53 Miss. 154 | Miss. | 1876
delivered the opinion of the court.
The children of John H. Sims, deceased, who claim to be the real owners of certain land, which their father owned at his death, exhibited their bill in chancery, to vacate certain deeds as clouds on their title, alleging that Thomas Sims, executor of their father’s will, had by falsehood and fraud obtained an order of the Probate Court to sell the land, and that said order was void; but that said executor, proceeding under it, sold the land, and himself became the purchaser of it, at an inadequate price, through the intervention of another person, who bid off the land and received a deed from the executor, and the next day conveyed it to the executor, who, after holding” it awhile, conveyed it to his wife and children, reserving to himself the power to dispose of it as trustee for his wife and children; and that, subsequently, said Thomas Sims, as trustee for his wife and children, sold and conveyed to W. D. Ander
We will not disturb the finding of the Chancellor against the title acquired by Thomas Sims, under his sale as executor, but the form of the decree is not correct with reference to the decree in favor of Anderson. It should not vacate and annul the order of sale and deeds, but should declare the wife and children of Thomas Sims trustees of the legal title for the complainants in the bill, and direct a conveyance. It was proper also to have discharged Thomas Sims, as executor, from the charge of the purchase-money of the land in his report to the court, and accounts as executor.
In the circumstances of this case, the answer of Anderson is sufficient to uphold the decree in his favor. The bill discloses a perfect legal title, according to the decree of the Chancellor on demurrer, which is not complained of, in Anderson as grantee of Thomas Sims. That is sufficient to protect him, unless he had notice of the fraudulent conduct of Thomas Sims, as executor. Anderson affirms his purchase, and payment for the land in good faith, without notice of any claim of the complainants. The bill sets forth the deed to Anderson, and shows a perfect legal title in him. The only issue, then, was as to notice to Anderson of the claim of the complainants. There was no evidence of such notice, as matter of fact. But
In Oliver v. Piatt this language is found: “Another significant circumstance is, that this very agreement contained a stipulation that Oliver should give a quitclaim deed only for the tracts; and the subsequent deeds given by Oliver to him, accordingly, were drawn up without any covenants of warranty, except against persons claiming under Oliver, or his heirs and assigns. In legal effect, therefore, they did convey no more than Oliver’s right, title, and interest in the property; and, under such circumstances, it is difficult to conceive how he can claim protection as a bona fide purchaser,” &c. It is observable that the quitclaim deed, in pursuance of a previous stipulation for such a one, was declared to be a “ significant circumstance,” in connection with others in themselves sufficient to deprive the grantee of his claim to be treated as a bona fide purchaser. The
We concede' that, under some circumstances, a quitclaim deed may be a “ significant circumstance ” in the consideration of a combination of circumstances of which it may be a part, but this is the greatest force it can possibly have in any ease. Rawle, in his valuable work on “ Covenants for Title,’’quoting the remark of Story, J., in Oliver v. Piatt, ubi supra, referring to the deed with special warranty, that it wus a “ significant circumstance ” in affecting a purchaser with notice of a paramount title, says, “But there would appear to be equal reason for the opposite argument, that a deed with general warranty was as significant a circumstance, that unless there had been something wrong about the title, the purchaser would not have demanded a general covenant, and that he intended to run the risk of the defect, and rely on the covenant for his protection. In the absence of local usage, it would seem that no presumption of notice can properly arise, either from the absence or presence of unlimited covenants.” Rawle on Covenants for Title (4th ed.), 35. This learned author in a note refers to Woodfolk v. Blount, ubi supra, in the same connection. No other case is referred to. There is no reference to the subject of a distinction between quitclaim deeds or deeds with special covenants, and those with general covenants of warranty, as a protection to bona fide purchasers, or as a significant circumstance to put one on inquiry, in the full and learned discussion of bona fide purchasers by the English and American editors of Leading Cases in Equity, in connection with the case of Basset v. Nosworthy, 2 Lead. Cas. in Eq. (3d Am. ed.) 101, except to remark, “ But there is some difficulty in assenting to a dictum in Oliver v. Piatt, 3 How. 333, that taking a deed with a covenant of special warranty is sufficient to show a doubt of the warrantor’s title,” &c. The case of Le Neve v. Le Neve, 2 Lead. Cas. in Eq. 127 et seq., presents an exhaustive discussion of the subject of notice, as considered by the
Conveyances by parents to children, and by husbands to wives, we suppose, rarely contain covenants of warranty. In the several cases in which it has been said that a quitclaim deed is evidence of a doubtful title, the controversy was with the grantee in such deed. We have shown it to be erroneous even then. But in the case at bar the deed to Anderson contains a covenant of general warranty, and the quitclaim was to his vendor. If it were true that his vendor was deprived of the character of a bona fide purchaser, because he held by quitclaim, according to the dieta we have been combating, the bona fides of Anderson, as indicated by his taking a deed with covenant of general warranty, should protect him against the mala fides of his vendor.
The decree in favor of Anderson is correct.
The decree will be reversed, and a decree entered here, dismissing the bill as to Anderson, and declaring the wife and children of Thomas Sims trustees of the title of that land not conveyed to Anderson, and directing a conveyance to be made by them to the complainants, who are children of John H. Sims, deceased, and appointing a commissioner to execute such conveyance, and discharging Thomas Sims, executor, from the charge of the purchase-money of the land in his accounts as executor.
The costs of both appeals will be taxed on Sarah M. Chapman and her co-complainants, and Anderson’s costs, in both courts, will be taxed against them.