Turner v. Bell

109 So. 794 | Miss. | 1926

^* Corpus Juris-Cyc References: Vendor and Purchaser, 39Cyc, p. 1729, n. 88. This suit involves the question of the title to certain merchantable timber conveyed by one Sam E. Hyde to different parties, and the decision depends upon whether the second purchaser had actual or constructive notice of the first sale by Hyde to one H.H. Burgess.

The case, in short, is as follows: Hyde owned merchantable timber on land, and, by deed, conveyed it to Burgess. Burgess failed to record his deed, but soon thereafter he gave a deed of trust on the timber for the benefit of the Merl Lumber Company, and this deed of trust was filed for record.

This deed of trust was foreclosed, and the Merl Lumber Company purchased the timber, and the trustee's deed was placed of record. The Merl Lumber Company then conveyed to V.M. Bell, appellee here, and, when Bell went upon the land to cut the timber, he was enjoined by Turner, appellant here. The injunction was dissolved on the hearing.

Subsequent to the filing of the deed and deed of trust in favor of the Merl Lumber Company, Hyde gave a deed of trust on the same timber to Turner, which was duly filed for record, and, in satisfaction thereof, Hyde conveyed the same land and timber to Turner by warranty deed duly filed for record. Both of these last named conveyances failed to mention therein the prior timber deed in favor of Burgess.

On the hearing of the case, the chancellor held that, since the deed of trust from Burgess and the deed from Wilborn, as trustee, were each filed for record prior to the making of the deed of trust, or the deed from Hyde to Turner, they were constructive notice to Turner of the claim of the grantee therein named. The court also held that Turner had no actual notice of the conveyance from Hyde to Burgess.

The exact point presented is whether or not the recording of the instruments from Burgess to Merl Lumber Company was notice to appellant, Turner, when he subsequently purchased the same timber from Hyde. To put it in different words, did the recorded instrument from Burgess to Merl Lumber Company, and the trustee's deed under the foreclosure of that conveyance, give notice to the subsequent purchaser, Turner, or put him on inquiry as to the claim of the Merl Lumber Company or appellee Bell? We think not.

The conveyance by Burgess was not notice to the subsequent purchaser from Hyde, because the records did not disclose that Burgess ever had any title to convey. Therefore Turner, the subsequent purchaser, had the right to rely upon the record, as showing title in Hyde, when he purchased from Hyde.

There must be some fixed and safe rule with reference to how far a purchaser must examine the records to determine as to who is the owner of a particular piece of property. The abstractor is not required to search all of the records, in order to see whether or not some outsider, unknown to the records, has conveyed the property to some other person. He may safely assume the title to be in the party shown by the records. The title here was shown to be in Hyde, which Turner purchased. It is our opinion that any conveyance by the party not shown by the record to have title could not affect the title of Turner, who purchased from Hyde. The question is clearly settled by the case of Hart v. Gardner, 81 Miss. 650, 33 So. 442.

In view of the conclusion reached, the decree of the lower court is reversed, and judgment entered here for appellant.

Reversed, and judgment entered here.

Reversed.