concurring in part and dissenting in part.
I concur with the majority that the inherited interest of J. W. Nichols, together with the interests of Mary Nichols, Charlie Nichols, and Lou Toy McGowan, were correctly vested in the appellee by the decree of the lower court.
Obviously, H. B. Gillespie, trustee, and Mrs. Sallie Y. Herring, mortgagee, were strangers to the title when J. N. Nichols and wife, Mary E. Nichols, by recorded deed of trust of date of February 6, 1928, conveyed and war*234ranted this land, without restriction or limitation, to the trustee for the benefit of Mrs. Herring. Manifestly Gad-dis and McLaurin were strangers to the title, when on March 7, 1932, they thought they were obtaining title from the trustee as a result of the foreclosure of that deed of trust.
“Adverse possession of property under a void or defective deed may ripen into title, and a void or worthless deed may be sufficient to show the hostile character of the possession, or the date on which adverse possession began, and the nature and extent of possession. ’ ’ 2 C. J. S. 591, Adverse Possession, c., Section 72.
I am unable to distinguish any difference between their situation, as strangers to the title, and the situation of the parties in Eastman Gardiner, et al. v. Hinton, 86 Miss. 604, 38 So. 779, Davis v. Gulf Refining Company, 202 Miss. 808, 32 So. 2d 133, and Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841.
In the Eastman Gardiner case, supra, Mrs. Hinton and Isaiah and Nathaniel Creel were the owners of the lot in question. In 1885, Isaiah made a deed to John Creel, a stranger to the title, for the whole lot, but the deed was not recorded until 1895, when, by mesne conveyances, the title became vested in Eastman Gardiner by warranty deed. Mrs. Hinton was never notified that any of the defendants were claiming her interest in the property, and she filed suit on February 20, 1903, less than ten years since the recordation of the deed. In the meantime, the defendants had exercised control over the property since the execution of Isaiah’s deed. The Court held that: “The occupancy of John Creel in 1885 was founded on an instrument which, by its very terms, constituted such an act of ouster as would have justified appellee (Mrs. Hinton) in bringing ejectment for the property.” The opinion cited with approval 45 Cent. Dig., Tenancy in Common, Section 39; Washburne on Real Property, Section 883, as follows: “When one tenant in common of land conveys the whole estate in fee, *235with covenants of seizing and warranty, and the grantee enters and holds exclusive possession thereof, such entry and possession are a disseizin of the cotenant. ’ ’ It also cited with approval Greenhill v. Biggs (Ky.), 2 S. W. 774 (7 Am. St. Rep. 579); Rutter v. Small, 68 Md. 133 (11 Atl. 698; 6 Am. St. Rep. 434). “When the vendee of one tenant in common sets up claim in his oto right to the whole tract of land, and enters and holds possession open and continuously for more than the statutory period, his possession is adverse, and a recovery by the other tenants in common is barred, although they had no actual notice of the adverse character of the possession.”
The Court, in its opinion, explained that: ‘ ‘ The principle which requires actual notice, or acts of repudiation equivalent thereto, applies only to cases where there is some relation between the occupant and the holder of the legal title, which imposes upon the occupant the obligation of giving notice, either actually or ‘shown by such acts of repudiation of their claim as are equivalent to actual notice,’ as a condition precedent to the assertion of any hostile claim by him.”
In the Davis case, supra, the widow and five children, all of the heirs of D. L. Davis, deceased, except Willie E. Davis, conveyed the land in question by warranty deed, recorded May 6, 1931, to W. W. Dearman, a stranger to the title. The bill by the wife and son of Willie E. Davis was filed on January 29, 1945, more than ten years after the recordation of the deed. The opinion said: “The execution of the warranty deed by the heirs of D. L. Davis, as cotenants, to Dearman, a stranger to the title, was an assertion of title and an assumption of dominion which Avas at once a repudiation of the tenancy and a challenge to the missing cotenant, appellant. Its execution and recordation constituted in legal effect a disseisin and operated as an ouster. Appellant was thereby put upon notice of the asserted *236claim of his cotenants, and was put under a duty to challenge their assumption by proper proceedings.”
In the Chatman case, supra, it was held that the execution of an oil and gas deed by Eliza Carter, widow of the claimed parol donee of the land, to Anderson, a stranger to the title, was evidence of ouster.
It is true that, in this case, the conveyance was a deed of trust, whereas in the cases enumerated above, the conveyances were deeds. But no authority has been cited to show that the warranty in a deed of trust is less effective than in a deed. Gaddis and McLaurin assuredly did not know that they were cotenants with anyone else. They were implicit in their belief that they were the sole owners. It was only at the end of a lawsuit, twenty-two years later, that it was ascertained that the foreclosure of the deed of trust was illegal, and, on that account, it can now be said that they were actually cotenants at the time of their entry. If the premise, that Gaddis and McLaurin were strangers to the title is sound, then the principles laid down in the Eastman Gardner, Davis and Chatman, cases, supra, are applicable.
One of the maxims of equity is that it aids “the vigilant, not those who slumber on their rights.” Pomeroy’s Equity Jurisprudence, 4th Ed., p. 783.
I concede that one should not be required to go to the records every year to ascertain whether his cotenant has encumbered the joint property. But I maintain that he should find out about the state of the title at least once in ten years. Herbert Wilson, whose land joins this tract, testified that, when he first came to Mississippi in 1913, J. N. Nichols told him about this land belonging to him, and pointed out the lines. Besides, J. N. Nichols had it assessed to himself from 1915 until his death. The record indicates that from 1913 until 1927, when Lem Nichols moved on the place, J. N. Nichols exercised control over this land. There was not the slightest proof that the appellants, or either of them, *237from the date of J. N.’s death until 1952, a period of twenty-one years, manifested any interest whatsoever in the land. If they had inquired, they would have found out that Gaddis and McLaurin were claiming it, that they had a deed of record, that the map of the county showed their ownership, that they were paying the taxes, and that J. W. Nichols was their tenant and was paying rent to them. For this long period of time, they manifested no interest in the state of title, or the payment of taxes, or an accounting for rents. They slumbered on whatever rights they had. To me, the inference is inescapable that they knew about the foreclosure, and were of the opinion either that they had no interest in the land, or, if they in fact did have an interest, they had lost it. Such an utter lack of interest and concern for this period of time should not be excused.
Lem and his wife, Henrietta, lived on the place from 1927 until 1930. It is unthinkable to me that they did not know about the execution of the deed of trust in 1928. Gaddis and McLaurin’s possession from 1933 until 1952 was absolute.
The principle in Peeples v. Boykin, 132 Miss. 359, 96 So. 177, has been well-settled since 1923. The case has been often cited, some of which citations are referred to in the majority opinion. It would have been an easy matter for the Legislature to change this rule, if it had not met with popular approval. In view of the majority opinion, I realize the futility of urging the retention of this principle further than to say that I think it ought to be available in this kind of case, and I am averse to overruling it, although I do not think it necessary to apply it in this case.
The majority opinion takes the position that Gaddis and McLaurin’s physical entry was insufficient. Well, they actually went upon the land under color of title. It was not necessary to throw off bodily those on the land. As a matter of fact, they were living on the 19-acre *238tract. They recognized the right of Gaddis and McLaurin to possession, and “no force or violence is necessary to constitute an ouster.” Iler v. Routh’s Heirs, 3 How. 276, 4 Miss. 276.
Gaddis and McLaurin received all of the rents for this long period of time, and “any act of one joint tenant which is evidence of a claim of exclusive ownership, such as taking all the rents and profits to himself will constitute a disseisin.” (Emphasis supplied.) Iler v. Routh’s Heirs, supra.
It has been said that payment of taxes for twenty-four years was ‘ ‘ powerful evidence of the claim of right * * and that “It is some evidence that the possession was under a claim of right and was adverse.” See Native Lumber Company v. Elmer, 117 Miss. 720, 78 So. 703, as follows: “Discussing the question of the payment of taxes as evidence of adverse possession, the supreme court of the United States says: ‘Payment of taxes, as described in the above statement of facts, is very important and strong evidence of a claim of title; and the failure of the plaintiff’s predecessors to make any claim to the lot, or to pay the taxes themselves, is some evidence of an abandonment of any right in or claim to the property. In Ewing v. Burnet, 36 U. S. (11 Pet.) 41 (9 L. Ed. 624), it was held by this court that the payment of taxes on land for twenty-four successive years by the party in possession was powerful evidence of the claim of right to the whole lot upon which the taxes were paid. The same principle is held in Fletcher v. Fuller, 120 U. S. 534, 552 (7 Sup. Ct. 667, 676, 30 L. Ed. 759, 764.)”
I do not think that Smith v. Anderson, 193 Miss. 161, 8 So. 2d 251, cited in the majority opinion, is applicable here. That case was a construction of Section 716, Code of 1942, the statute providing for three years actual occupation under a tax title. The opinion there pointed out the difference between this statute and Section 711, Code of 1942, the ten-year adverse possession *239statute. In the former, actual occupancy was required, whereas in the latter, one may acquire title hy exercising acts of ownership and control over land, without actually occupying it.
The majority opinion holds that J. W. Nichols can maintain his claim for his after-acquired interest, with which conclusion, I disagree.
If, in 1933, he had refused to recognize the claim of Gaddis and McLaurin, or, if he had asserted his claim or the claim of others, very probably Gaddis and McLaurin could have validated their foreclosure and could have established full title in their predecessor, J. N. Nichols, because of his possession from 1913 until 1927, and the execution of the deed of trust thereon in 1928, as previously stated. But by his recognition of Gaddis and McLaurin’s title, and by his silence in failing to assert a claim for himself and others, he induced and abetted Gaddis and McLaurin to rest in peace with their title and possession. How can he now, by acquiring interests of those, who, it is said, had no actual notice of Gaddis and McLaurin’s possession, defeat, in his own right, the title and possession of Gaddis and McLaurin, which he himself had a major part in establishing? Such a position is contrary to the principles of equitable estoppel.
In Hart v. Livermore Foundry & Machine Company, 72 Miss. 809, 17 So. 769, it was said: “Estoppel operates only in favor of one who, in reliance upon the act, representation or silence of another, so changes his situation as that injury would result if the truth were shown. ’ ’ (Emphasis supplied.) The principle there stated was cited with approval in Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726, and Gulf Refining Company v. Travis, 201 Miss. 336, 29 So. 2d 100.
In Kelso v. Robinson, 172 Miss. 828, 161 So. 135, as to equitable estoppel, this Court said: “Estoppel may arise from misleading silence or passive conduct joined with a duty to speak. The doctrine lies at the foundation of morals; it is based on equity and good conscience. ’ ’ *240See also Martin v. Hartley, 208 Miss. 112, 43 So. 2d 875; Stokes v. American Central Insurance Company, 211 Miss. 584, 52 So. 2d 358.
March 16, 1955 78 So. 2d 471In 19 Am. Jur. 641-642, Estoppel, Section 42, it is said that this principle, which rests on morality and fair dealing, “holds a person to a representation made or a position assumed where otherwise inequitable consequences would result to another who, having the right to do so, under all the circumstances of the case, has in good faith relied thereon and been misled to his injury.” See also Section 55, pp. 661-662 thereof, where it is recognized that an estoppel may arise from silence or inaction, and it is said that: ‘ ‘ The principle underlying such estoppels is embodied in the maxim ‘one who is silent when he ought to speak will not he heard to speak when he ought to he silent.’ ”
I would affirm.