder of the north portion of Section 4 lying north of said Section 1 and south of the Cooner land.
As in all suits of this character, the evidence is extensive, conflicting, and confusing. It appears clear, however, that complainant has exercised such dominion over part of the land in suit as would establish title thereto by adverse possession, and we so hold. It remains to adjust such fact to the legal principles involved. Complainant's adverse possession of part of said land under the color of title furnished by the commissioner's deed in 1890 would give him title to the extent of the calls of said deed (Hanna v. Renfro, 32 Miss. 125; Wilson v. Williams' Heirs, 52 Miss. 487; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Evans v. Shows, 180 Miss. 518, 177 So. 786) unless there are conflicting superior claims by Cox, who holds a superior paper title. Such claims, however, would have to depend upon such assertions of ownership as amounted to an adverse possession by defendant of a part of such lands. The constructive possession of the whole by adverse possession of a part would be superior in him who held the superior title. Railway Co. v. Buford, 73 Miss. 494, 19 So. 584; 2 C.J.S., Adverse Possession, sec. 193, page 798.
The complainant claims under the adverse possession by himself, while the defendant Cox, who bought the land in 1936, bases his claim of adverse possession upon the acts of his predecessors in title. Such acts related almost exclusively to the payment of taxes and to certain transactions by sale and mortgage, common repute, and other evidence circumstantial in its nature. In view of the long, continuous occupancy by complainant under color of title to the entire S.1/2 of fractional Section 4, his claim now to only twenty acres appears conservative. There is some evidence, admittedly vague, by which defendant sought to establish a sufficient occupancy of that part of Section 4 lying east of Section 1 and referred to as the south "leg." But such evidence either proves nothing or develops the fact of a prior agreement between complainant and one Hervey, a predecessor in title, which would excise this "leg" from the case and forbid any adverse occupancy thereof from expanding title constructively to the whole south half of Section 4. The learned Chancellor, in denying relief to complainant, was no doubt influenced by the inability of complainant definitely to identify the land so occupied as being in Section 4. This was not a prerequisite to validity of his claim. It is the fact of such possession, and not the knowledge of its legal description, that gives title. If there were uncertainty in complainant's mind whether the land occupied was in Section 4 or in the N.E.1/2 of Section 1, this would be immaterial since he was occupying the land under color of a deed which embraced both. The evidence, however, shows such occupancy to have been in whole, or at least in greater part, in Section 4. 2 C.J.S., Adverse Possession, Sections 217, 218, page 825.
Since adverse possession for the statutory period is of itself at least constructive notice of title, and since such title may not be divested by individual action except by transfer from such holder or loss by subsequent and superseding adverse occupancy, the proceedings by which defendant's predecessor in title, Robertson, sought to re-establish his record title under Chapter 242, Laws of 1924, Sec. 2346, Code 1930, all existing records having been destroyed by fire, did not affect complainant's outstanding title by adverse possession, especially since he was not made a party to such proceedings.
We hold that the evidence justifies the finding that complainant established title by adverse possession to at least a part of the land in suit, which possession was extended to the entire twenty acres involved through the color of title furnished by his deed.
The decree of the court below is reversed, and title to the land in suit is hereby decreed in the appellant and the cause remanded for the adjudication of such other relief as appellant may be found entitled, in conformity with the prayer of his bill and with the views herein expressed.
Reversed and remanded.
ON SUGGESTION OF ERROR.
The vital point in this case is whether appellant's deed from the commissioner dated November 21, 1890, is available to him as color of title as against the tax deed to Hervey dated March 3, 1890. We are of the opinion that that question should be answered in the affirmative.
When considering color of title the question is not whether the instrument relied on as color operates to convey, and to continue to convey, any actual title but whether it appears to do so; and when on the face of the instrument it purports to convey title to the land therein described, it will constitute color although, because of matters de hors the instrument, it conveys no title at all. And the rule is too well settled in this state to be challenged now, that the actual adverse possession, by the colorable grantee, for the statutory period of a part of the tract of land, within the descriptions of the instrument which constitutes the color, extends the adverse possession and the title acquired thereby to the entire tract within the calls of the color, there being no conflicting actual possession.
But refuge is sought to be taken by appellees within the rule that one cannot successfully claim adverse possession under color of title where he has deprived himself of the color relied upon by conveyance to another or has been deprived of the color of title relied on by judgment or decree or by a sale under execution or under a power of sale given in a mortgage executed by claimant. 2 C.J.S., Adverse Possession, section 69, pp. 585, 586. And appellees say that a tax sale should be considered as within that rule.
We may concede the force of that rule when the party relying on adverse possession has by his voluntary act conveyed the premises to another; for by this he has disclaimed the property and cannot then be in the attitude of claiming on the one hand and disclaiming on the other. And we may further concede that the rule will apply to any sale under a judgment or decree in a proceeding to which the adverse claimant has been a party; and we might go even further and concede that the rule would apply to a tax sale where the adverse claimant owned the land or some interest therein, at the time of the levy of the taxes for which the land was sold or was otherwise under a personal duty or obligation to the state to pay the taxes when the sale was made.
But none of these situations was present in this case. The Shepherds did not own any interest whatever in the land when the taxes for which it was sold became a lien thereon, and they had no interest in it when the land was sold for the taxes. They were under no obligation whatever in respect to the taxes. Everything done about the assessment, and the sale thereunder, was as to the Shepherd res inter alios acta. And while the maturity of the tax sale operated to wholly divest the Shepherds of any actual paper title, it had no effect upon their deed as color of title. They had no part in the tax deed. It was as to them wholly in invitum. They did not thereby disclaim, it was something as to which they had had no voice, and had said nothing; and they were not personally obliged to say or do anything about it. They were in no sort of privity with the tax purchaser; and to say that their commissioner's deed did not operate as color of title in adverse possession would be to say that there can be no such thing as color of title in adverse possession against a tax deed, whoever it is that asserts such adverse possession, and we must hold that such is not the law. We think Graham v. Warren, 81 Miss. 330, 331, 33 So. 71, relied on by both sides in the present case, supports the conclusion at which we have arrived, but we rest our decision not upon that case but upon principle, which we have briefly outlined.
Suggestion of error overruled.
DISSENTING OPINION.
The ground on which the decree of the court below is reversed is that the appellant had been in actual possession of a small portion (four or five acres) of the land in controversy for more than ten years, claiming the whole of it under a color of title thereto. This claimed color of title is the deed of a commissioner appointed for that purpose by the chancery court in a case before it, to which the then owner of the land was a party, executed on November 21, 1890. Prior thereto, on March 3rd of the same year, the land was sold for taxes to Hervey, through whom the appellees claim by mesne conveyances. The chancery court commissioner's deed vested the appellant not with the color of title but with the title to the land subject to be divested by his failure to redeem the land from the tax sale within one year after that sale was made. This time expired in March, 1891, under the statutes then governing, and the land not having been redeemed from the tax sale, Hervey's tax deed thereto became absolute and "its operation to divest the title out of (Shepherd) and to invest it in (Hervey) would be as effective as a quitclaim deed from" Shepherd to Hervey. Acoff v. Roman, 172 Miss. 141, 159 So. 555. In other words, Shepherd's commissioner's deed ceased to be available to him as evidence of either title or color of title to the land. If Shepherd had been claiming the land prior to the sale of taxes under a deed investing him not with the title to the land but only with color thereof, the result would necessarily be the same, for an act which destroys one's right to justify possession of or claim to land under a deed conveying the title thereto to him must necessarily destroy one's lesser right to justify possession of or claim to land under a deed which conveys to him a mere color of title.
Color of title when applied to a written instrument implies that it purports, but fails, to convey title; consequently, an instrument which conveys title cannot be said to be color of title. This is but the statement of a self-evident fact; but if authority be desired therefor, it will be found in 1 Am. Jur. Adverse Possession, section 190; Crowder v. Doe, 162 Ala. 151, 50 So. 233, 136 Am. St. Rep. 16, and City of Barnesville v. Stafford, 161 Ga. 588, 131 S.E. 487, 43 A.L.R. 1045; Hitt v. Carr, 62 Ind. App. 80, 109 N.E. 456. But it is said in effect that since Shepherd was not the owner of the land when it was sold for taxes, he was under no obligation to redeem it from that sale; and when he failed to redeem it therefrom, thereby permitting Hervey's title to become perfect, the effect thereof was simply to transform the deed under which he theretofore held title to the land from a deed conveying title to one merely conveying color of title. In other words, to change the deed from one conveying title to the land described therein to one which purports, but fails, to convey the title thereto — a proposition so novel that it has not heretofore appeared in a decision by any court that has come under my observation. Color of title to land based, as here, on an absolute deed thereto, arises when, but not unless, the deed fails to convey title, 1 Am. Jur., Adverse Possession, sec. 185, and the many authorities there cited, and it arises at the moment the deed is executed, and not thereafter.
Graham v. Warren, 81 Miss. 330, 33 So. 71, relied on by the appellant is no authority for extending by construction his possession of a part of the land here in controversy to the whole of it. Warren was there in possession of the land in controversy under a bond for title thereto at the time of a sale thereof for taxes and continued thereafter in possession of it for more than ten years before an action to dispossess him was begun, and the court held his title to the land by adverse possession to be complete. No question of constructive possession under color of title there arose. Possession of land to be adverse to the owner must be by one "claiming to be the owner" thereof. The only evidence by which Warren claimed to be the owner of the land was his bond for title thereto, which the court held was sufficient evidence of such a claim by him, and, in the absence of evidence to the contrary, he would be presumed to be holding the land adversely to the purchaser at the tax sale. This holding applies here not to the appellant's claim of constructive possession of more land than that of which he was in the actual possession but only to the vesting of title in him by adverse possession of the land of which he was in actual possession. This fact, however, cannot avail the appellant anything here, because the evidence does not disclose any sort of description of the four or five acres of land of which he was in possession that would enable the court to describe it and cancel the appellees' claim thereto.
The suggestion of error should be sustained, and the decree of the court below affirmed.
I am requested by McGehee, J., to say that he concurs in this dissent.