73 So. 736 | Miss. | 1916
delivered tlie opinion of the court.
This is a suit for the partition of land instituted by appellant, who claims to be the owner of a one-half interest therein.
In 1887 Dr. T. W. Spruill died seised and possessed of the land, leaving as his heirs at law his widow, two sons, and a daughter, Mrs. Maggie S. Barksdale. In May, 1892, Mrs. Spruill and her two sons, by deed duly executed and recorded, conveyed their interest in the land to Mrs. Barksdale, and she continued the owner thereof until her death, which occurred October 2, 1893. She left surviving her as her sole heirs her husband, H. C. Barksdale, and one son, H. Clay Barksdale, the appellant who was then an infant four years old. In January, 1893, prior to her death, Mrs. Barksdale and her husband executed a deed of trust to Hearn & Co. to secure the payment to him of their joint notes aggregating the sum of three thousand, three hundred thirty-six dollars and fifty cents due January 1, 1894 and 1895, and advancements to be thereafter made by Hearn to them. That the grantors in this deed of trust were husband and wife was not disclosed either in the body or in the acknowledgment thereof. On February 1, 1894, after Mrs. Barksdale’s death, her husband, H. C. Barksdale, executed another deed of trust to Hearn & Co', on “all the interest of the party of the first part” in the land described in the former deed of trust. On March 15, 1898, the deed of trust executed by Mrs. Barksdale to Hearn & Co. was foreclosed and the land bought in by H. C. Barksdale for the sum of four thousand, nine hundred and fifty dollars. The deed executed to him by the trustee pursuant to this sale acknowledged payment of this sum, but it appears from the
The parties defendant to the bill are Herron, Mrs. Learnard, her children, the Walkers, and the parties now holding deeds of trust on the land. The prayer of the
One of appellees’ defenses to tbe bill is that they are all bona fide purchasers. and incumbrancers of tbe land, as the case may be, for value without notice of appellant’s claim to an interest therein.
Appellant denies that appellees are purchasers and incumbrancers of the land for value without notice of his claim thereto, and contends that, conceding this to be true, such defense is not available against him, because: First, the purchaser for value without notice •defense is available only against the holder of a secret equity, and that his interest in the land is legal, and not equitable, for the reason that the purchase thereof by his 'cotenant at the trustee’s sale inured to his benefit; and, second, he was an infant at the time the various deeds and deeds of trust set up by appellees were given.
The court below held that “Herron bought said land with notice of complainant’s interest therein,” that the Walkers “paid a valuable consideration therefor without notice of complainant’s claim,” that Learnard purchased from Herron without notice of complainant’s interest in the land, and that his widow and children are entitled to the protection accorded a bona fide purchaser without notice, except as to the note and interest thereon executed by Learnard to Herron remaining unpaid at the time appellant’s bill was filed, and that Gehlert, Kirkpatrick’s assignee, and the First National Bank of Aberdeen were • innocent incumbrancers for value without notice of appellant’s claim and decreed fhat the only relief to which appellant was entitled was to receive from the Learnards the money due on J. P. Learnard’s unpaid note to Herron. From this decree there is a direct appeal by H. Clay Barksdale, complainant in the court below, and a cross-appeal by Her-Ton.
“(a) The lands were deeded by W. B. Brock and husband, S. M. Brock, in May, 1892, to T. W. Spruill. The nest conveyance is from Jno. B. Spruill and Sarah E. Spruill to Maggie S. Barksdale. The title stood in T. W. Spruill. Why were Jno. B. Spruill and Sarah E. Spruill making a deed to it? What interest had they in the land? That is the human and natural inquiry. An investigation would have shown that they were heirs of T. W. Spruill and would have revealed that Maggie S. Barksdale was an heir also, Jno. B. Spruill, son, Sarah E. Spruill, wife, and Maggie Spruill Barks-dale, daughter, being the only heirs of T. W. Spruill. T. W. Spruill owned the land on the record. A mere, inquiry as to why he did not sign the deed (the most natural inquiry to make) would have disclosed that he was dead and explained .why John E. Spruill, and Sarah E. Spruill signed the deed as his heirs, and that Maggie S. Barksdale was the only heir, she not joining as grantor because she was grantee. Sufficient in this-, 'it seems, to give any prudent purchaser notice.”
In passing we will say that Herron was, of course, charged with notice that the land was owned by Mrs. Barksdale at the time of the execution of the deed of trust by her and her husband to Hearn & Co. Taking up again the language of counsel:
“(b) The next record after the property was deeded to Mrs. Barksdale is the deed of trust signed by Maggie S. Barksdale and H. C. Barksdale to McClellan, trustee, dated January 16, 1898. The title was in Mrs. Barks-dale. Why was H. C. Barksdale signing unless he was the husband, and this land was a homestead?
“(c). The deed of trust provides for one thousand, five hundred dollars advancements, which would indi*867 cate that this land was being occupied and used by the grantors.
“(d) Again H. C. Barksdale, on January 1, 1894, not quite a year later, signed a deed of trust on the same land to A. M. Chandler, trustee, for Hearn & Co. Barksdale had no title to the land. "Why did he sign the deed of trust alone? A mere inquiry would have revealed that Mrs. Barksdale was dead, and then the natural inquiry would he, Who were her heirs?
“(e) Also in this same deed of trust made .in January after the death of Mrs. Barksdale in October conveyed ‘all the interest of the party of the first part in the following land.’ The joint deed of trust had no such provision. "Why this restriction? To answer the question reveals that the grantor had only half interest, and his son, the complainant, the other.
“(f) Next is the deed from McClellan, trustee, to Barksdale, dated March 15, 1898, under the sale of the property under the joint deed of trust — a joint tenant purchasing the property. The same day Barksdale gave the deed of trust to Roane, trustee, for Hearn for five thousand, five hundred dollars, showing any prudent purchaser this was merely a paper transaction— an effort to get the legal title out of Mrs. Barksdale, into Mr. Barksdale.
“(g) But in this very deed of trust given by Barks-: dale the very day he bought the property at the foreclosure sale under all of these suggestive facts we find Barksdale describing himself as a ‘widower.’ Surely this was sufficient to excite inquiry and give notice that Mrs. Barksdale was dead.
“ (h) And again in the deed of trust made by Barks-dale to Roane, trustee, for Hearn & Co., a short timé afterwards, dated April 25, 1898, for five thousand, five hundred dollars, very likely made to correct error in the deed of trust of March 15, 1898, Barksdale is described as a ‘widower.’ ”
That Herron had actual knowledge of the deed of trust from Mrs. Barksdale to Hearn & Co., to which fact reference is also made by counsel, imposed upon him no duty of inquiring into the state of the title other than that with which he was charged by reason of the deed of trust being of record.
The other matters referred to by counsel are not, in our judgment, sufficient to have put Herron upon inquiry. We must hold,, therefore, that he was a purchaser for value without notice of appellant’s claim to an interest in the land.
Assuming for the sake of the argument that appellant’s contention that a bona fide purchaser for value without notice is protected only against the holder of a secret equity, nevertheless Herron acquired a perfect title to the land because of his purchase from Barksdale. Where one cotenant purchases an outstanding superior title to the common property, he acquires thereby the legal' title to the whole of it, but holds such title in trust for the benefit of those of his cotenants who may wish to avail themselves of it by contributing or offering to contribute their proportion of the purchase money. Freeman on Cotenancy (2d Ed.), secs. 154 — 156; Smith v. McWhorter, 74 Miss. 400, 20 So. 870; Dickerson v. Weeks, 106 Miss. 804, 64 So. 731. Which right, as between him and his cotenants, will not be barred by mere lapse of time, but only when the delay to assert it is accompanied by circumstances which give rise to an estopped. Dickerson v. Weeks, supra; Watson v. Vinson, 108 Miss. 600, 67 So. 61. Herron, therefore, by his purchase from Barksdale,
Dickerson v. Weeks and Watson v. Vinson, supra, are not in conflict herewith; for the bona fide purchaser for value without notice rule was not involved in either of those cases. In Dickerson v. Weeks the purchaser of the legal title from the cotenant who purchased an outstanding superior title to the common property had actual knowledge at the time of his purchase of the rights of the other cotenants. In Watson v. Vinson, an examination of the- original record and briefs of counsel will disclose that the subsequent incumbrancers defended not on the ground that they were without notice that Watson held the legal title to the land in trust for his cotenants, but on the ground- that the right of these cotenants to avail themselves of Watson’s purchase was barred because they had delayed doing so for an unreasonable length of time.
That appellant was an infant at the time the land was purchased by his eotenant at the trustee’s sale is immaterial, for the reason that:
“Infants holding an equity in land, when the legal title thereto is acquired by an innocent purchaser, are in no better condition- than they would have been if they were adults.” 22 Cyc. 528; Conn v. Boutwell, 101 Miss. 359, 58 So. 105; Clark v. Rainey, 72 Miss. 151, 16 So. 499.
Since Herron purchased the land for value without uotiee of appellant’s claim to an interest therein, he acquired the complete jus disponendi thereof; consequently the question of notice vel non by Herron’s ven-dees and the persons to whom he and they have executed deeds of trust of appellant’s claim is immaterial,
The decree of the court below is affirmed on the direct appeal, but on the cross-appeal is reversed, and the bill dismissed.
Reversed on cross-appeal, and dismissed.