Atkinson v. Greaves, 70 Miss. 42

Atkinson v. Greaves

70 Miss. 42 | Miss. | 1892

Cooper, J.,

delivered the opinion of the court.

It is unnecessary to consider whether the evidence of complainants is sufficient to establish a resulting trust in their favor in the lands in controversy by reason' of the payment of the purchase-money by their deceased mother.

Conceding that their father, S. A. D. Greaves, to whom the land was conveyed, paid for it with the money of his wife, and that a trust resulted to her, and that by her death the complainants succeeded to her right, and might have established the trust against S. A. D. Greaves, or against any one claiming under him, other than a purchaser in good faith, the complainants must fail in their suit, because the defendant’s title is derived through a purchaser for value, and without notice.

The lands were conveyed to 8. A. D. Greaves in the years 1855 and 1858. He was in possession in the year 1868, and, being then indebted to Estlin & Co. in a sum exceeding thirty thousand dollars, secured an extension of time for the payment of the debt by executing a deed of trust upon the land to Erank Smith, as trustee, with power of sale for the payment of the debt if it should not be paid at maturity. The abandonment by Estlin & Co. of a present right of action, and the acceptance of an obligation in lieu thereof, payable in futuro, constituted them purchasers for value, and it is not pretended that they had any notice of the secret equity of complainants. Schumpert v. Dillard, 55 Miss., 348; Basset v. Nosworthy, 2 Leading Cas. in Eq. (White & T.), 1.

Though the defense of bona fide purchaser is an affii’mative one, and must be pleaded and proved by the defendant, proof of payment of the consideration is prima facie evidence of the want of notice, and devolves upon the complainant the burden of establishing the notice. Basset v. Nosworthy, supra.

The complainants’ counsel insist that, even though Estlin. & Co. were purchasers for value, the evidence does not show that the defendant has succeeded to their right, but that he holds under a purchaser who bought under a decree in bank*46ruptcy against Greaves, and acquired only such right as the-bankrupt had. In this, counsel is mistaken. It is true that Greaves was adjudged a bankrupt on his own petition,- and in his schedule embraced the land in controversy, together with several thousand acres of other land in which he had. only a life-estate, and stated that his interest in all the land was that of a life-tenant, and that the children of his deceased wife were remainder-men in fee; but the sale was not of such interest only as the bankrupt had in the land. Smith,, the trustee in the Estlin & Co. security, had advertised the land for sale under the power of the deed of trust, but the-sale was, upon the application of the assignee in bankruptcy of Greaves, enjoined by the bankrupt court. Afterwards the assignee and Smith, the trustee, joined in a petition to the court to sell the land. The assignee stated to the court,, in a separate petition, that the interest of the bankrupt was-only that of a life-tenant; but the decree of sale was that, “the interest of said bankrupt, and that conveyed to said trustee in and to the lands” should be sold, and the report-of sale shows that the commissioner sold the whole interest, in the land.

It is true the purchaser of the land got only such title as the'bankrupt had or had conveyed by the deed of trust to secure the debt of Estlin & Co. That interest, as to the-greater portion of the land, was only a life-estate, for the reason that the bankrupt could surrender to his creditors only his interest in the land, and because, as to the land other than that now in controversy, Greaves had never had a legal title, but the title was in his deceased wife, and, after her death, in her heirs at law. So that, as to such other lands, the conveyance to Smith, as trustee, passed only a life-estate. But, as to the lands in .controversy, the trust-deed, as we have seen, conveyed the fee, and neither the statement of the bankrupt in his schedule nor that of his assignee in his petition could limit it to a life-estate.

It follows, from what we,have said, that the defendant, At*47kinson, occupies the position of a bona fide purchaser, and, therefore, that complainants can have no relief against him.

The decree of the court below is reversed, and complainants’ bill dismissed at their costs.