Tinnin v. Brown

53 So. 780 | Miss. | 1910

Whitfield, C.

So far as the agreement in the record that F. M. Brown was the common source of title is concerned, that means no more than that he was once such common source of title; but this does not preclude the defendants from showing, if they can, that they now hold the title through the tax deed made to M. Lowenstein & Brother. Undoubtedly, F. M. Brown was the common source of title; but the defendants may, notwithstanding that, and the agreement to that effect, show that, though he was such at one time, his title has come to them through a paramount valid tax title, if it was valid. We say if it was valid, because we do not now decide anything as to the validity of the tax title. The validity of the sale .for taxes was not questioned below, save for the reason that, as alleged, the twelve months allowed for redemption under the act of April 15', 1876, had not expired. But this objection was properly disallowed. It is also said that the said sale was made on the wrong day of the month; but it is not pointed out why it was made on the wrong day. The matter was very obscurely presented to the court below, and the learned counsel for the appellees does not, in his brief here, assail the tax title at all. We prefer, on this uncertain and obscure presentation as to the validity of the tax deed, to decide nothing as to whether it was valid or not, since it is not now necessary to decision. Whether it was invalid may be shown on another trial.

It is clear, from the testimony in this record, that the appellants had actual knowledge of the deed from F. M» Brown to his wife, made on the 12th day of January, 1878, and, further, that they had actual knowledge of the deed by the auditor, made on the 10th of August, 1876, to Lowenstein & Brother. They must necessarily have had actual knowledge of this fact, since they themselves bought from the heirs of the members of the firm of M. Lowenstein & Brother. But it is equally clear, from this very obscure record, that the appellants are not shown to have had any actual knowledge of the deed from M. Lowenstein & Brother to T. 0. Kinard, of date March 29, 1879, or of the deed from Kinard to F. M. Brown, father of appellees, of date March 20, 1885. The deed from M. Lowenstein & Brother to Kinard is made in the firm name, and is acknowledged in the firm name “M. Lowenstein & Brother, ’ ’ and. is as follows:

“M. Lowenstein & Brother to T. C. Kinard. Quitclaim Deed. Filed for record Jany. 14th, 1885, at three o’clock p. m. Recorded Jany. 14th, 1885. McRae Mosby, Clerk, by B. V. mite, D. C.

“In consideration of two hundred and twenty-nine dollars, we convey to T. C. Kinard the land described as W. % of N. E. % and E. y2 of N. W. %, Sec. 11, T. 7, R. 16 E., containing one hundred and sixty acres more or less. Witness our signature the 29th day of March, 1879. M. Lowenstein & Brother.

“State of Mississippi, Lauderdale County. Personally appeared before me, Wm. S. Patton, justice of the peace of said county, the above named M. Lowenstein & Brother, who acknowledge that they signed and delivered the foregoing deed on the day and year therein mentioned as their act and deed. Given under my hand this 14th day of Jany., A. D. 1885. Wm. S. Patton, J. P. ”

It is said in the case of Schumpert v. Dillard, 55 Miss. 348, that a deed to a partnership conveyed a good title to and vested it in the members of the partnership. The appellants here afterwards, on the 28th of August, 190’5, for the nominal consideration of one dollar, obtained a conveyance of this land by quitclaim from the heirs of the members of the firm of M. Lowenstein & Brother. They therefore have rights growing ont of the registry laws of the state, and the evidence in this record fails to show that they had any actual notice of the deed from M. Lowenstein & Brother to Kinard and from Kinard to Brown, as set out above. The acknowledgment of the deed from M. Lowenstein $ Brother to Kinard is admitted by the counsel for the appellees to be fatally defective, and therefore that deed was not entitled to record, and imparted no constructive notice to appellants, who are third parties. Wasson v. Conner, 54 Miss. 351; Buntyn v. Compress Company, 63 Miss. 94.

It seems to be settled that one partner cannot acknowledge for a partnership, unless he has authority to do so, and this authority must affirmatively appear; authority to make and acknowledge a deed not being presumed. Shirley v. Fearne, 33 Miss. 665, 69 Am. Dec. 375; Walton v. Tusten, 49 Miss. 575. See, also, Sloan v. Mach. Company, 70 Mo. 206. Having not shown any constructive notice, therefore, of the deed from M. Lowenstein & Brother to Kinard, nor any actual knowledge of it, that deed can be of no effect, on the testimony in this record, to defeat the appellants’ title, so far as mere notice is concerned. This suit was begun March 25, 1908, and the deed from the heirs of the members of the firm of M. Lowenstein & Brother to appellants was not made until August) 1905, and then only for a nominal consideration of one dollar. These appellants only paid five hundred dollars for the land to J. B. Hoover, from whom they claim to have bought, who had no title, when the land, according to the testimony, was worth about fifteen hundred dollars. These are suspicious circumstances, strongly going to show the want of good faith on the part of the appellants, and also tending inferentially to' show that they must have had some actual knowledge" of the invalidity of the title.

Irrespective, however, of the mere question alone of notice, constructive under the registry laws, or actual, the principle of law is thoroughly settled that no one can claim the protection afforded an innocent purchaser for value who has not paid value, within the meaning •of the law on that subject. The precise point before us has been squarely decided in this state in Doss v. Armstrong, 6 How. 259, 260. The court there said: “It is true that Armstrong denies any notice of this conveyance, and claims to be a purchaser for a valuable consideration. He has not, however, brought himself within the influence of the rule under which he claims relief. He was a mere volunteer, having paid only a nominal consideration for the release of William Vick’s title, if he had any. This is shown by the deed itself, and it is well settled that a mere volunteer can never claim relief on the ground that he is a bona fide purchaser for a valuable consideration.” It would, of course, be understood that we do not rest this point on the fact that the deed was a quitclaim, but on the fact, the very pregnant fact, that the appellants paid only one dollar for a tract of land shown in the testimony to be worth fifteen hundred dollars. Manifestly the dollar was a purely nominal consideration. Whether, therefore, the appellants had actual or constructive notice of the deed from Lowenstein & Brother to Kinard, they cannot claim the protection afforded to an innocent purchaser for value. See Spicer v. Waters, 65 Barb. (N. Y.) 231, where the court s,ay: “The consideration must be full and fair.”

This brings us to the decisive question on the direct appeal, which is: Was the deed from Lowenstein & Brother to Kinard valid between the parties? The authorities establish the principle that a deed in the firm name'to real estate will convey only the interests of the partners who actually execute it. In this wretchedly unsatisfactory record, it is not made to appear how many partners there were' in the firm, nor how many of them signed this deed in the firm name, and acknowledged it in the firm name. We know,' however, that the legal entity, the partnership, could not personally appear and sign or acknowledge a deed. Some one or more of the members of the firm must have appeared personally, and signed this deed, and acknowledged it. The deed was undoubtedly given to convey his or their interests to ICinard, and it would seem that Kinard would have had an equity to compel the member or members who did not sign to make a conveyance of their interests. It is said in Bates on Partnership, vol. 1, § 296: “But in many states the strict rule has been relaxed, and a deed or mortgage to A. & B., or A. & Co., has been held valid, or at least not void for uncertainty, on proof of identity, doubtless on the principle of ‘id certum quod reddi cerium potest;’ and probably in all states such a deed or mortgage to or by partners in the firm name would be enforced in equity, where the defect could be cured, where the litigation is between partners, or between a firm and its grantee, and there is no dispute as to priorities of other liens.”

At all events, we think this much is certain: That Kinard did get the interests of that member or members of the firm of Lowenstein & Brother who personally signed and personally acknowledged the conveyance. This being true, no decree here can be rendered on the reversal which must follow on the direct appeal; but the cause must be remanded, for full proof on all the points indicated. Since, however, it is not shown by the present record that the whole interest, or what interest, as to the legal title, passed to Kinard by the deed from Lowenstein & Brother, the court below erred in awarding the whole title, on the evidence in this casé, to the appellees. The appellees may have the whole title, but they must show it by proper evidence on another trial.

Coming now to the cross appeal: Complaint is made by cross complainants that the improvements should not have been allowed to the appellants, on the theory that the appellants claim- alone under Brown, father of appellees, with full actual notice that the appellees were the remaindermen, and the father only a tenant by the curtesy; relying upon the cases of Pass v. McLendon, 62 Miss. 580, and Stewart v. Matheny, 66 Miss. 21, 5 South. 387, 14 Am. St. Rep. 538. But the trouble with this contention is that these appellants do not claim under Brown alone, or chiefly, but under their quitclaim from Lowenstein & Brother, without any notice, actual or constructive, of the deed from Lowenstein & Brother to Kinard. On this state of the case, the principles laid down in Cole v. Johnson, 53 Miss. 94, necessarily result in entitling the appellants' to their improvements.

Wherefore the decree of the chancellor in awarding the improvements is correct.

Reversed and remanded on direct appeal.

Affirmed on cross appeal.

Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons indicated therein the decree on the direct appeal is reversed, and the cause remanded, and the decree on the cross appeal is affirmed.