Gordon v. Anderson

44 So. 67 | Miss. | 1907

Oalhoon, J.,

delivered the opinion of the court.

On February 27, 1905, Anderson filed his bill against- Gordon to cancel a conveyance executed by L. J. Staten to Gordon on December 21, 1885, on the ground that it was executed with intent to defraud creditors and was a cloud on his title, which he claims to derive from a sheriff’s deed made to one Ezell, his vendor, upon an execution from a law court of date December 6, 1886. Both the deed sought, to he canceled and the sheriff’s deed conveyed the saíne property, consisting of two tracts of land, one of sixty acres and the other of seventy-five acres, 'of which the sixty-acre tract was cultivated and the seventy-five-acre tract in woods; the two tracts being some distance apart, about a mile or less. On December 21, 1885, the date of the deed from L. J. Staten to Gordon sought to be canceled, it is admitted by the bill that L. J. Staten was in the “possession and ownership” of both tracts. The- deed to Gordon was a warranty deed duly executed and acknowledged, and was put on record the day of its execution, and Gordon took actual possession of the sixty acres embraced in the deed, upon which there were some improvements, and held it and the seventy-five-acre tract under notorious claim of ownership from that time on continuously up ■ to the date of the commencement of this suit, nineteen or twenty years. He notoriously claimed it all, arid paid taxes on all of it from the date of his purchase. On February 13, 1886, execution was issued on the judgment of Ezell, levied on both tracts, and they were sold on August 2, 1886, by the sheriff, and purchased by E. J. Ezell, and the sheriff made Ezell a deed conveying both tracts, of date December 6, 1886, which deed was also recorded on the day of its execution. Now, with this possession and claim of possession by Gordon continuing until February 24, 1905, E. J. Ezell for the recited consideration of only $25 executed to Anderson a deed of conveyance of the land, and just three days after that, on February 27, 190.5. Anderson filed this bill against Gordon, charging, as we have said, that the deed of L. J". Staten to him in 1885 was made with intent to defraud Ezell, and that the deed from Staten to Gordon “was carefully concealed and not discovered until September, 1904, and was wholly unknown either to Anderson or Ezell until after that time, after the exercise of reasonable diligence to discover the same.” The bill charges that Staten was “seised and possessed” .of both tracts when he made the deed to Gordon, and the answer admits this. The answer admits Staten’s ownership and possession of. the land, and the purchase by Gordon in 1885, and the judgment in favor of Ezell, and the sale of the land to him in 1886, but denies all fraud or concealed fraud and sets up his ownership and possession and the ten-year statute of limitations. The final decree sustained Gordon’s title to the sixty-acre tract, but canceled Staten’s conveyance to him as to the seventy-five-acre tract.

We approve the conclusion of the chancellor that Gordon cannot be disturbed by Anderson as to the sixty-acre tract, and affirm his decree as to that on the cross-appeal, and proceed now to consider that part of the final decree canceling the conveyance of Staten to Gordon of the seventy-five-acre tract. The law is plain that a period of ten years bars; but, in case of concealed fraud, the right to sue “shall be deemed to have first accrued at, and not before, the time at which such fraud shall, or with reasonable diligence might, have been first known or discovered.” The fact that the seventy-fiveacre tract was woodland, and not in actual possession by Gordon, has no effect in this case on the statute of limitations, because, when Staten, the common source of title, conveyed to him, he was, as admitted, “seised and possessed” of this land. As to these litigants he was then the owner, and the law in such eases attaches possession to the title, and it went to Gordon with the conveyance, and not as in case of a mere intruder, who must be' in actual occupation to invoke the statute. The deed was valid on its face, valid forever as against Staten, and voidable by his creditors only on attack seasonably made. On this conclusion the seventy-five acres are precisely within the ruling of the chancellor in Gordon’s favor as to the sixty acres of which he was in actual occupation.

We now consider the main question, which involves both tracts, whether, conceding that Gordon’s deed was made to defeat Staten’s creditors, ten years elapsed before this suit, when the fraud was, “or with reasonable diligence might have been, discovered”; and this we answer without hesitation in the affirmative. To hold otherwise would be, on the facts here, a judicial repeal of a most wholesome section of the statute of limitations. It is perhaps enough to say that Ezell, who got his sheriff’s deed nearly a year after Gordon’s was had and recorded, and who quitclaimed nearly twenty years afterward for the pitiful sum of $25 to Anderson, who brought this speculative suit three days after, is still alive, and neither of them testifies at all, nor is there the slightest effort to show that there was no notice of the fraud, or of facts reasonably stimulative to inquiry, or of any diligence to ascertain the real situation, or that the fraud was not discovered or known more than ten years before this suit. This had to be shown, because, if known or suspected on the facts of this record, Anderson has no case. On silence these must be presumed against him and Ezell. If known, that ends the case. If not, the ignorance and diligence must be shown under the authorities. See the compilation in appellant’s brief and the latest ruling here, Jones v. Rogers, 85 Miss., 802, 38 South., 742.

Eut, aside from w’hat has been said, it seems only necessary to consider the salient features of this case. The defendant, Gordon, received his deed on December 21, 1885, recorded it the same day, immediately went into possession of the open land, had all assessed to him, and immediately commenced and continued to pay all the taxes on it, rented out the cleared land, and assumed every claim of ownership, which was well known to the community. Ezell’s conveyance from the sheriff was of date nearly a year thereafter, and he put it on record in that year. The bill before us was not filed until nearly twenty years after Gordon’s deed; Gordon being all the time in possession, claiming and paying-taxes, while Ezell never paid nor offered to pay any of the taxes, nor are the taxes even tendered or offered to be refunded in the bill before us. It' is also undoubtedly true that Ezell had actual notice of the conveyance to Gordon and afterwards had the land sold under the sheriff’s deed. It is furthermore testified to without dispute that one of the witnesses applied to Ezell to huy the land from him, who declined to sell because his “papers were not fixed right,” and he testifies that both Gordon and Ezell claimed the land, and “most of the people about there said Mr. Ezell had the best claim to it.” It is therefore plain to us that it was a subject of neighborhood talk, and that Mr. Ezell, with full knowledge, as must be attributed to him, slept quietly for nearly twenty years, and then sold it for a song to Anderson, who brings this suit.

We refrain from discussing the authorities. The briefs of counsel are exhaustive, and we do not care to add to them.

This case is affirmed on cross-appeal, reversed on direct appeal, and decree will he entered here dismissing the hill.