
    Thomas P. McMahon v. Yazoo Delta Lumber Company.
    [43 South., 957; 46 South., 57.]
    1. Statute op Limitations. Code 1892, § 2730. Adverse possession.
    
    The facts relied upon to establish a defense predicated of adverse possession of land must be as distinct as the character of the land reasonably admits of, and must be exercised with sufficient continuity to acquaint the owner, should he visit the land, that a claim of ownership adverse to his title is being asserted.
    2. Equity. Quieting titles to land. Taxation. Taxes paid. Code 1880,. § 536. Accounting. What claims for taxes allowable, what not. Rents.
    
    Upon rendering a decree in complainant’s favor quieting his title-to lands and cancelling defendant’s claims under tax titles:
    (a) It was proper to allow defendant the sum paid by him as purchaser at a tax collector’s sale, with twenty-five per centum damages and ten per centum per annum interest thereon, the land being taxable at the time of the sale, as provided Code 1880, § 536, making the purchase money with such damages and interest a lien on the land; but
    (B) On land not taxable at the time of a pretended sale to the state, it was proper to disallow defendant money paid the state to redeem therefrom, and allow him only the amount of taxes paid on the land after it became taxable with six per centum interest per annum thereon; and
    (c) It was improper not to divide equally between the parties the costs and expenses of an accounting, there being charges against both; and
    ,(d) It was improper to disallow complainant a well proved claim for the rent of a part of the land.
    From the chancery court of Sunflower county.
    Hon. Perot Bell, Chancellor.
    The Yazoo Delta Lumber Company, appellee, was complainant in the court below; McMahon, appellant, was defendant there. The court below rendered a-final decree in complainant’s favor, from which the first appeal in the case was prose-muted to the supreme court, without waiting for the accounting. This appeal is covered by the first opinion of the court, post page 462.
    The object of the suit was to remove clouds from the title to land, to obtain possession of the land and for the recovery of rents. The defendant claimed a part of the land under a tax sale based on an assessment made under Laws 1888, p. 24, commonly known as the Madison Act, heretofore decided to be unconstitutional, Mangumv. Iiawlcins, 78 Miss., 97, 28 South., 872, and defended on the three years’ statute of limitations applicable to tax titles and also on the general ten year statute of limitations.
    The decree of the chancery court having been affirmed, on first opinion, the cause was remanded that the accounting might be had. After the remand of the case to the chancery ■court steps were taken to perfect the accounting and the master reported that defendant owed complainant rent for the three years 1905, 1906, and 1907, amounting to $1,500, but declined to allow rent for tbe previous years; that defendant also owed complainant for 4,500 feet of gum lumber, worth $378, making a total due complainant, $1,878. Tbe master also, reported that defendant bad made improvements upon tbe lands in controversy amounting to $1,847.50, and bad paid taxes amounting to $266.15; interest at 6 per cent, on tbe amount paid for taxes, $122.05; clearing 133 acres of land, $1,995 — making a total due defendant of $4,230.70, thus leaving a balance due tbe defendant of $2,352.70. Tbe master omitted to credit defendant with tbe amount of taxes paid for lo’t 5. in tbe purchase from tbe auditor March 10, 1890, amounting to $31.50, and also omitted tbe amount paid as taxes at tbe sheriff’s sale of lots 4, 10, and 11, March 7, 1892, amounting to $9.25— these amounts being omitted by instruction of tbe court -because not liens on tbe lands in controversy. Tbe defendant excepted to tbe master’s report for tbe following reasons: Because tbe master did not allow defendant tbe amount of taxes paid by him in redeeming lot 5 and purchasing at tbe sheriff’s sale lots 4, 10, and 11, and for allowing only six per centum interest on taxes, instead of ten per centum, and for only allowing $15 per acre clearing tbe land, instead of $35 per acre, as claimed by defendant. Tbe complainant excepted to tbe report, because it fails to allow rent for tbe year 1904,-and because it does not show tbe value of tbe 50,000 feet of oak timber consumed Toy defendant, and in allowing taxes for more than six years next, before tbe filing of tbe bill of complaint, and excepted to tbe values placed upon tbe improvements as being larger than tbe proof warranted. Tbe court disallowed all exceptions and confirmed tbe finding of tbe master and tbe defendant appealed to tbe supreme court, tbe complainant prosecuting a cross-appeal.
    
      William, Griffin, Mayes & Longstreel and Baker & Moody, for appellant.
    
      
      Johnson & Neill, Alexander & Alexander and T. O. Kimbrough, for appellee.
    Argued orally by Edward Mayes, for appellant and by G. H. Alexander and T. G. Kimbrough, for appellee.
   OPINION ON EIRST APPEAL.

Whiteield, O. J.,

delivered tbe opinion of tbe court.

Tbe opinion of tbis court in tbe case of Kennedy v. Saunders, 90 Miss., 524, s. c., 43 South., 913, is decisive of tbe controversy before us in tbe case at bar. We refer to tbe reasoning in that opinion as conclusive of all tbe legal questions presented by tbis case.

Tbe only question calling for any serious consideration in tbis cause is whether such adverse possession of lot No. 4 is shown as meets-tbe requirements of tbe ten-year statute. Tbe only two witnesses introduced on tbis subject who have any personal knowledge of it at all are J. H. Jones and J. W. Byrd. Tbe testimony of Bowen shows that bis only knowledge on tbe subject was obtained by hearsay. Tbe testimony of Jones is that be, some time (to tbe best of bis memory) in 1894, got a. contract for tbe sale of tbis lot from Burroughs, which be afterwards transferred to one Furr; that in 1894 be thinks it was, be cleared most óf lot 4 and put it in cultivation. He admits that bis memory was very poor, especially as to dates, and that be bad not seen tbe contract, that showed tbe date when be took possession, as be said, of lot 4, for about four years. That be is clearly wrong about putting tbe most of lot 4 in cultivation is demonstrated by tbe fact that tbe lot contained thirty-three acres, and it is plainly shown that no more than six or eight acres were ever deadened or cultivated by anybody until 1898 and thereafter. Tbis same witness admits, later on in bis testimony, that Furr never cultivated but about eight acres, which, be says in another place, was more than be bad cultivated. He built no house on it, but claimed that he fenced it. The claim that he fenced it is afterwards shown to have been a mistake by the testimony of Byrd. The only fence, apparently ever put around it, was a one-wire fence, which Gorman, who owned the lot just north of lot 4 ran down in a Y-shape to include four or five acres of lot 4, supposing it doubtless, to be part of his land. The testimony of Jones further shows that the deadening which he did was wholly irregular, sometimes a month apart, and that he never lived on the land at any time, and that the only thing which led him to believe that the date of his entry must have .been 1894 was his recollection that that was the date of the contract, which he had not seen within four vears before the taking of his testimony. It may be said generally/as to the testimony of Jones, that it is entirely too vague, uncertain, and unsatisfactory to uphold ádverse possession. The testimony of the other witness, introduced also by the appellant, J. W. Byrd, is very satisfactory and very clear. It shows, beyond any controversy, that Jones was mistaken as to when he entered and as to what he did. Byrd shows in various parts of his testimony as follows: That he took possession •of these lots in February, 1903, and that at that time there were only five acres of lot 4 in cultivation, and they not thoroughly, but partially cultivated; that lot 4 appeared to have been cultivated about two years before that — that is to say, the land had just been broken up and looked like it had been in cultivation about two years; and that it looked like it had been cleared up about two years, judging from the appearance of it. This would show that the clearing of the laud had occurred about 1900; but this is not all. Byrd further testifies that, when he went there in 1903, there was no house on lot No. 4; that there were only five acres of it that had ever been cleared or cultivated at all; and that those five acres looked like they had been recently cleared, and the land was in a rough state of cultivation. He further says, in answer to a question whether he found any fence on lot 4 in 1903, as follows: “I found a little wire, about one row of wire, on lot 4; just tbe five acres circled around joined to tbe field of Gorman. Gorman’s field embraced tbe land north of lot 4. He had tbe land north of lot 4. Tbis little corner of tbe northeast corner of lot 4 was in cultivation. It was fenced in with tbe land north of tbe field I understood belonged to Gorman. Gorman’s field might have bad 100 acres or more in it. Tbe fence that ran into lot 4 was in a V-shape, and took in tbe northeast corner of lot 4, and tbis is all that there was of lot 4 that was under fence or cultivated.?’ Tbis clears up tbe matter significantly.. Gorman, evidently supposing tbis little V-shaped tract of four or five acres to be part of bis one hundred acres, bad run bis fence around it and cleared it up.

There is no reconciling tbe testimony of Byrd and Jones. Tbe chancellor bád tbe witnesses before him, saw their manner on tbe stand, and manifestly accepted Byrd’s statement as clear and satisfactory, rejecting Jones’ testimony as too vague and uncertain as to its statements as. to possession. Gorman’s fence was shown by Byrd’s testimony to have been moved back later about a rod to conform to tbe true boundary, and Gorman bad only been cultivating tbis strip of four or five acres some two or three years, as Byrd says, and, of course, claiming it as bis own. Binding out bis mistake, be moved bis fence to run according to bis own boundary. There is absolutely nothing in tbis testimony to make out any adverse possession of lot 4, within tbe meaning of tbe law of adverse possession. Tbe facts of tbis case fall far short of tbe facts in tbe case of McCaughn v. Young, 85 Miss., 277, 37 South., 839, and.tbe expression in Jones v. Rogers, 85 Miss., 802, 38 South., 742, relied on, has been overruled in Kennedy v. Saunders, supra, tbe true doctrine is announced in 1 Cyc., p. 984, as follows: “Tbe only rule of general applicability is that tbe facts relied upon to establish adverse possession must always be as distinct as tbe character of tbe land reasonably admits of, and must be exercised with sufficient continuity to acquaint tbe owner, should he visit the land, with the fact that a claim of ownership adverse to his title' is being asserted. Trivial and disconnected facts, doubtful and equivocal in their character and which do not clearly indicate the intention with which they are performed, cannot be regarded as amounting to possession; otherwise, a man might be disseised without his knowledge* and the statutes of limitation might run against him while he had no ground to believe that his seisin had been interrupted.” See, as fully discussing this subject, Kennedy v. Saunders, supra.

It is to be specially observed that the lands in this case are not wild swamp lands, insusceptible of possession, but are plainly lands which have been reduced to actual occupation and tillage since 1891, and not within the range of the observations made in McCaughn v. Young. But, more than this, it is distinctly shown in the testimony of Randle that Burroughs never claimed to own the land adversely to him. Randle' says: “N. T. Burroughs and his son, Roy C. Burroughs, - made every effort to secure a quitclaim from us for these land. A couple of years ago Mr. N. T. Burrougs came to Washington and made me a proposition in the presence of a witness, a resident of Washington, to purchase, and submitted me a quitclaim to sign. The same was filled out in his own handwriting; but, when I declined to make the quitclaim, he begged to have the quitclaim returned to him. I did so after having the same copied and verified. His son, Roy C. Burroughs, wrote me a number of letters, and agreed at one time, to buy all our lands in Sunflower county. Mr. Roy C. Burroughs came from Chicago to Philadelphia to' see me, to get a quitclaim to this property, and at a subsequent date he came to Washington to secure the quitclaim.” He was asked the direct question whether he did not know that N. T. Burroughs and his vendees claimed title to this property as owners thereof, and his answer was: “N. T. Burroughs, I understand, purchased this land at an illegal tax sale the year men-tioned in question No. 11, but I did not know that either of them claimed adverse title to this property, as they persisted in their efforts to purchase from ns.” This is the whole testimony in this record shedding any light upon the question as to whether the appellants ever had continuous, uninterrupted, adverse possession of lot 4 within the meaning of the law. The chancellor passed on the testimony of these three witnesses in reference to this, the only disputed point in the testimony. Ilis finding of the fact must stand, unless we can say that it is manifestly wrong; and that we cannot say on this record.

The opinion delivered in the case of Eastland v. Yazoo Delta Lumber Co., 90 Miss., 330, s. c., 43 South., 956, controls this case so far as the assessment under the Madison act and the inapplicability of any of the statutes of limitation to a sale made under that assessment are concerned, and we refer to that opinion on these points.

Wherefore the decree is affirmed, and the cause remanded for an accounting.

Affirmed.

OPINION ON SECOND APPEAL.

Whitfield, C. J.,

delivered the opinion of the court.

This case was here once before, and the rights of the parties settled in that decree as to title, and the cause remanded for an accounting as to rents, improvements, etc. The master made a report, which was excepted to by both parties, but which was confirmed by the chancellor, all exceptions being disallowed, and both an aj>peal and a cross-appeal have been prosecuted from this decree.

The appellant assigns several errors on the direct appeal. It is obvious that the state never had any title to lot 5, section 31, township 20, range 3 W., under the sale made in 1881. The land was not liable then to taxation. The facts about this lot 5 are these: Lot 5 was sold to the state for taxes in 1881. At that time said land was not liable to taxation, having never been in private ownership. On March 7, 1880, nevertheless, the state undertook to convey the title so alleged to have been so, vested in it by said tax sale in 1881 to one Easterling, who conveyed it to appellant, and Easterling and appellant have paid taxes on said land until the institution of this suit. Appellant insists that he should be allowed the’ cost of redeeming lot 5, with the taxes paid thereon, with ten per cent, interest on the amount of said taxes since the redemption of said land on March 5, 1890, notwithstanding the fact that the title was in the state when the tax sale occurred. The chancellor refused to allow the cost of redeeming lot 5 from the state, amounting to $21.52, and interest at ten per cent, on the taxes paid since the alleged purchase from the state, but did allow said taxes and six per cent, interest on the taxes paid on said lot 5. We think this action was correct. These people did not buy at the tax sale, and they got nothing by their alleged deed from the state. They were entitled to nothing, except what they got, as against this appellee.

The chancellor also refused to allow appellant the amount paid to the tax collector for purchase money of lots 4, 10, and 11, and damages and interest on the taxes paid at ten per cent, per annum, but did allow said taxes, with interest at six per cent. The facts as to these three lots are these: That on March 7, 1892, the tax collector of Sunflower county conveyed to Burroughs these three -lots; appellant deraigning title under Burroughs. We think it is clear, under section 536, of the Code of 1880 as interpreted in Cogburn v. Hunt, 57 Miss., 682, and Mayer v. Peebles, 58 Miss., 628, that the chancellor erred in not allowing the appellant the amount paid to the tax collector for the purchase money on the tax sale of these three lots, 4, 10, and 11, together with damages and interest on the taxes paid according to the statute.

We think the chancellor also erred in not dividing the costs attending the matter of the master’s accounting, and the expenses incident thereto on the decree thereon equally between - the parties. Eor the two errors indicated, the cause is reversed on the direct appeal, and remanded, with instructions to corn-form the decree below to the opinion hereinabove on the direct appeal.

On cross-appeal we thinh the chancellor erred in not allowing cross-appellant rent for the twenty-five acres of land cultivated by Byrd in the year 1904. The testimony clearly shows that the rent of these twenty-five acres for 1904 was worth $6 an acre, $150 in all. This amount seems to have been arbitrarily rejected, so far as we can discover, and should clearly have been allowed. We do not think any other error assigned on the cross-appeal is maintainable on the proof in the record.

Eor this error we reverse the decree on cross-appeal below, and remand the cause, with directions to allow this item of $150.

Reversed.  