Cunningham v. Dean

33 Miss. 46

• Court: Mississippi Supreme Court
• Decided: April 15, 1857
• Status: Published

Opinion

Fisher, J.,

delivered the opinion of the court.

This was an action under the Pleading Act of 1850, by the plaintiff below, in the Circuit Court of Marshall county, to recover a tract of land in the possession of the defendant.

The plaintiff, in support of his title, read a deed from Deloach and wife to the Farmers’ and Merchants’ Bank of Tennessee, a deed from the sheriff of Marshall county, dated in April, 1848, showing that the land was sold for the payment of the taxes assessed on the land against the said Bank in 1847, a quitclaim deed from plaintiff to one Buss, and a quitclaim deed from him to the plaintiff.

There was also proof that the defendant was in possession of the land at the commencement of the suit, but it was not shown under whom he claimed.

Giving to the sheriff’s deed its full legal effect, it could convey only the title of the Bank; and nothing appearing to show that the defendant claimed either under the Bank or under Deloach, the proof was of course insufficient to sustain the action. It was incumbent on the plaintiff to show that he and the defendant claimed through or from the same party; that the defendant had in some way acknowledged the plaintiff’s title, or the title of the parties from whom he claimed ; and, failing to make this showing, he was bound to prove a complete title to the land.

Judgment affirmed.