74 Miss. 747 | Miss. | 1897
delivered the opinion of the court.
It appears from the evidence in this case, as disclosed by the record, that T.D.Payne, on the twenty-ninth of December, 1881, sold and conveyed to Henry Stovall the southeast \ of section 15, township 13, range 4 east, situated in Chickasaw county, Mississippi, for $1,750, to be paid in four annual installments of $437.50 each, commencing November 1, 1882; and that Henry Stovall executed, on the same day, a deed of trust on the same lands, to secure the payment of said four notes to T. D. Payne, B. J. Abbott being trustee, which trust deed was put upon record January 28, 1882, filed January 2, 1882, and Stovall went into or assumed possession of said lands, under said purchase, immediately upon receipt of said deed of conveyance, and held under it.
There is no dispute as to the fact that Henry Stovall was owner of that land, and occupied it as owner during the year 1882, but complainant below (appellee here) contends that, after the
On cross-examination Col. Orr stated: “I remember having a conversation with Judge Frazee. ... I think I further stated to Judge Frazee that I had lately, before that conversation, interviewed Mr. Badenheimer on the subject; that he (Badenheimer) had stated he had no recollection of such acknowledgment. ... I now state that it is probable that, in that conversation, I might have stated to Judge Frazee that I did not then, with the lights before me, remember that it was acknowledged at all. . . . My best recollection is, that his wife signed it. My recollection is, it (the deed) was on Mr. Williams’ desk the last I saw of it.”
This was the testimony upon which alone the lost deed was sought to be established. It was not recorded, and never seen nor heard of again, so far as the record discloses, nor did Mr. Payne ever inquire about it, so far as the testimony shows.
R. P. Williams testified that he is the same Williams who was a member of the law firm of McIntosh, Williams & Orr. Says he has no recollection of the southeast J of section 15, township 13, range 4, but presumes it is what was sold to-Henry Stovall by T. D. Payne; that, during the fall of 1883,.
W. D. Frazee testified: “Some time before the suit of W W. Payne v. Henry Stovall was brought, I had a conversation with W. G. Orr in his office, in which Col. Orr said, as I recollect it, that Mr. Payne came into his (Orr’s) office and handed him a written document or paper, which he (Payne) said was a deed from Henry Stovall to him. I saw Henry Stovall’s name signed to this document, or at least Henry Stovall with a x. Of course I do not know whether Henry signed it or not. I did not read the document. Mr. Orr said he could not say whether the deed was acknowledged at all. Gracey Stovall (the wife) was not mentioned. ’ ’
On cross-examination he said: “I think my memory is as distinct as a mortal mind could be of a thing that occurred that long ago. I reported it to Mr. Baskin, and have talked about it since.” Ques. “ Is it not possible that Mr. Orr might not have stated that he did not know that the deed was acknowledged at all, in view of the fact that he knew that if the deed was not acknowledged under the law it would be no deed ? ’ ’ A.71S. “ Mr. Orr, in that conversation, did not claim that it was a deed. He stated that Mr. Payne brought him a piece of paper, which he (Payne) said was a deed. Said ‘ I did not read it.’ He said he could not say it was acknowledged at all.”
Taking the evidence altogether, it falls far short of the accuracy and strength required to establish a lost deed that is to divest title of lands; and it would seem that but little if any importance was attached to that paper, as it was not seen nor heard of after Payne handed it in to the office of his attorneys, and Payne never looked after it, and the attorneys lost sight of it, and the complainant did not think enough of it to mention it in his deraignment of title in the bill of complaint.
On the twenty-eighth day of February, 1888, W. W. Payne, executor of the will of T. D. Payne and individually, executed a deed of trust to H. S. Caldwell, trustee, for the Dundee Mortgage & Investment Company, by which trust deed he conveyed 2,455 acres of land in Chickasaw county, Mississippi, to secure ten notes of $1,200 each, due on December 1, 1888, and one annually thereafter. In that trust deed was included (by mistake, as appellant claims) the southeast \ of section 15, town
But counsel for appellee — complainant below — contend earnestly that appellee is a Iona fide purchaser for value, without notice of Stovall’s adverse claim, and therefore whatever his right may have been, he lost it by neglecting to record his deed from Payne, and allowing appellee to become purchaser without notice.
Counsel for appellant contend that the record of the deed of trust from Stovall to Payne and Stovall’s possession of the lands in question were sufficient notice, and upon these contentions the case depends.
Counsel for appellee insist that T. D. Payne became the owner of the land in question in 1881, and remained owner thereof until his death in 1887. But the testimony establishes beyond question, and it is not disputed, that Stovall owned the land in 1882. Col. McIntosh swears he wrote the deed from Payne to Stovall and the deed of trust from Stovall to Payne, and both were delivered in 1881. Payne admitted this in his talk with Col.. Orr, in 1883, only claiming that that deed had been destroyed after the crop of 1882.
Counsel for appellee, in reference to the ability of the recorded trust deed from Stovall to Payne to secure the purchase money of this land, to warn purchasers and put them on inquiry, say: “How, then, was an abstractor to find this deed of
The will of T. D. Payne did not describe any lands by numbers, bat devised his property generally to W. W. Payne. He did not own the land in question, and could not devise it. W. W. Payne testifies that he never intended to put the Stovall land in the Dundee trust deed, and that he informed Trustee Caldwell and John M. Judah, when be went to compromise with them, that the Stovall land was in the deed by mistake, and ought not to be there. There is no allegation that the estate of Payne was insolvent. The trust deed was not prepared by Payne nor his attorneys, but sent out from Memphis to be signed, and he signed without knowing the Stovall land was in it.
Now, as to Henry Stovall’s possession. It is not disputed that he was in continuous, open and exclusive possession of the lands in question from 1881 up to the time when this suit was instituted in 1893 — more than eleven years — but it is claimed he was in possession as tenant and not as owner. The place
At the time the Dundee trust deed was executed, February 28, 1888, the suit of Payne v. Stovall, for rent of the land in question was pending in the circuit court of Chickasaw county, first district, where the land lies. Stovall had bonded the ten bales of cotton attached, had employed attorneys, and was fighting the suit on the ground that he was owner, and not tenant, and the unlawful entry and detainer suit between the same parties, commenced in December preceding, if not terminated, was pending and defended in the same manner. So that it seems that Stovall’s possession was notorious and adverse at the very time the trust deed was made and when the sale under it was made, as well as open, exclusive, and continuous.
With all the above facts, and more, before them at the very
The basis of the doctrine of notice is that it is unconscientious and fraudulent to permit a junior purchaser to defeat a prior conveyance of which he has knowledge. Herrington v. Allen & Co., 48 Miss., 492.
The testimony as contained in this record so largely preponderates in favor of the proposition that we may regard it as settled that Stovall purchased and paid for, and received a valid deed to, the lands in question, and the title remains in him unless he lost it by want of notice to the trustee and beneficiaries of the Dundee trust deed.
“It has been settled by numerous cases in this state, commencing with Dixon v. Lacoste, 1 Smed. & M., 70, that the open possession and occupancy of land by the vendee is implied notice of his right.” Strickland v. Kirk, 51 Miss., 795; Perkins et al. v. Swank et al., 43 Miss., 349; Bell v. Flaherty, 45 Miss., 694.
‘ ‘ It has been accepted as the settled law in this state, since the case of Dixon v. Lacoste, 1 Smed. & M., 70, that the occupancy and open possession of land under an unregistered deed of conveyance, or bond for title or other contract of sale, imparts notice to creditors and subsequent purchasers, and gives them the same protection as though these written memorials of title had been recorded.” Taylor v. Lowenstein, 50 Miss., 278.
We are cited to Hiller v. Jones, 66 Miss., 636, but that case holds that possession of land under an unrecorded deed was the equivalent of registration of the deed, while the possession
W. W. Payne became convinced that he was mistaken about Stovall’s admissions making him a tenant, and that the testimony of the witness (Phillips) to whom the old negro gave up the cotton as the agent of Payne, but never turned it over so that the question could be tried, failed to make him a tenant. When the ignorant man invoked the protection of the court, represented by able attorneys, he acknowledged his mistake and dismissed his suit and gave a quitclaim deed abandoning all claim to the land.
The complainant below exhibited his bill, and presented his title to the court, by which action he challenged consideration of and objections to it, and invoked the power of the court to approve and confirm and quiet his title on its own merits, and to cancel and remove as clouds conflicting titles. It is manifest from a careful scrutiny of this whole case, that it is without equity on the part of complainant, and this court is, therefore, compelled to reverse the judgment of the court below.
The final decree of the court below is vacated and set aside, and the cause remanded.