78 So. 623 | Miss. | 1918
delivered the opinion of the court.
This controversy grows out of an interchange of deeds hy two brothers. In 1892 appellant, Starlin Garner, and his brother, ~W. C, Garner, were tenants in common of two separate tracts of real estate, one known as the -home place and the other as the Blessingham place. The two brothers at that time were single men living under the same roof with their mother and sister and engaged in joint farming operations. W. C. Garner decided to get married, sell out his interest in the joint properties, and move west. Accordingly the two brothers traded one with the other, and the exact contract which was then made is now more or less a subject of dispute. The prominent facts as disclosed by this record are that the two took their old deeds, went before a justice of the peace,- and requested the justice of the peace to prepare deeds for their executi'oii. Ap
“That the said party of the first part shall forever warrant and defend the title to the said premises unto the party of the second part, his heirs, and assigns, against the claim of all persons lawfully claiming the same or any part thereof, except on account of taxes ■due from and after the 5th day of February, A. D. 1892.”
In April, 1896, there was a. large balance due upon the deed of trust and the trustee foreclosed whereupon appellant appeared at the sale and bid off the land in Ms own name and received the trustee’s deed. Complainant now deraigns title through the deed of trust and the trustee’s deed aforesaid. In the course of time W. C. Garner died, leaving as his sole heirs his
Proceeding now to the legal question presented, it. is settled law that the execution and delivery of a warranty deed, estops the grantor from thereafter acquiring any adverse title or interest in the land conveyed and that any subsequently acquired title inures to the benefit of the grantee. If the vendor at thq time his deed is made owns only an undivided one-half interest, but his deed purports to convey the entire fee, a subsequently acquired title to the other-half interest passes eo instanti to the vendee. Edwards v. Hillier, 70 Miss. 807, 13 So. 92. It makes no difference how the grantor acquires his belated title; a title through an outstanding deed of trust operates in favor of the grantee. Harris v. Byers, 112 Miss. 651, 73 So. 614. So it is that under previous adjudications in this and other jurisdictions the title acquired by appellant through the deed of W. A. Abrams, trustee, inures to the benefit of W. C. Garner and his heirs, and W. C. Garner at the time of his death owned the
It is accepted law that the warranty of the kind here under review is a warranty against incumbrances. The proof does not show any mistake. The only eyewitness to the transaction was the justice of the peace whose deposition- was taken, and who testifies that the deeds were made in exact conformity to the wishes and directions of the parties. If there was a mistake in the execution and delivery of a deed from appellant to his brother, W. G. Garner, then there was the same mistake in the deed from the latter to appellant ■ in conveying the home place. Each deed conveys the entire fee, and warrants entire interest. It is significant that the attention of the parties was directed to the outstanding
But any parol evidence to contradict the plain terms of the deed is inadmissible, and on this point the chancellor was correct in his rulings and in his conclusions. Appellant could not show by parol evidence that W. C. Garner in fact assumed the indebtedness secured by the deed of trust. Any question on this point has been put at rest by the case of Thompson v. Bryant, 75 Miss. 14, 21 So. 655. The doctrine announced in this case has been referred to with approval in the subsequent cases of English v. N. O. & N. E. R. R. Co., 100 Miss. 575, 56 So. 665, and Dodge v. Cutrer, 101 Miss. 844, 58 So. 208. See, also, Bullard v. Brown, 93 Miss. 106, 46 So. 137; Hightower v. Henry, 85 Miss 479, 37 So. 745. Instead of putting in the deed an express stipulation that the grantqr was to pay off and discharge the deed of trust, it was perfectly competent for the grantor to enter into general covenants of warranty and in this way to obligate himself to free the estate of any outstanding incumbrance. The point we are here stressing is that the contract under attack is a perfectly lawful agreement and not at all unreasonable. By the contract as written the parties must be bound and their rights determined. There' is no question in this case about laches or adverse possession so far as the interests of appellee are concerned. Looking, then', to the deed, appellee is entitled to an undivided one-half interest in the premises and to a proper accounting for
It follows from what he have said that the decree of the learned chancery court must be affirmed on direct appeal and reversed on cross-appeal. The chancellor retained jurisdiction, for purposes of an accounting, .and we accordingly direct that the decree of the trial ■court be reversed on cross-appeal and the cause remanded, with directions that the special master, already .appointed, take and state an account -under the further directions of the chancellor in accordance with the views expressed in this opinion.
Affirmed on direct appeal, and reversed and remanded ■on cross-appeal.
Affirmed.
Reversed and remanded.