Kirby v. Bank of Carrollton, 59 So. 10

Kirby v. Bank of Carrollton

59 So. 10 | Miss. | 1912

Mayes, C. J.,

delivered the opinion of the court.

Kirby was not made a party to the foreclosure proceedings instituted by the bank for the purpose of hav;ing the property in question sold under the trust deed executed to it by L. J; Henderson. As Kirby was not made a party, he is, of course, not affected by that suit. .At the time the bank acquired its interest in the land •'from L. J, Henderson, it is beyond dispute that A. M. Kirby was in possession of the land, holding a written contract from Henderson, showing that he had paid for .and owned one-half interest in the property. The con*197tract which Kirby held was in form a receipt, showing that he had paid Henderson five hundred and seventy-five dollars for a half interest in the place, and the receipt further recited that A. M. Kirby then resided on the property. This receipt further specifically described the land by-metes and bounds. As Kirby was in possession of the property under this contract, it was notice to the world of his rights and equities, and the interest of the bank, acquired in the land through Henderson, is subordinate to the interest which Kirby had in the same property. This is the law as declared by every- decision rendered by the court where the question was involved. Taylor v. Lowenstein, 50 Miss. 278; Strickland v. Kirk, 51 Miss. 795; I. C. Railroad Co. v. Sanders, 93 Miss. 107, 46 South. 241; Bolton v. Roebuck, 77 Miss. 710, 27 South. 630; Allen, etc., v. Milstead, 92 Miss. 837, 46 South. 256, 131 Am. St. Rep. 556.

Reversed and remanded.

Suggestion of error filed cmd overruled.