¶1Suit at law was begun in ejectment by appellant, who, after transfer thereof to the chancery court, filed his bill against C.W. Cox, Eugene Robertson, David Sanderson, trustee, and the Federal Land Bank of New Orleans. Complainant sought possession of twenty acres in the S 1/2 of fractional Section 4, T. 13, Range 2 W., in Calhoun County, Mississippi, the cancellation of certain instruments under which defendants asserted title, and for damages and mesne profits.
¶2A deraignment of the title thereto shows a common source, complainant asserting title under deed of a Commissioner of the chancery court dated November 21, 1890, and the defendant, Cox, under a tax deed dated March 3, 1890. The defendant Robertson was eliminated from the case under his special demurrer. Cox claims ownership under a deed from the Federal Land Bank in 1936. The Land Bank had acquired same through trustee's deed after foreclosure of deed of trust in its favor given by the said Robertson. It seems to be conceded that the paper title to said property is in the defendant, Cox. Complainant rests his claim upon adverse possession.
¶3Fractional section 4 contains about 156.36 acres, and is L-shaped and lies to the north and east of Section 1, T. 24, R. 8 E. The N. 1/2 of Section 4, approximating eighty acres, is known as the Cooner lands and is not involved in the controversy. Nor is any other part of said section except the E. 1/2 of the remainder of the north portion of Section 4 lying north of said Section 1 and south of the Cooner land.
¶4As in all suits of this character, the evidence is extensive, conflicting, and confusing. It appears clear, however, that complainant has exercised such dominion over part of the land in suit as would establish title thereto *729 by adverse possession, and we so hold. It remains to adjust such fact to the legal principles involved. Complainant's adverse possession of part of said land under the color of title furnished by the commissioner's deed in 1890 would give him title to the extent of the calls of said deed (Hanna v. Renfro,32 Miss. 125; Wilson v. Williams' Heirs, 52 Miss. 487; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Evans v. Shows,180 Miss. 518, 177 So. 786) unless there are conflicting superior claims by Cox, who holds a superior paper title. Such claims, however, would have to depend upon such assertions of ownership as amounted to an adverse possession by defendant of a part of such lands. The constructive possession of the whole by adverse possession of a part would be superior in him who held the superior title. Railway Co. v. Buford, 73 Miss. 494, 19 So. 584; 2 C.J.S., Adverse Possession, sec. 193, page 798.
¶5The complainant claims under the adverse possession by himself, while the defendant Cox, who bought the land in 1936, bases his claim of adverse possession upon the acts of his predecessors in title. Such acts related almost exclusively to the payment of taxes and to certain transactions by sale and mortgage, common repute, and other evidence circumstantial in its nature. In view of the long, continuous occupancy by complainant under color of title to the entire S.1/2 of fractional Section 4, his claim now to only twenty acres appears conservative. There is some evidence, admittedly vague, by which defendant sought to establish a sufficient occupancy of that part of Section 4 lying east of Section 1 and referred to as the south "leg." But such evidence either proves nothing or develops the fact of a prior agreement between complainant and one Hervey, a predecessor in title, which would excise this "leg" from the case and forbid any adverse occupancy thereof from expanding title constructively to the whole south half of Section 4. The learned Chancellor, in denying relief to complainant, was no doubt influenced by the inability of complainant definitely *730 to identify the land so occupied as being in Section 4. This was not a prerequisite to validity of his claim. It is the fact of such possession, and not the knowledge of its legal description, that gives title. If there were uncertainty in complainant's mind whether the land occupied was in Section 4 or in the N.E.1/2 of Section 1, this would be immaterial since he was occupying the land under color of a deed which embraced both. The evidence, however, shows such occupancy to have been in whole, or at least in greater part, in Section 4. 2 C.J.S., Adverse Possession, Sections 217, 218, page 825.
¶6Since adverse possession for the statutory period is of itself at least constructive notice of title, and since such title may not be divested by individual action except by transfer from such holder or loss by subsequent and superseding adverse occupancy, the proceedings by which defendant's predecessor in title, Robertson, sought to re-establish his record title under Chapter 242, Laws of 1924, Sec. 2346, Code 1930, all existing records having been destroyed by fire, did not affect complainant's outstanding title by adverse possession, especially since he was not made a party to such proceedings.
¶7We hold that the evidence justifies the finding that complainant established title by adverse possession to at least a part of the land in suit, which possession was extended to the entire twenty acres involved through the color of title furnished by his deed.
¶8The decree of the court below is reversed, and title to the land in suit is hereby decreed in the appellant and the cause remanded for the adjudication of such other relief as appellant may be found entitled, in conformity with the prayer of his bill and with the views herein expressed.
¶11When considering color of title the question is not whether the instrument relied on as color operates to convey, and to continue to convey, any actual title but whether it appears to do so; and when on the face of the instrument it purports to convey title to the land therein described, it will constitute color although, because of matters de hors the instrument, it conveys no title at all. And the rule is too well settled in this state to be challenged now, that the actual adverse possession, by the colorable grantee, for the statutory period of a part of the tract of land, within the descriptions of the instrument which constitutes the color, extends the adverse possession and the title acquired thereby to the entire tract within the calls of the color, there being no conflicting actual possession.
¶12But refuge is sought to be taken by appellees within the rule that one cannot successfully claim adverse possession under color of title where he has deprived himself of the color relied upon by conveyance to another or has been deprived of the color of title relied on by judgment or decree or by a sale under execution or under a power of sale given in a mortgage executed by claimant. 2 C.J.S., Adverse Possession, section 69, pp. 585, 586. And appellees say that a tax sale should be considered as within that rule.
¶13We may concede the force of that rule when the party relying on adverse possession has by his voluntary act conveyed the premises to another; for by this he has disclaimed the property and cannot then be in the attitude of claiming on the one hand and disclaiming on the other. *732 And we may further concede that the rule will apply to any sale under a judgment or decree in a proceeding to which the adverse claimant has been a party; and we might go even further and concede that the rule would apply to a tax sale where the adverse claimant owned the land or some interest therein, at the time of the levy of the taxes for which the land was sold or was otherwise under a personal duty or obligation to the state to pay the taxes when the sale was made.
¶14But none of these situations was present in this case. The Shepherds did not own any interest whatever in the land when the taxes for which it was sold became a lien thereon, and they had no interest in it when the land was sold for the taxes. They were under no obligation whatever in respect to the taxes. Everything done about the assessment, and the sale thereunder, was as to the Shepherd res inter alios acta. And while the maturity of the tax sale operated to wholly divest the Shepherds of any actual paper title, it had no effect upon their deed as color of title. They had no part in the tax deed. It was as to them wholly in invitum. They did not thereby disclaim, it was something as to which they had had no voice, and had said nothing; and they were not personally obliged to say or do anything about it. They were in no sort of privity with the tax purchaser; and to say that their commissioner's deed did not operate as color of title in adverse possession would be to say that there can be no such thing as color of title in adverse possession against a tax deed, whoever it is that asserts such adverse possession, and we must hold that such is not the law. We think Graham v. Warren, 81 Miss. 330, 331, 33 So. 71, relied on by both sides in the present case, supports the conclusion at which we have arrived, but we rest our decision not upon that case but upon principle, which we have briefly outlined.