72 Miss. 78 | Miss. | 1894
delivered the opinion of the court.
The parties to this suit all claim title from one Riley, who, in 1891, was the owner of the land in controversy. On the ninth day of November, A.D. 1891, Riley executed a deed of trust, whereby he conveyed the land to one M. H. Trantham, as trustee, to secure the payment of a promissory note of that date for S3,500, payable to the order of C. H. Pond. This deed contained the usual power of sale if default should be made in the payment of the'secured debt at maturity, and also provided that Pond, or the assignee of the note, might at pleasure substitute any other person in lieu of the trustee, Trantham. This deed was acknowledged before Trantham, the trustee, who was a justice of the peace of the county. The certificate stated only that the grantor acknowledged that he had ‘' signed' ’ the deed, omitting the words ' ‘ and delivered, ’ ’ as required by law. This' deed was filed for record in the proper office on the twelfth day of November.
On May 6, 1892, Riley executed a deed of trust to one Oliver, as trustee, to secure the payment of a debt to W. G. Cocke & Co. of $397.22. This deed also contained a power of sale if the debt secured should not be paid at maturity. Before accepting this security, W. T>. Lester, a member of the firm of Cocke & Co., examined the records, and there saw and read the prior deed, but was of opinion that, by reason of the defective acknowledgment, and because it had been taken by the trustee therein, it was not entitled to registration, and, being of that opinion, decided to accept the deed to secure his firm.
Some time prior to October, 1892, Pond assigned the note executed by Riley payable to Mm to the complainant, Chas. R. Woods. About this time it was discovered that the deed of trust by which this note had been secured had not been so ac-
On November 16, 1892, Riley and Ms wife conveyed the land to the appellee, Mrs. L. A. Garnett. On November 19, 1892, the land was sold under each of the two deeds of trust, the sales being at different places. At the sale under the deed of trust first made, but junior in record (the Pond deed), the appellant became the purchaser. At the sale under the deed junior in date, but the first recorded, the appellee, -Mrs. D. L. Garnett, purchased. The appellant exhibited his bill in this cause to cancel the titles of the defendants, Mrs. D. L. Garnett and Mrs. L. A. Garnett, as clouds upon his own, and to recover possession of the land, they having been let into possession by Riley.
Mrs. D. L. Garnett defends the suit upon the ground that she was a bona fide purchaser, without notice of the deed of trust under which complainant claims title. Mrs. L.' A. Gar-nett defends only as to 160 acres of the land, which, she says, was the homestead of Riley at the time he executed the deed of trust to secure the note to Pond, which deed, she contends, was void as to the homestead, because Mrs. Riley did not join her husband in the conveyance, as is required by law for the sale or incumbrance of the homestead. In the controversy between the appellant and Mrs. D. L. Garnett, the question involved is one of law, the facts being undisputed. In the controversy with Mrs. L. A. Garnett, the question is purely of fact, the parties not differing as to the law, which is plain, and not susceptible of controversy.
2. Where a conveyance is made to one who fails to record his deed until after another has received and recorded a conveyance from the same grantor, but with notice of the first deed, what are the rights of the first grantee against a purchaser from the second, where such purchaser, having no actual knowledge of,the facts, buys after the record of the prior deed? This question is determinable by a construction of our registry act, for, at the common law, a second purchaser of the fee could take nothing, since, by the first conveyance, the grantor would have divested himself of all his estate, and would have nothing to convey. Basset v. Nosworthy, 2 Ldg. Cas. in Eq. and note; Coke on Littleton, 390d.
By our registry act it is declared that the instruments thereby
The qxiestion has never been decided in this state, though in IIarrington v. Allen, 48 Miss., 492, there is a dictum in which Judge Simrall, mistaking the facts of his case, seems to favor the Massachusetts rule. The decisions in Massachusetts and Vermont, while resulting in practically the same end, proceed on irreconcilable and opposite principles. In Massachusetts it is held that the purchaser from the grantee in the deed junior in date, but. senior in record, need not examine the records after the date of the registration of the conveyance to his grantor. Morse v. Curtis, 140 Mass., 112. In Vermont it is held that he is bound by the constructive notice afforded by the registration of the first deed, that it is notice to him of the fact that a deed prior to that of his grantor had been made, but is not notice that his grantor had notice of the first deed; and so the conveyance to the purchaser from the second grantee is preferred in Vermont, not because the purchaser is himself a purchaser without notice, for the registration of the prior deed is notice of its existence, nor because his grantor was a purchaser without notice, for that may or may not be true, but because the purchaser did not know that his grantor was not a bona fide purchaser, and thus, under the Vermont decision, one may secure protection as though he were a bona fide purchaser when neither he nor any one under and through whom he derives title was in fact such purchaser. This rule has no recognition except in Vermont, so far as we have discovered.
We think the Massachusetts decisions are erroneous, because they hold that one not bound by the registry law is protected by it. But for the registry law, where one has conveyed his legal title, he has nothing left to convoy to another, and that other, with or without notice of the prior conveyance, would get nothing, for his grantor had nothing to convey. Now, the statute comes and provides that, though a conveyance of the .class named in the statute may be made, it shall as to certain
3. As to the title asserted by the appellee, Mrs. L. A. Gar-nett, it is sufficient to say that a careful examination of the record satisfies us that no part of the land was the homestead of Riley at the time he executed the deed to secure the debt to Pond. He had rented land for that year from another and lived on it. He had a crop thereon and his household effects and family,- other than himself and wife, confessedly remained there until after the execution of that deed. He went on the
The decree is reversed, and a decree will be entered here canceling the titles of the appellees as clouds on the title of complainant, and that the complainant be at once placed in possession of the land. The cause will then be remanded, that an account may be taken of rents and profits and of the injury done by the appellees in cutting timber therefrom, for all of which the chancery court will award complainants a decree.
Reversed, and decree here.