The lands involved in this suit were sold for taxes on April 5, 1920, to F.E. Richardson. They were not redeemed from the sale. The tax title thus acquired by Richardson passed by mesne conveyance to the appellant, she having become the purchaser thereof in October, 1927. In the meantime, the appellees, Hollis S. Robinson, William M. Robinson and Simon E. Robinson, who owned the land at the time of the tax sale, as heirs at law of Fred T. Robinson, deceased, continued in the actual possession and occupancy of the land, claiming it adversely to the tax title and to all conveyances executed subsequent thereto. The appellant brought suit shortly after her acquisition of the tax title, formerly owned by Richardson, to confirm the same and to cancel the claims of the Robinsons as well as those of any and all other persons having any claim or interest in the land, as clouds upon her title, and was granted a decree accordingly; but she failed to obtain a writ of possession, as she may have done, and also failed to thereafter take any steps to disturb the adverse possession and occupancy of the Robinsons until after more than ten years from the maturity of the tax title. Then, she brought the present suit, which was tried upon an agreed statement of facts, wherein it was stated in substance that she had become the owner of the tax title in October 1927, and that her title had been confirmed and quieted by a decree rendered in January 1929, which was unappealed from, and whereby she was vested with a good and perfect title to the land, but it was further stipulated in this agreed statement of facts that the Robinsons have *Page 189 been in the open, notorious, exclusive and adverse possession of the land under claim of ownership through color of title from the year 1891 to the time of the filing of the present suit. The proceedings in the former suit were made an exhibit to and a part of the agreed statement of facts, and the former bill of complaint, filed in 1927 as aforesaid, alleges that the complainant therein was at that time in possession of the land. However, the decree rendered thereon in 1929 contains no express finding as to who was then in possession. No writ of possession was asked for or obtained by the complainant in that suit, and neither was there any change in the adverse possession and occupancy then in fact held by the Robinsons in so far as the agreed statement of facts in the present suit is concerned, as will appear from the express recitals thereof hereinabove mentioned, the appellant having solemnly agreed as aforesaid that the Robinsons have been in the open, notorious, exclusive and adverse possession under claim of ownership through color of title continuously since the tax sale, and prior thereto.
The rule to the effect that an exhibit to a pleading controls when in conflict with the allegations of the pleading should have no application to an exhibit to an agreed statement of facts, which agreement is to be considered in its entirety, since in the former instance a statement in a pleading is a mere allegation of one of the parties which must yield to the recitals of an exhibit thereto upon which the pleader may seek to recover; while in the latter instance an agreed statement of facts when presented to the court represents the agreement of both of the parties and should control as against some formal allegation found in a pleading contained in voluminous court proceedings made an exhibit thereto, and on which allegation no express adjudication has been made; and this is especially true where upon the trial the parties recognize the fact that the allegation in the former pleading is not true. Moreover, the issue in the present suit, and the only issue, is assumed by both parties to be *Page 190 whether or not the adverse possession of the Robinsons from the maturity of the tax sale in 1922 until the decree of 1929 confirming the same can be included in reckoning the ten years adverse possession held by the Robinsons up to the date of the filing of the present suit.
At any rate, the chancellor was at least entitled to look to the entire agreed statement of facts in ascertaining the intention of the parties as to the facts upon which the case was being tried, even though there was a conflict between the express stipulations made therein at the time of the trial of the present suit and some allegation of a former pleading made an exhibit thereto.
Considering the case in the light of the issue thus made, it will be found that in the case of Bell v. Coats, 56 Miss. 776, the Court expressly held that the period of adverse possession of a former owner from the time of the maturity of the tax sale until the rendition of a decree of confirmation thereof, which also cancelled the defendant's claim to the land, could be coupled to such possession retained by the defendant subsequent to such decree, where the complainant in such suit failed to resort to ejectment (as he was then required to do under the law to obtain possession) and to thereby interrupt defendant's occupancy and possession before the expiration of the statutory period following the maturity of the tax title. The rule thus announced in Bell v. Coats, supra, has been neither changed by statute nor by judicial construction so far as I have been able to ascertain. In fact, the appellant concedes that the precise question here involved (that is to say, where the former suit not only sought to confirm the tax title, as in the case of Bell v. Coats, supra, but also asked a general confirmation and quieting of title by the cancellation of claims as clouds thereon, as in the case at bar) has not been decided by this Court so as to announce any different rule as to coupling a period of adverse possession existing before and one accruing after decree of confirmation than that announced in that case; and also concedes that the authorities in other jurisdictions are in conflict on this question. *Page 191 However, I am of the opinion that Section 2287 of the Code of 1930 settles the question here involved in favor of the appellees by providing that: "Ten years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten years by occupancy, descent, conveyance, or otherwise, in whatever way such occupany may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority of unsoundness of mind . . ." etc. In other words, the statute contains its only exceptions. There are none other, and it seems to me that it would avail one, who is admittedly the owner of the legal title, nothing to have his title confirmed every year during the ten-year period, or to have clouds thereon cancelled, if he permits an adverse occupant and claimant of the land to remain in possession continuously during such ten-year period. The confirmation of appellant's title and the cancellation of adverse claims thereto in 1929 merely established the title as against the Robinsons that she already had, they having been in adverse possession only approximately seven years between the maturity of the said valid tax title and the rendition of such decree. Their claim of adverse possession, although not expressly cancelled by that former decree, was impliedly cancelled for the reason that it had not at that time ripened into a good title under the statute above mentioned. But in my opinion there is a difference between cancelling a claim of title to land based on adverse possession, because of the then insufficiency of the period of its duration, and in breaking the continuity of such possession. By their answer in that suit, the Robinsons averred that they were then in adverse possession of the land and that they intended to so remain. The appellant here, as complainant in that case, could have thereupon amended her bill and asked for a writ of possession in order to dispossess them of the land following the decree of confirmation. She did not do this, but permitted their possession and occupancy to *Page 192 continue adverse for the statutory period, including their prior occupancy. The owner of a legal or equitable title, or both, when clouds are cancelled and the title is confirmed and quieted, as against an adverse occupant, is afforded an ample remedy of obtaining and having executed a writ of possession in the same proceeding, or by a writ of ejectment at law, and such other remedial writs as are provided by law, as the only means of preventing a title by adverse possession being acquired against him. I know of no statute or decision declaring that it can be done by the entry of a decree which remains unexecuted. Moreover, I am unable to see any distinction between Bell v. Coats, supra, and the present case so far as the principle involved in each of the two cases is concerned.
Anderson, J., concurs in this dissent from the action of the court in overruling the suggestion of error.