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JOHN W. MARTIN v. JOHN ALLEN PHILLIPS AND CAROLYN D. PHILLIPS

SEPTEMBER 23, 1987

JOHN W. MARTIN
v.
JOHN ALLEN PHILLIPS AND CAROLYN D. PHILLIPS



BEFORE WALKER, C.J., PRATHER AND ANDERSON, JJ.

WALKER, C.J., FOR THE COURT:

This case is before the Court on appeal from the Circuit Court of Grenada County, where the lower court dismissed John Martin's action for ejectment pursuant to a motion made under Miss. R. Civ. P. 12(b)(6). From this adverse decision, Martin appeals making one (1) assignment of error.

FACTS

 In 1962 John W. Martin and his wife, Grace P. Martin, owned three hundred forty (340) acres in Grenada County," as a joint estate with the right of survivorship and not as an estate in common. "On or about January 20, 1969, John Martin disappeared from his home. According to the appellee's pleadings, Martin parked his car near the Grenada Reservoir spillway, was wholly insolvent at the time, and was not heard from again by friends or relatives for almost fifteen (15) years.

 In 1976, Grace filed an action in the Chancery Court of Grenada County to have John declared dead in accordance with 13-1-23 of the Mississippi Code. Subsequently, on May 14, 1976, such court entered an order adjudging John to be deceased which stated:

 1. That Grace was the wife and sole heir at law of John Martin.

 2. That John Martin has either remained beyond the sea, absented himself from this State, or concealed himself in the State, for seven years and more successively without being heard of.

 3. That Grace and others believe John Martin to be dead.

 On July 22, 1977. Grace conveyed the subject property to John and Carolyn Phillips, who had been leasing the property with an option to purchase. According to the Phillipses, good and valuable consideration of $95,000.00 was given for the property.

 In August of 1983, John Martin re-appeared in Grenada County. There is nothing in the record that explains Martin's fifteen (15) year absence.

 Following his spectral reemergence from the dead, John filed an action in chancery court to have the May 14, 1976 order declaring him to be dead set aside, and to have all property formerly owned by him restored. On February 23, 1984, the order declaring John dead was set aside, but the chancellor refused to restore all property to him. Subsequently, Martin filed. On October 9, 1984, the present action to eject the Phillipses from the subject property, alleging the following:

 1. The Phillipses entered onto the property in question without legal right and ousted Martin.

 2. The Phillipses are claiming title to the property pursuant to an invalid ...


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