Horne v. Nugent

74 Miss. 102 | Miss. | 1896

Woods, J.,

delivered the opinion of the court.

1. That there was due execution of a deed from Saffold to Horne and Humphries, and that there was delivery of the same, has already been determined by us. Saffold v. Horne, 72 Miss. With the additional evidence found in the transcript of the present appeal (including that of Horne, improperly excluded below), the due execution and delivery of the conveyance is brought out in clearer light.

2. That this conveyance was the proper subject of recordation is clear. It is certain that the acknowledgment to the deed was not taken on Sunday, though, by a mere clerical mistake such appears to be the fact.

3. That after 1874, when the deed was put to record, every one had constructive notice of the title of Horne and Humphries, and was bound thereby, unless relieved in some way thereafter, is not denied.

4. That Saffold permitted the lands to be sold for nonpayment of taxes for the purpose of re-acquiring title to the same, with all clouds removed by a sale to one selected by him for that purpose, and a reconveyance after the expiration of the period of redemption, is fully and clearly shown by the evidence of Judge Henderson, as is Henderson’s connection with that transaction. Henderson was the mere conduit through which Saffold sought to have his title to an undivided one-third interest in the lands flow back after a tax sale, freed from all defects and doubts, whereby he would be vested with the fee to the entire body of lands. No one can doubt Saffold’s purpose or his attempt to carry it out through Henderson.

5. That the Union Investment Company had actual notice of this scheme of Saffold, and of Henderson’s want of, and disclaimer to, any interest in the lands, at and before its acquisition of title in July, 1887, not only satisfactorily appears in the deposition of Henderson, but is proclaimed with myriad voices by the entire transaction, begun in February and ended only in July, in which and everywhere Saffold is treated as the real owner, and Henderson as in such attitude as to the lands as not to require any participation, on his part, in any negotiations leading to the sale. And when the sale occurred, as in every instance preceding it, Saffold was treated as the owner. The $500 cash was paid to Saffold; the $1,800 bank check was made payable to Saffold, and given to him, and the certificate showing that the railroad company was to issue its stock to the amount of about $7,000 was made out in Saffold’s name, and delivered to him. According to Judge Henderson (and his evidence is not at all disputed here), he only united finally in the deed with Saffold to the railroad company because of Saffold’s request, in which the representative of the investment company united, as he (Henderson) thinks. No impartial man can arise from a full study of this whole record without an abiding conviction that the investment company had full notice of Henderson’s connection with the lands and his want of interest in them, and that the company knew exactly what it was doing and what Saffold had done. The company had notice of the title of Horne and Humphries by the record of their deed, and, to our minds, it is clear that the company had actual notice of Henderson’s connection with the lands and his want of any beneficial interest in them. The foundation stones of the company’s title being thus torn up, that of purchasers at execution sales claiming thereunder, must be uprooted also. Such purchasers are volunteers, and take only such title as the execution debtor had, and with all its infirmities.

We have already said that the deposition of Horne was improperly excluded on the hearing below, and we restore it, on examination by us of the case. Saffold’s estate is no party to this litigation, and can in no way be affected by it. By his deed to the company, he guardedly warranted specially only. With Horne’s deposition restored, there remains no pretense for the assertion of the doctrine of estoppel against him. He neither knew of nor participated in the sale from Saffold to the investment company. In his deposition, he says he first knew that Saffold had sold some lands to the company after the transaction had been completed, and after he and Saffold had left Mississippi City, the place where the sale was effected, and, in the absence of any and all evidence in conflict with this, his statement must be taken as true.

We do not concur in opinion with the learned court below in the deduction which it drew from the presentation of exhibit to cross-interrogatory 12, in the deposition of Captain Hardy, nor do we attach that importance to the possession of this exhibit by the solicitor of Horne which the court below did. If, however, it was of that importance, on the showing made, the court should have reopened the case, that Horne might have been examined as to his possession of the paper.

Reversed and remanded.