The appellee, Mary Jackson, a negro woman, filed her bill in the Chancery Court of Hinds County against the appellant, Mrs. J.W. Broome, and any others claiming an interest, seeking under the authority of sections 403 and 404, Code of 1930, to confirm her title to ten acres of land in Hinds County, and to cancel and remove, as a *Page 71 cloud upon her title thereto, the adverse claim of title of Mrs. Broome, and also against any others claiming interest therein, and also prayed that possession and rents be awarded her. There was an original bill and three amendments and a demurrer thereto by Mrs. Broome. The complainant's case was finally embodied in the original bill and the third amendment. The demurrer was overruled, and Mrs. Broome granted an appeal to settle the principles of the case.
Attached to the bill is the complainant's deraignment of title. It shows that the land was conveyed to complainant's husband, Enoch Jackson, by W.J. Griffin on February 13, 1903, and that Mrs. Broome's claim of title is based on a conveyance to her by L.H. Greaves on December 28, 1934; and that Greaves claimed title through a tax sale of the land. The bill alleged that the tax sale was void, and it had been so held by the Supreme Court in a certain case (naming it). Complainant's title is based on the conveyance to her husband, and open, notorious, adverse possession by her for more than ten years before suit was brought, and before Mrs. Broome received her conveyance.
The bill alleges that the complainant and her husband, Enoch Jackson, resided on and occupied the land as their home until 1920, when her husband deserted and left her, and that his whereabouts since then are unknown; that since that time, and up to some time in 1934, she has been in actual, open possession of the land, claiming it was hers, against everyone; that in 1934 she was forced through fear and intimidation to abandon possession of the land, and that immediately thereafter Mrs. Broome went into possession, and has so continued up to the bringing of this suit.
The two questions raised by demurrer are: (1) Whether the complainant shows a good title and right to possession of the land, as against Mrs. Broome's claim; and (2) whether, in view of the allegation in the bill, that the complainant *Page 72 was out of possession, and Mrs. Broome was in possession, the former was entitled to the relief prayed therefor.
Taking up the questions in the order stated:
(1) Although the case of Lincoln v. Mills, 191 Miss. 512,2 So. 2d 809, 3 So. 2d 835, is not in point on its facts, nevertheless, the court held in that case that a wife could acquire title by adverse possession of land against her husband, although they were living together as man and wife. We have here, not a man and wife living together in that relation, but a husband who had abandoned and deserted his wife for more than twenty years before the bill was filed, and, furthermore, a husband who had been divorced at the instance of his wife for more than fifteen years before the suit was brought. Her claim of title and possession went unchallenged until 1934, when Mrs. Broome forced her out of possession and began to claim title. Under the law the complainant was required to show a good title in herself. This we think she did.
(2) Section 403 of the Code, authorizing bills to confirm title to land provides, among other things, that the complainant must either show that he is the owner, and in possession, of the land, or that he is the owner and the land is unoccupied. Here, as shown above, the land was occupied when the suit was brought by Mrs. Broome. In Hume v. Inglis, 154 Miss. 481, 122 So. 535, construing section 403 of the Code, it was held that either possession in the complainant, or the fact that the land was unoccupied, was indispensable to the confirmation of title. Under section 404 of the Code, authorizing the removal of clouds from titles to land, possession by the complainant, or nonoccupancy of the land, are not required as a condition precedent to the right.
The result is that the demurrer was rightfully overruled as to that feature seeking to remove clouds from complainant's title, and for possession and rents; and ought to *Page 73 have been sustained as to the other feature, which sought confirmation of the complainant's title.
Affirmed in part, reversed in part, and remanded.