Hopper v. Overstreet

79 Miss. 241

• Court: Mississippi Supreme Court
• Decided: October 15, 1901
• Status: Published

Opinion

Cauhoon, J.,

delivered the opinion of the court.

The title and possession of the property in controversy was once in one Woodson. The' defendant in the suit below himself admits that he had no sort of title unless by the statute of limitation of ten years. He says he had bought a piece of adjoining property from one Treadawray, and that when he bought Treadaway informed Mm that Woodson owned the property claimed in this suit, but that he did not think Woodson would ever disturb defendant if he took it. The Methodist church, through its trustees, filed its bill to cancel the claim of Hopper as a cloud upon its title, and it claimed the property through Woodson by successive conveyances, Mr. James Watts being its immediate grantor, and by prescription. But the church avers that it had a deed from Watts to the land, which deed was lost after being recorded, which record was destroyed by the burning of the courthouse of the county. Mr. Hopper’s answer sets up adverse possession for more than ten years, and, attempting to answer the allegation that the deed was lost, says: “Defendant does not know whether said deed of said Watts is lost ' or destroyed, but demands proof on said point. ” We agree with the chancellor that Mr. Hopper has been unsuccessful in showing title by adverse possession, and we concur with the chancellor, in his holding that the church had the title. Without determining whether there has been sufficient proof of the loss of the instrument, we now determine, under § 533 of the code, 1892, that proof of the loss of the deed need not be made because of the insufficiency of the answer. Defendant has not answered the charge of the loss of the instrument except to say he does not know whether it was lost or not. He has not denied it as to his information and belief. This has been always required by the rules of pleading in equity. McAllister v. Clopton, 51 Miss., 257; Mead v. Day, 54 Miss., 58; the last case overruling on this point the case of Cowen v. Alsop, 51 Miss., 158.

We need not consider the many objections made to the testimony,' because we think the unobjectionable evidence sustains the complainant. The objection to the first interrogatory to James Watts is too technical. It was entirely competent to ask whether he was acquainted with the land described in the bill, reading the description to him, and he testified that he did convey that land by deed to the trustees of the church.

Affirmed.