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RUTH M. HEWLETT v. CHARLES A. HENDERSON

APRIL 13, 1983

RUTH M. HEWLETT
v.
CHARLES A. HENDERSON, ET AL.



BEFORE PATTERSON, BOWLING AND DAN LEE

DAN LEE, JUSTICE, FOR THE COURT:

This is an appeal from the Chancery Court of Oktibbeha County wherein Ruth M. Hewlett, appellant, sought cancellation of clouds on her title to certain real property, an order requiring vacation of the premises and a monetary judgment against Charles A. Henderson, et al, appellees, for the reasonable rental value of the property involved. Henderson and his wife answered the bill, and by cross bill sought cancellation and removal of Hewlett's claim to the property in themselves.

The property involved in the controversy was origin any conveyed to Ralph Hewlett by J. A. Long, Sr., by warranty deed dated March 27, 1951, and subsequently recorded in 1954. J. A. Long, Sr. subsequently conveyed property lying to the east of that conveyed to Hewlett to L. E. Spruill by warranty deed dated February 22, 1966. The deed to Spruill likewise included a portion of the property conveyed to Hewlett and has subsequently been developed into a subdivision. The Hendersons purchased Lot 56 of Part 12 of the Green Oaks Subdivision upon which their house was constructed. They have resided thereon since 1973. Sixty-one and two-tenths percent of their lot, including their entire home is situated in the disputed area. From a decree dismissing Mrs. Hewlett's bill of complaint and a finding of adverse possession for a period of over thirty years, she appeals. We affirm.

 The parties to this appeal own adjoining real property in Starkville. They have a common source of title to their respective tracts from J. A. Long, Sr.

 Appellant's ex-husband, Ralph Hewlett, purchased approximately twenty acres of land in three separate transactions. Tracts I and II were purchased from J. A. Long,

 Sr. on October 12, 1948, and July 31, 1949. Neither of these tracts of land is involved in the present controversy.

 On March 27, 1951, Ralph Hewlett purchased the third tract of land from J. A. Long, Sr., which included within the confines of the deed the property now in question. Appellant subsequently obtained title to all three tracts by deed dated August 13, 1976, as part of a property settlement agreement when she and Ralph Hewlett were divorced. This deed did not convey by description the disputed area; however, the deed contained language to the effect that the grantor intended to convey all of his property situated in Section 4, Township 13 North, Range 13 East, consisting of twenty acres or more. Apparently, the description used on this deed was taken from a deed of trust in favor of First Federal Savings & Loan Associated and dated May 29, 1954, which also failed to include the disputed area. Two other deeds of trust were also executed on the property to Dewitt Mississippi Hatchery and Ralston Purina Company dated May 20, 1960, and to Security State Bank dated September 22, 1976. Neither included by description the property presently involved in this litigation.

 On November 12, 1979, after the present controversy arose, Ralph Hewlett executed a quitclaim deed to appellant which described the three tracts according to the legal description contained in the three warranty deeds from J. A. Long, Sr., thereby including the disputed property. The disputed area consists of approximately three acres.

 On February 25, 1966, J. A. Long, Sr., conveyed unto L. E. Spruill approximately eighty-nine acres immediately to the east of appellant's property including the disputed area. Spruill began to develop the property into Green Oaks Subdivision in 1966, beginning on the east side and generally working toward the west. Part 12 of the subdivision was not platted until October 6, 1972. The first improvements in this area were made approximately six to eight months prior to the plat being filed. Appellees purchased Lot 56 of Part 12 of the Green Oaks Subdivision on August 16, 1973, and moved into their new home shortly thereafter. They have resided thereon continuously since their purchase.

 Of the .4882 acres in Lot 56, .3 acre lies within the disputed area, including all of appellees' home. Despite this fact appellees were able to obtain financing for the purchase of their home whereby they executed a deed of trust to Union Planters to secure the purchase price of their home. Appellees have also paid the taxes on their property since its

 purchase.

 The facts disclose that appellant has resided on Tract I since 1948. Sometime after the purchase of Tract III, Ralph Hewlett constructed a fence on the eastern portion of Tract III, running in a northerly direction, which was thereafter for all purposes treated as the eastern boundary of Tract III. Ralph Hewlett testified that at the time he purchased Tract III, he agreed for Long to continue using the disputed area upon which his crops extended. The fence was merely constructed to keep cattle from crossing into Long's field and vice versa.

 Ralph Hewlett never demanded the use of this property following the alleged agreement nor has his family, including appellant, made any use of the disputed property. Up until 1976 Hewlett contended there had been no use of the disputed area different from that for which Mr. Long was granted permission to use the property. Mr. Long's son, J. A. Long, Jr., asserted, however, that he and his father had used the property in their business until 1966 and to the best of his knowledge it was owned by his father.

 After Spruill purchased the property in 1966, he planted pine seedlings in the encroached area in 1967 and bushhogged the property approximately two years later. Construction, however, was not begun in the disputed area until 1972. His intention was to claim all the property up to the fence after his purchase. Although the appellees' home was constructed in the disputed area in 1973, it ...


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