
    Pigott v. Pigott et al.
    [73 South. 800,
    Division A.]
    1. Estoppel. By pleading. Nature of title asserted.
    
    Where a complainant alleged in a bill not sworn • to that he claimed land under a gift from his father, and claimed title exclusive of every one else except his co-plaintiffs, he was not estopped in another suit for the land to dispute that he was a tenant in common with his brother and ¡lister, who were not co-plaintiffs in the first suit. i
    2. Evidence. Pleadings. Unsworn pleadings as evidence.
    
    Admissions and declarations of facts contained in unsworn pleadings are not admissible as evidence against the party pleading, nor is he estopped'by an expression of opinion therein as to his legal rights and liabilities. •
    3. Pleadings. Admissions. Effect.
    
    Where one claiming land adversely was joined as a plaintiff in a bill by the true owner of the land, but in fact had nothing to do with the suit, and did not read the bill, or authorize the other party’s attorney to make claim by the bill, except by adverse possession, he was in no way bound by allegations of the bill to a different effect.
    
      Appeal from the chancery court of Marion county.
    HoN. E. E. Sheei-iy, Chancellor.
    Suit by T. A. Pigott and others against W. A. Pigott. From .a decree for complainants, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      Mounger & Ford and Lamar Hemmgton, for appellant.
    
      Dale & Bawls and Hall & Ilall, for appellees.
   Sykes, J.,

delivered the opinion of the court.

The appellees filed a hill in the chancery court of Marion county, claiming title to an undivided eight-ninths interest in certain lands in possession of appellant, and praying that the claim- of appellant to this entire tract of land be canceled as to the above interest, and that they, together with appellant, be. declared to be' tenants in common of this land. The answer denied all interest of appellees in the land, and denied that the relation of tenants in common ever existed between appellant and appellees as to this land. On final hearing on bill, answer, and proof, a decree was rendered in favor of the appellees, from which decree this appeal is prosecuted.

The material facts in the controversy are as follows, viz: The land in controversy belonged to the state of Mississippi until 'the year 1883. However, in 1875 and 1877 John Pigott, the father of all the parties to this litigation, purchased the same at a tax collector’s sale for unpaid taxes. The land at that time was not subject to taxation; consequently both sales were absolutely void. The wife of John Pigott (Lucy Pigott) owned contiguous lands to those in controversy. Through mistake, John Pigott, acting for his wife, fenced in at different points some small tracts, consisting of a few acres, of the land in controversy ■with hers,, and put the same in cultivation. John-Pigott at various times cut cordwood and hoard trees, and also some trees for making fence rails, off this land. The testimony also shows That he cut trees for the same purposes off of other lands, which belonged either .to the state or to nonresident owners. There was. some proof, also, which is very vague and indefinite, that John Pigott had once claimed, to own all the lands in controversy. The testimony of the same witness, however, is to the effect that at the same time John Pigott made a statement in which he said some Northern people were also claiming to own the land. John Pigott never paid any taxes on the land during his lifetime. He died in 1891. At that time he actually owned forty acres of land, and his wife, Lucy Pigott, who survived him, was the owner of about two hundred and forty acres. They had eight children. The testimony shows that, as each son became of age, John Pigott gave him one hundred and sixty acres of land. Before his death he had thus provided for all of his sons, except the youngest, Theodore. He left no will, hut before his death he administered upon his own estate, and also that of his wife, and explained to all his' children that he had provided for all of the hoys except Theodore, and that at his (John Pigott’s) death his wife and children must deed to Theodore the home place, consisting of the two hundred and forty acres. Theodore was to live at the home place and take care of his mother until her death. No provision was made at that time for. a division of the personal property. At the time of his death the testimony shows that he was making no claim of ownership of the land here in controversy. Neither did he in any way attempt to divide this along with- the other real estate. The testimony of his wife, who seems to know more about it than any one else, was to the effect that he had long since abandoned any claim whatever to this land. At the time of Ms death none of his children knew anything about his claim to this land, neither did they make any claim to it. Theodore lived with his mother until 1893, at which time, after a family conference, it was decided that he should take the land belonging to W. A. Pigott,- the appellant in this case, and that "W. A. Pigott take that meant for Theodore. This intention was executed by the appellant’s deeding to Theodore his one hundred and sixty acres of land, and by the other children and the mother all deeding tó the appellant the land intended for Theodore. The appellant then went into possession of the land deeded to him, and shortly - thereafter he began to attempt to exercise certain acts of ownership over the land in controversy. • •

In -1883 the state by patent sold these lands; and in 1907 the record title to same was held by some parties by the name of Cheeseboro. At this time these people began to investigate their ownership of the land, and found the appellant claiming to be the owner of it. The only testimony in the record about this claim of ownership is that of the appellant himself. He testified that he told the agent of the Cheeseboros that he claimed the land, because he had been in the adverse possession of same since 1893, or a period of fourteen years. A compromise was then entered into between the appellant and the Cheeseboros, a part of which was the filing of a friendly suit in chancery, in which the appellant and the Cheeseboros were complainants, and unknown claimants of the land were made defendants. This bill was not signed by the appellant. There was an allegation in the bill that John Pigott went into possession of the land, and occupied it for about fifteen years before his death, and that the appellant, W. A. Pigott, under gift of his father, continued in possession of "the • land until the filing of the bill, claiming it adversely and exclusively and against all persons. In the compromise with tbe Cbeeseboros tbe appellant deeded them tbe timber on certain lands, and tbey in turn deeded all of tbe land to bim. It is claimed by tbe appellees that m making tbis compromise settlement with tbe Cheese-bors, wbo were nonresidents, W. A. Piggott used as an asset tbe void tax deeds to bis father, and also claimed that bis father bad bad possession of tbe land; that without tbis claim through bis father be could not have made bis settlement, and that tbis claim could only have been made as a tenant in common of tbe appellees, and that a constructive trust resulted therefrom, and that tbe settlement or compromise made by bim was in law made for himself and these appellees as bis tenants in common. From 1883 until 1907 the taxes on these lands were paid by tbe Cbeeseboros and their immediate and remote vendors. After tbe compromise in 1907, and until tbe filing of tbis suit, tbe taxes on these lands were paid by tbe appellant. Tbe appellant has also made valuable improvements on tbe lands in controversy. Tbe uncontradicted testimony of tbe appellant is that be never read tbe bill filed in tbe above-mentioned suit until tbe present suit was brought; that be did not authorize tbe attorney of tbe Cbeeseboros, wbo really filed the bill, to state in said bill that be made any claim to tbe land by virtue of any tax deeds, or claimed it in any way through bis father; but, on tbe contrary, that be claimed on account of bis adverse possession of same.

Tbe appellee claims that tbe appellant in this case is bound by tbe allegations in tbe bill, filed by bim and tbe Cbeeseboros, and that by tbe allegations in that bill be and these appellees are tenants in common. The appellees are mistaken in both of these contentions. Under the allegations of that bill, tbe appellant claimed under gift from bis father, and claimed title exclusive of every one else except tbe Cbeeseboros. He is in no way bound by those allegations, and no estoppel, whatever arises therefrom. Crump v. Gerock, 40 Miss. 765; Co-operative Loan association v. Leflore, 53 Miss. 1; Meyer v. Blakemore, 54 Miss. 570. The testimony in this case really shows that the Cheeseboros were the owners of the land at the time they made the compromise which vested the title in this appellant. In 1893, when the appellant took possession of the land deeded to him, the testimony in the case conclusively shows that all of the land owned both by the father and the mother of the parties litigant in this case had been divided. The testimony further shows that all claim to the land in controversy by either John Pigott or any of his family had long since been abandoned. There were no such acts of ownership over exercised over this land by John Pigott as would have ripened into a good title by adverse. possession. McCaughn v. Young, 85 Miss. 277, 37 So. 839; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660.

The decree of the lower court is therefore reversed, and the bill dismissed.

Reversed and dismissed.  