IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-CA-00693-COA
MARVIN OTIS KING APPELLANT
v.
LINDA DURR APPELLEE
DATE OF JUDGMENT: 06/09/2022 TRIAL JUDGE: HON. DAVID SHOEMAKE COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ROBERT WENDELL JAMES ATTORNEY FOR APPELLEE: JAMES BURVON SYKES III NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 10/24/2023 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.
SMITH, J., FOR THE COURT:
¶1. Marvin King filed a complaint in the Simpson County Chancery Court against his
sister, Linda Durr, and asserted a claim of adverse possession of forty acres of land located
in Simpson County, Mississippi. Linda answered the complaint and filed a counter-claim in
which she asked the chancellor to confirm her title to the forty acres. After finding that
Marvin had failed to meet his burden of proof for adverse possession, the chancellor entered
a final judgment in favor of Linda. Upon review of Marvin’s appeal from the chancellor’s
judgment, we find no error and affirm.
FACTS
¶2. Eddie and Lillie King, the parties’ parents, owned several tracts of land that were either adjoined or in the general vicinity of the subject real property. In 1949, the forty acres
at issue were initially conveyed to Eddie. In 1963, Eddie and Lillie executed a warranty deed
that conveyed the forty acres to themselves as “an estate by the entirety with full rights of
survivorship.”
¶3. Without Lillie’s accompanying signature, Eddie executed a special warranty deed in
1990 to convey the forty acres to Marvin.1 Eddie died in 1994. In 2008, Lillie signed her last
will and testament in which she devised and bequeathed “the rest and residue” of her real and
personal property to Linda. Lillie died on April 9, 2012, and the following month, her will
was admitted to probate.
¶4. In 2021, Marvin performed a title search on the subject property as part of his
preparations to sell the land. Only then did Marvin discover that the forty acres did not
legally belong to him. As a result, on March 29, 2021, Marvin filed a complaint against
Linda and sought title to the forty acres by adverse possession. On April 12, 2021, Linda
answered the complaint. She also filed a counter-claim in which she disputed Marvin’s claim
of adverse possession and requested that the chancellor confirm her title to the forty acres.
¶5. After a hearing, the chancellor entered a final judgment on June 9, 2022. Neither
party disputed that the 1990 deed in which Eddie had conveyed the forty acres to Marvin was
void due to the absence of Lillie’s signature. As a result, the chancellor concluded not only
that Lillie still owned the forty acres at the time of her death but also that her devise of “the
rest and residue” of her real property to Linda had included the forty acres. The chancellor
1 On appeal, Marvin does not dispute that the 1990 deed conveying the forty acres to him was void due to the absence of Lillie’s signature.
2 found that both Linda and Marvin had testified to Lillie’s competency before her death in
2012 and that Marvin had even stated his mother had “a good mindset.” Because Marvin had
acknowledged that his only claim of ownership to the land was through adverse possession,
the chancellor considered whether Marvin had sufficiently proved the elements of adverse
possession.
¶6. To succeed on his adverse-possession claim, Marvin was required to prove each
statutory element by clear and convincing evidence. Franco v. Ferrill, 342 So. 3d 1176,
1188 (¶29) (Miss. Ct. App. 2022). The chancellor found, however, that Marvin had failed
to meet his burden of proof for any of the required elements. The chancellor therefore did
not confirm Marvin’s alleged title by adverse possession and, instead, confirmed Linda’s title
to the forty acres. Marvin filed a motion for reconsideration as well as an amended motion
for judgment notwithstanding the judgment or, alternatively, a new trial. Aggrieved by the
chancellor’s final judgment and denial of his post-trial motions, Marvin appeals.
STANDARD OF REVIEW
¶7. “This Court ‘will not disturb the findings of a chancellor unless the chancellor was
manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’” Green v.
Poirrier Props. LLC, 344 So. 3d 318, 324 (¶16) (Miss. Ct. App. 2022) (quoting Okoloise v.
Yost, 283 So. 3d 49, 54 (¶22) (Miss. 2019)). “Further, this Court ‘will not reverse a
chancellor’s findings’” when they are supported by substantial evidence. Id. (quoting
Okoloise, 283 So. 3d at 54 (¶22)). The appellate courts review questions of law de novo.
Crotwell v. T & W Homes, 318 So. 3d 1117, 1121 (¶11) (Miss. 2021).
3 DISCUSSION
¶8. Mississippi Code Annotated section 15-1-13(1) (Rev. 2019) defines adverse
possession as follows:
Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title . . . .
¶9. Thus, to establish his claim of adverse possession, Marvin had to prove by clear and
convincing evidence that his possession of the forty acres “was ‘(1) under claim of
ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and
uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.’” Franco, 342 So.
3d at 1188 (¶29) (quoting Frazier v. Frazier, 31 So. 3d 1218, 1220 (¶6) (Miss. Ct. App.
2009)). “Possession is hostile and adverse when the adverse possessor intends to claim title
notwithstanding that the claim is made under a mistaken belief that the land is within the
calls of the possessor’s deed.” Id. at 81-82 (¶17) (quoting Wicker v. Harvey, 937 So. 2d 983,
994 (¶34) (Miss. Ct. App. 2006)). “Importantly, the adverse possessor must hold the property
without the permission of the true title owner since permission defeats adverse possession.”
Winters v. Billings, 281 So. 3d 75, 80 (¶13) (Miss. Ct. App. 2019) (citation and internal
quotation marks omitted). In addition, “joint use of property is insufficient to establish
adverse possession.” Id. at 82-83 (¶22) (quoting Riverland Plantation P’ship v. Klingler, 942
So. 2d 294, 298 (¶14) (Miss. Ct. App. 2006)).
¶10. Here, the chancellor determined that before Lillie’s death, Marvin and his sisters had
4 used the forty acres with the implied permission of their mother, the true owner. The
chancellor found the testimony showed that multiple family members “grazed [their cows]
together at one time or another on all of the King property” and that “[t]he various pastures,
including the forty acres that are the subject of this suit, were not exclusive to one member
of the family or another.” Marvin himself testified that at the time of Lillie’s death in April
2012, she still owned cows that she continued to graze on a portion of the forty acres. Linda
and her husband Paul also testified that they had grazed their cows on the forty acres both
during Lillie’s lifetime and after her death. In addition, Paul stated that he had never sought
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-CA-00693-COA
MARVIN OTIS KING APPELLANT
v.
LINDA DURR APPELLEE
DATE OF JUDGMENT: 06/09/2022 TRIAL JUDGE: HON. DAVID SHOEMAKE COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ROBERT WENDELL JAMES ATTORNEY FOR APPELLEE: JAMES BURVON SYKES III NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 10/24/2023 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.
SMITH, J., FOR THE COURT:
¶1. Marvin King filed a complaint in the Simpson County Chancery Court against his
sister, Linda Durr, and asserted a claim of adverse possession of forty acres of land located
in Simpson County, Mississippi. Linda answered the complaint and filed a counter-claim in
which she asked the chancellor to confirm her title to the forty acres. After finding that
Marvin had failed to meet his burden of proof for adverse possession, the chancellor entered
a final judgment in favor of Linda. Upon review of Marvin’s appeal from the chancellor’s
judgment, we find no error and affirm.
FACTS
¶2. Eddie and Lillie King, the parties’ parents, owned several tracts of land that were either adjoined or in the general vicinity of the subject real property. In 1949, the forty acres
at issue were initially conveyed to Eddie. In 1963, Eddie and Lillie executed a warranty deed
that conveyed the forty acres to themselves as “an estate by the entirety with full rights of
survivorship.”
¶3. Without Lillie’s accompanying signature, Eddie executed a special warranty deed in
1990 to convey the forty acres to Marvin.1 Eddie died in 1994. In 2008, Lillie signed her last
will and testament in which she devised and bequeathed “the rest and residue” of her real and
personal property to Linda. Lillie died on April 9, 2012, and the following month, her will
was admitted to probate.
¶4. In 2021, Marvin performed a title search on the subject property as part of his
preparations to sell the land. Only then did Marvin discover that the forty acres did not
legally belong to him. As a result, on March 29, 2021, Marvin filed a complaint against
Linda and sought title to the forty acres by adverse possession. On April 12, 2021, Linda
answered the complaint. She also filed a counter-claim in which she disputed Marvin’s claim
of adverse possession and requested that the chancellor confirm her title to the forty acres.
¶5. After a hearing, the chancellor entered a final judgment on June 9, 2022. Neither
party disputed that the 1990 deed in which Eddie had conveyed the forty acres to Marvin was
void due to the absence of Lillie’s signature. As a result, the chancellor concluded not only
that Lillie still owned the forty acres at the time of her death but also that her devise of “the
rest and residue” of her real property to Linda had included the forty acres. The chancellor
1 On appeal, Marvin does not dispute that the 1990 deed conveying the forty acres to him was void due to the absence of Lillie’s signature.
2 found that both Linda and Marvin had testified to Lillie’s competency before her death in
2012 and that Marvin had even stated his mother had “a good mindset.” Because Marvin had
acknowledged that his only claim of ownership to the land was through adverse possession,
the chancellor considered whether Marvin had sufficiently proved the elements of adverse
possession.
¶6. To succeed on his adverse-possession claim, Marvin was required to prove each
statutory element by clear and convincing evidence. Franco v. Ferrill, 342 So. 3d 1176,
1188 (¶29) (Miss. Ct. App. 2022). The chancellor found, however, that Marvin had failed
to meet his burden of proof for any of the required elements. The chancellor therefore did
not confirm Marvin’s alleged title by adverse possession and, instead, confirmed Linda’s title
to the forty acres. Marvin filed a motion for reconsideration as well as an amended motion
for judgment notwithstanding the judgment or, alternatively, a new trial. Aggrieved by the
chancellor’s final judgment and denial of his post-trial motions, Marvin appeals.
STANDARD OF REVIEW
¶7. “This Court ‘will not disturb the findings of a chancellor unless the chancellor was
manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’” Green v.
Poirrier Props. LLC, 344 So. 3d 318, 324 (¶16) (Miss. Ct. App. 2022) (quoting Okoloise v.
Yost, 283 So. 3d 49, 54 (¶22) (Miss. 2019)). “Further, this Court ‘will not reverse a
chancellor’s findings’” when they are supported by substantial evidence. Id. (quoting
Okoloise, 283 So. 3d at 54 (¶22)). The appellate courts review questions of law de novo.
Crotwell v. T & W Homes, 318 So. 3d 1117, 1121 (¶11) (Miss. 2021).
3 DISCUSSION
¶8. Mississippi Code Annotated section 15-1-13(1) (Rev. 2019) defines adverse
possession as follows:
Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title . . . .
¶9. Thus, to establish his claim of adverse possession, Marvin had to prove by clear and
convincing evidence that his possession of the forty acres “was ‘(1) under claim of
ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and
uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.’” Franco, 342 So.
3d at 1188 (¶29) (quoting Frazier v. Frazier, 31 So. 3d 1218, 1220 (¶6) (Miss. Ct. App.
2009)). “Possession is hostile and adverse when the adverse possessor intends to claim title
notwithstanding that the claim is made under a mistaken belief that the land is within the
calls of the possessor’s deed.” Id. at 81-82 (¶17) (quoting Wicker v. Harvey, 937 So. 2d 983,
994 (¶34) (Miss. Ct. App. 2006)). “Importantly, the adverse possessor must hold the property
without the permission of the true title owner since permission defeats adverse possession.”
Winters v. Billings, 281 So. 3d 75, 80 (¶13) (Miss. Ct. App. 2019) (citation and internal
quotation marks omitted). In addition, “joint use of property is insufficient to establish
adverse possession.” Id. at 82-83 (¶22) (quoting Riverland Plantation P’ship v. Klingler, 942
So. 2d 294, 298 (¶14) (Miss. Ct. App. 2006)).
¶10. Here, the chancellor determined that before Lillie’s death, Marvin and his sisters had
4 used the forty acres with the implied permission of their mother, the true owner. The
chancellor found the testimony showed that multiple family members “grazed [their cows]
together at one time or another on all of the King property” and that “[t]he various pastures,
including the forty acres that are the subject of this suit, were not exclusive to one member
of the family or another.” Marvin himself testified that at the time of Lillie’s death in April
2012, she still owned cows that she continued to graze on a portion of the forty acres. Linda
and her husband Paul also testified that they had grazed their cows on the forty acres both
during Lillie’s lifetime and after her death. In addition, Paul stated that he had never sought
Marvin’s permission to graze cows on the forty acres and that to his knowledge, Lillie had
likewise never asked anyone’s permission to graze her cows on the land.
¶11. Paul and Linda also testified that during Lillie’s lifetime, Marvin had never posted any
signs, such as “no trespassing” signs, on the subject property, nor did Marvin ever tell them
not to graze their cows on the land. Marvin himself provided no testimony that he ever
posted “no trespassing” or other similar signs on the forty acres. And while Marvin stated
that he had never sought his mother’s express permission to use the forty acres, he also did
not testify that others sought or were denied his express permission to use the land. Linda
and Paul also stated, and the chancellor found as credible, that during her lifetime Lillie had
continued to refer to the forty acres as “her property.”
¶12. Based on the testimony and evidence presented at the hearing, the chancellor
concluded that “the earliest [Marvin] could have begun to adverse[ly] possess the property
would have been upon his mother’s death” on April 9, 2012, which was “just shy of nine
5 years” from the time Marvin filed his complaint against Linda on March 29, 2021, and just
over nine years from when Linda filed her timely counter-claim on April 12, 2021. As a
result, the chancellor determined that Marvin could not satisfy “the statutory requirement of
adversely possessing [the land] for a period of not less than ten years.” The chancellor
concluded that in addition to Marvin’s failure to adversely possess the land for ten years,
Marvin had not sufficiently established any of the other elements required for adverse
¶13. Upon review, we cannot say that the chancellor manifestly erred in applying the
elements of adverse possession to Marvin’s claim. The record contains sufficient evidentiary
support for the chancellor’s finding that Marvin failed to prove each element of adverse
possession by clear and convincing evidence. We therefore find no clear error in the
chancellor’s denial of Marvin’s claim of title to the subject property by adverse possession.
CONCLUSION
¶14. Finding no error, we affirm the chancellor’s judgment denying Marvin’s claim of
adverse possession and confirming Linda’s title to the forty acres.
¶15. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ., CONCUR.