Page v. O'Neal, 42 So. 2d 391 (Miss. 1949). · Go Syfert
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Page v. O'Neal, 42 So. 2d 391 (Miss. 1949). Cases Citing This Book View Copy Cite
22 citation events across 2 distinct courts.
Strongest positive: Simmons v. Cleveland (missctapp, 1999-07-27)
Treatment trajectory · 1951 → 2026 · click a year to view as-of
1951 1988 2026
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Cited as authority (rule) Simmons v. Cleveland
Miss. Ct. App. · 1999 · confidence medium
Having no valid claim to any part of the Cleveland property under color of title, Simmons's "title by adverse possession, if any, runs only to such part of the land as was actually held by [her] in possession or enclosed or otherwise actually and continuously occupied by [her] for the statutory period of ten years." Page v. O'Neal, 207 Miss. 350, 355 , 42 So.2d 391, 392 (1949).
discussed Cited as authority (rule) Berry v. Houston
Miss. · 1967 · confidence medium
Here, there was a total failure of such proof and there is nothing in this record upon which the court below could locate the areas and describe them in its decree, even if the proof of adverse possession had been otherwise sufficient." 207 Miss. at 355, 356 , 42 So.2d at 392 .
examined Cited "see" Robinson v. Humble Oil & Refining Co. (4×)
Miss. · 1965 · signal: see · confidence high
See Page v. O'Neal, 207 Miss. 350 , 42 So.2d 391 (1949); Bullock v. Greer, 181 Miss. 190 , 179 So. 264 (1938); and Evans v. Shows, 180 Miss. 518 , 177 So. 786 (1938).
Retrieving the full opinion text from the archive…
Page
v.
O'Neal
Mississippi Supreme Court.
Oct 24, 1949.
42 So. 2d 391
1949 Miss. LEXIS 347
Wm. Estopinal, for appellant. Appellant cultivated a part of said lands, fenced all of it at first for several years after his entry thereon. Grew a garden thereon, built several houses on it, watched and supervised all of the 40 acres, grew a fine crop of pine trees on all of it, kept trespassers and others off of said 40 acres, kept trees from injury by fires and in every respect treated the entire 40 acres in the same manner, and watched and preserved everything on said 40 acres the same as any other owner of similar lands would do. Is not that sufficient in the law for appellant to have acquired title by adverse possession in the entire 40 acre tract? In Kirkson v. Mays, 12 So. 443, (Miss.), it was held that evidence that one in possession of lands has cut timber on all the land in question, cleared the grounds, fenced fields thereon, cultivated the soil, built houses on it, and gathered crops for more than 10 years is sufficient to bar recovery by one to whom said lands formerly belonged. In Davis v. Davis, 68 Miss. 478 , 10 So. 70, it is held that adverse possession under a parol gift of lands extends to the whole tract given, although only a part is actually occupied. In Gillespie v. McGruder, 92 Miss. 511 , 46 So. 77, it is stated, that in boundary line dispute defendants' claim of adverse possession beyond line of her original tract should not be ignored. In Snowden v. McSweeny (Miss.), 16 So.2d 25, it was held that our statute on adverse possession does not require an inclosure as an essential to adverse possession. And that our reported court decisions do not require inclosure is definitely determined and disclosed in case of Sproule v. Alabama R.R. Co., 78 Miss. 88 , 29 So. 163. Buntin McIntosh, for appellee. The only point involved is whether or not appellant has made sufficient proof of adverse possession without color of title for the ten year period to divest appellee of title and when appellee and his predecessors in title have continuously paid taxes since the land was acquired from the State of Mississippi, on November 29th, 1935, and have a continuous unbroken chain of title since land was acquired from the State of Mississippi. Appellant made no claim of any color of title under written instrument but gave as his only reason for going upon the land and taking possession the fact that his father John Page gave him the land. John Page had no color of title to the land and as a matter of fact, was a tenant, under a written instrument from the predecessors in title of appellee. The case of Brooks-Scanlon Company v. Childs, 74 Miss. 147 , in no uncertain terms definitely determines so far as the courts of Mississippi are concerned, that no parol vendee could claim color of title against anyone other than his vendor or those claiming under him. Appellant having no color of title, oral or otherwise, must conclusively meet the proof required as set out in Brooks-Scanlon Company v. Childs, which also very definitely held that one being in possession of a small tract of land of only fifteen or twenty acres could not be allowed to say \I am claiming one hundred sixty or six hundred forty acres\".
Montgomery.
[*354] Montgomery, J.

Appellant brought this suit in the Chancery Court of Harrison County to confirm his title to a forty-acre tract of land. The holder of the record title to the lands, one Cyrus P. Dorward, was made defendant. Pending trial Dorward deeded the forty to S. E. O’Neal and, by agreement, O’Neal was substituted as defendant.

The original bill claims title by adverse possession under a parol gift from John Page for a period of more than ten years, under the provisions of Section 711 of the 1942 Code. The appellee answered, denying ownership of the land by appellant, denying the adverse possession, and asserting record title in himself. Appellee made his answer in a cross-bill, praying for the cancellation of appellant’s claim as a cloud on his title. The court below, on the pleadings and the evidence, held that appellant had failed to prove his claim of adverse possession, dismissed the original bill, and, sustaining the prayer of the cross-bill, cancelled appellant’s claim as a cloud on appellee’s title. Prom that decree the cause comes here on appeal by the appellant, Clarence Page.

There was a sharp conflict in the testimony as to when the appellant began to occupy the land adversely, whether his occupancy was continuous, and as to whether it was of such nature as required by the statute. The[*355] chancellor was justified by the proof in holding that appellant had not met the burden and proven his case by a preponderance of the evidence, and, even if there were no other deficiency in appellant’s proof, we could not say the chancellor was manifestly wrong, as we must do, in order to reverse.

Bnt there is another and controlling deficiency in appellant’s proof. Appellant went into possession of the land under a parol gift from his father, who had no title to the lands by record or otherwise. He is here undertaking to assert title by adverse possession against the owner of the record title. Color of title, coupled with actual possession of a part of the land, constitutes constructive possession of the whole, and the adverse possession runs to the whole tract. Evans et al. v. Shows et al., 180 Miss. 518, 177 So. 786. Appellant, however, has no color of title, and his title by adverse possession, if any, runs only to such part of the land as was actually held by him in possession or enclosed or otherwise actually and continuously occupied by him for the statutory period of ten years. Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147, 2 A.L.R. 1453; Dedeaux et al. v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53; Kersh et al. v. Lyons, 195 Miss. 598, 15 So. (2d) 768; Delk v. Hubbard, 153 Miss. 869, 121 So. 845.

The proof for appellant shows that he moved on the land in the latter part of 1935, constructed a one-room house thereon in which he lived until 1940 when he added three rooms, and that he has resided on the land continuously since 1935. He says he had a garden and a potato patch and at one time had about two acres fenced in near his house, but that he did not keep up the fence and the only remnants remaining are pieces of barbed Avire here and there. Appellant offered no proof as to where the house, the garden, the potato patch, or the two-acre tract is located on the forty, and there is in this record no means by which they or any of them, can be identified[*356] and located on the tract. The remainder of the tract is second growth timber, which he says he guarded against fire and trespassers, and these are the only acts of ownership asserted by him over the timber land, except to keep off hunters. He paid no taxes on the land. It was assessed to the record owner .who paid the taxes.

The burden of proof was on appellant to establish by competent evidence, in the lower court; what particular area was so used, cultivated, fenced, or actually occupied by him and where such areas were located on the tract, and to do this in such a way as to enable the court to determine its location and in its decree establish the area to which title has ripened by adverse possession. Evans et al. v. Shows et al., 180 Miss. 518, 177 So. 786. Here, there was a total failure of such proof and there is nothing in this record upon which the court below could locate the areas and describe them in its decree, even if the proof of adverse possession had been otherwise sufficient.

The decree of the lower court is affirmed.

Affirmed.