Summary
In Lincoln v. Mills, 191 Miss. 512, 2 So.2d 809 (1941), the plaintiff sought to eject the current occupants of real property, which she had purchased at a foreclosure sale, while the defendants claimed that they had acquired title via adverse possession.
Summary of this case from O'Neal Steel v. MilletteOpinion
No. 34624.
June 9, 1941. Suggestion of Error Overruled September 22, 1941.
1. HUSBAND AND WIFE.
Where husband had lease which contained option of renewal forever, but the lease was not renewed on its expiration, subsequent execution of lease to the wife by successor to original lessors furnished wife with "color of title" so as to enable her to obtain title by "adverse possession" to the land on which husband and wife resided.
2. HUSBAND AND WIFE.
Where wife holds homestead under color of title arising from a recorded conveyance in her name, and evinces her claim by acts of ownership and control, all to the knowledge of her husband, the wife may acquire complete title by "adverse possession" for the statutory period.
3. HUSBAND AND WIFE.
Evidence established that wife obtained, as against her husband, title to land on which the parties resided by "adverse possession" through assertion of ownership, and exercise of use and control for the statutory period under color of title.
4. HUSBAND AND WIFE.
The maturing of title to land, on which husband and wife resided, in the wife by adverse possession operated completely to divest, not only the husband of any claim or right of title thereto, but also all creditors or lienors claiming through him, since title of the wife was not a "derivative title" but an "independent paramount title."
ON SUGGESTION OF ERROR. (In Banc. Sept. 22, 1941.) [3 So.2d 835. No. 34624.]HUSBAND AND WIFE.
Where husband who had a lease which contained an option of renewal forever executed a trust deed before expiration date, but lease was not renewed on its expiration, subsequent execution of lease to wife by successor to original lessors enabled wife to obtain title by adverse possession to land on which husband and wife resided as against mortgagee and his alleged successor in title, particularly in absence of showing of fraud or mistake and in view of fact that transaction was in the open and that public record was made thereof, since when lease expired all of mortgagee's rights therein fell with it.
ANDERSON, J., dissenting.
APPEAL from the chancery court of Lowndes county, HON. T.P. GUYTON, Chancellor.
Pollard Hamner, of Greenwood, and John F. Frierson, of Columbus, for appellant.
First Point: The Sixteenth Section upon which a part of the City of Columbus lies was originally leased to various individuals under lease expiring August 1, 1920, and carrying the provision that such leases were "renewable forever."
(a) Was this a vested right in the lessee and his assigns?
(b) Could the right of renewal be taken away from the lessee and his assigns? If so, how?
(c) If the lessee and his assigns held a vested right to the renewal did this operate to protect the mortgagee? Street v. City of Columbus, 75 Miss. 822; 2 Underhill on Landlord Tenant 1391, sec. 815; Crenshaw-Gary Lumber Company v. Norton, 111 Miss. 720, 72 So. 140; Newhoff v. Mayo, 48 N.J. Equity 619, 27 Am. St. Rep. 455; Burns v. City of New York, 213 N.Y. 516, 108 N.E. 77, Ann. Cas. 1916C, page 1093; Phyfe v. Wardell, 5 Paige Ch. 268, 28 Am. Dec. 430.
Second Point: (a) Assuming that the City of Columbus did execute a lease to the property in question to Mrs. A.H. Moore on August 1, 1920, when the title was in E.S. Moore, this lease was void because at that time the right to renewal was in E.S. Moore, and the renewal lease necessarily ran to him and the City of Columbus was powerless to pass a title to anyone else.
(b) The lease to Mrs. A.H. Moore from the City of Columbus in 1925 depended for its validity on the issuance of a prior lease in 1920, and recited in its face that it was issued "in lieu of a lease made to the said Mrs. Alice H. Moore prior to August 1, 1920." If a lease was indeed executed prior to August 1, 1920, and was void, an attempted lease in lieu thereof would likewise be void as without any consideration therefor and should be cancelled.
Mississippi Laws of 1914, pages 496, 497.
Third Point: Assuming that the lease executed on October 20, 1925, to Mrs. Alice H. Moore was valid, appellant contends that as the wife of E.S. Moore, Alice H. Moore could acquire no title contrary to his, or affecting the lien of his mortgagee, the appellant; that on account of the fiduciary relationship between man and wife, such title as Alice H. Moore acquired under the renewal lease was held by her as constructive trustee and in trust for E.S. Moore and protected the rights of his mortgagee on the property covered by the lease.
26 R.C.L. 1232, 1233 and 1234, sections 78, 79 and 80; 25 C.J. 1118; 125 Am. St. Rep. 350; 2 Words Phrases (2nd Series) 529; 65 C.J. 483, sec. 229bb; Brison v. Brison, 75 Cal. 525, 7 Am. St. Rep. 190; Miss. Code 1930, sections 1940, 1942 and 1943; Allen v. Poole, 54 Miss. 324; Harrison v. Harrison, 56 Miss. 175; Wise Bros. v. Hyatt, 68 Miss. 714; Cohea v. Hemingway, 71 Miss. 73; Hemingway v. Seale, 87 So. 446; Whitfield v. Miles, 58 So. 8; Robinson v. Lewis, 68 Miss. 69; Cameron v. Lewis, 59 Miss. 139; 26 R.C.L. 1249; 15 R.C.L. 903-904; Extensive note 7 A. E. Ann. Cas. 287, et seq.
Fourth Point: A renewal trust deed was executed on October 10, 1924, reciting that it was given in renewal of the original trust deed. This was not a new obligation on the alleged homestead property, and the statement in the body of the trust deed that it was in renewal of the original trust deed carried the lien of the original trust deed to the maturity of the renewal trust deed, and therein differs from a case where another debt was created and undertaken to be imposed on the homestead property without the signature of the wife. A wife cannot move on mortgaged property and by the mere claim of a homestead right defeat a valid existing mortgage on the property.
McFarlane v. Plant, 185 Miss. 616, 188 So. 530; Smith v. Scherck, 60 Miss. 491; Minor et al. v. Interstate Gravel Co., 130 Miss. 553, 94 So. 3; Hambrick et al. v. Jones, 64 Miss. 240.
Owen Garnett, of Columbus, and Will E. Ward, of Starkville, for appellees.
In the very outset we wish to make it clear that appellee's case was presented in the Court below squarely upon the issue of Mrs. Moore's adverse possession and stands upon that issue on appeal. Hence the correctness of much of appellant's argument may be conceded until it reaches the point where the bar of limitations falls across its path.
It might even be conceded that in 1920 some secret arrangement between Mrs. Moore and her husband may have created a constructive or resulting trust in Mr. Moore, although there is no proof in the record to sustain such a conclusion. The fact would still remain that on October 20, 1925, all secrecy disappeared and with it all resulting or constructive trusts that might arise out of fiduciary or confidential relations between husband and wife. For on that day Mrs. Moore recorded her title and by so doing told the world, Mr. Moore and his mortgagee included, that she claimed the property in her own right, and twelve years elapsed thereafter before that claim was assailed.
The law relating to the subject of adverse possession is relatively free of complexities and is in general well defined.
With the abolishment of disabilities of coverture adverse possession operates between husband and wife, 2 C.J.S. 677, 30 C.J. 580, note 11; Collins v. Lynch, 157 Pa. 246, 37 Am. St. Rep. 723, and the statute runs in favor of the wife as against the husband where they live together on the property if the wife holds the title and the husband's occupancy is by her permission. Hartman v. Nettles, 64 Miss. 495, 8 So. 234.
Even a void tax deed is sufficient to give color of title.
Hamner v. Yazoo Lumber Co., 100 Miss. 349, 56 So. 466.
Constructive and resulting trusts, when known to the cestui que trust by actual or constructive notice ripen into title by adverse possession.
65 C.J. 1027, 1028.
Appellant labors with a heavy oar in an attempt to avoid the force of the decision in Hartman v. Nettles, 64 Miss. 495, 8 So. 234.
Pollard Hamner, of Greenwood, and John F. Frierson, of Columbus, for appellant, in reply.
It is impossible for a wife to acquire title by adverse possession against the husband, to the prejudice of a prior existing mortgagee or other valid lien holder.
Counsel for appellees rely on the case of Hartman v. Nettles, 64 Miss. 495, 8 So. 234. That was an unusual case, unusual circumstances, and to the mind of the writer it was properly decided.
The case of Massey v. Rimmer, 13 So. 832, 69 Miss. 667, is somewhat similar.
These two cases in our Mississippi reports hold that a wife may acquire title by adverse possession against her huband, but the circumstances are entirely different. In neither the Massey case nor the Hartman case was there any fraud possible. There were not shown in either case to be any outstanding lien holders at the time the adverse possession began to run, that is, at the time the color of title was acquired.
The Hartman case cites Niles v. Davis, 60 Miss. 750, without signifying particularly the point on which it was cited. The Niles v. Davis case had no question of adverse possession between husband and wife, and simply decided the point that occupancy under a parol sale can ripen into a title by adverse possession to the land actually in possession, that is, to the land under fence. It goes on further to say that one claiming under a written record title has a constructive possession to the extent of the boundaries described in his deed.
See 30 C.J. 579, section 111; Burcham v. Roach et al. (Ind.), 125 N.E. 463; Seymour v. Lamb et al., 185 So. 824, 185 Miss. 37; 1 R.C.L., Sec. 70, p. 748; Gafford v. Strauss, 89 Ala. 383, 18 A.S.R. 111.
There is the right and duty in the husband, as in any debtor, to renew or pay valid debts and valid liens.
See Hambrick et al. v. Jones, 64 Miss. 240, 8 So. 176; Smith v. Scherck, 60 Miss. 491.
On these cases we, therefore, submit that the renewal by E.S. Moore, even after claim of homestead began, was valid, and for such renewal there was no need or requirement for the signature of Mrs. Moore.
See Section 2154 of the Code of 1930.
One who purchases real property subsequent to a record mortgage takes the property cum onere.
See 41 C.J. 557, Sec. 514; Dean Oliphant et al. v. De Lezardi Company, 24 Miss. 424; Plant et al. v. Shryock, 62 Miss. 821; Benson v. Stewart, 30 Miss. 49; and Green v. Supervisors, 58 Miss. 337.
The doctrine is too well established in Mississippi. Even if Mrs. Moore could acquire title against Mr. Moore she could not have acquired title against his mortgagee.
Argued orally by John F. Frierson and W.M. Hamner, for appellant, and by Will E. Ward, for appellees.
Appellant's suit in ejectment was transferred to the Chancery Court, whereupon she filed her bill setting up that she was the owner of lot No. 7 of square 60, north of Main Street in the city of Columbus. This claim was sought to be based upon her purchase of this property at a foreclosure sale under a deed of trust executed by E.S. Moore in favor of C.L. Lincoln. The defendants are the heirs at law of Mrs. Alice H. Moore, who was the wife of E.S. Moore.
The salient facts as shown by the testimony and by stipulation of counsel are as follows: This property being part of Sixteenth Section School Lands, was held by E.S. Moore under a ninety-nine year lease, dating from August 1, 1821. This lease, executed by the trustees of Franklin Academy, was "renewable forever" at the option of the lessee. (For history of these lands, see Street v. City of Columbus, 75 Miss. 822, 823, 23 So. 773.) It expired August 1, 1920. Prior to its expiration date E.S. Moore executed a deed of trust in favor of C.L. Lincoln to secure an indebtedness in the original sum of $1,878. Upon the expiration of the lease it was not renewed by E.S. Moore, although the records of the City of Columbus show that the sum of $5 was fixed as a charge for drafting renewal leases, and, further, that a receipt dated August 31, 1920, was by it issued in the name of E.S. Moore in the sum of $5.50, reciting that $5 was for attorney's fee and fifty cents was for notary fee for renewal lease.
The deed of trust referred to was dated June 12, 1917. About a year after the expiration date of the lease on August 1, 1920, E.S. Moore and his wife, who had theretofore lived on other property, moved upon the property here involved and continued to occupy same as their home until their deaths, in the years 1936 and 1938, respectively. The deed of trust was marked satisfied and canceled by C.L. Lincoln by marginal notation dated October 10, 1924, which recited that a new renewal note and trust deed had been executed. A new deed of trust to secure the sum of $2,600 was in fact executed the same day, and this was later foreclosed and trustee's deed executed September 29, 1937, to appellant.
In the meantime a lease to the property was executed by the City of Columbus (successors to the trustees of Franklin Academy) to Mrs. Alice H. Moore. This lease recited that it was "made in lieu of a lease made to the said Mrs. Alice H. Moore prior to August 1, 1920." It was dated October 20, 1925, and on that date duly lodged for record. Mrs. Moore resided thereon until her death thirteen years later. Upon the hearing the trial court decreed that the complainant (appellant) was not entitled to the property nor to the relief prayed for.
There are many interesting questions presented by appellant relating to the status of Mrs. Moore as a resulting trustee or trustee ex maleficio holding this property under her lease for the use and benefit of the mortgagee, C.L. Lincoln, who had the right to assume and request that the renewal lease be executed to E.S. Moore, who alone had the option to renew. We shall not discuss these contentions, since appellees base their rights solely upon title by adverse possession through the ownership, use and control exercised under the color of title given by the lease to their mother, Mrs. Alice H. Moore. Upon the issue of adverse possession certain matters in pais are relevant. These include collection of rents on the property by Mrs. Moore prior to acquisition of her lease, and the payment by her of taxes upon assessments in her name after 1935. For a greater number of years, however, the land was assessed to Mr. Moore and tax receipts issued in his name. In 1923, 1924 and 1931, E.S. Moore, by marginal notations and a renewal deed of trust, acknowledged the indebtedness to C.L. Lincoln, asserting thereon that the property was not his homestead. In 1927 E.S. Moore gave a warranty deed to the property to L.J. Barksdale, a son-in-law, who in turn conveyed it back in 1931.
These acts are such as would be relevant upon an issue of adverse possession to be resolved alone by circumtantial evidence. Yet the appellees' claim is based upon more solid ground. The lease was issued to Mrs. Moore by the city of Columbus in 1925, and the uncontradicted testimony shows that the husband not only had constructive knowledge of its execution, but had actual knowledge of its contents. On several occasions he had shown the lease to his daughters, and assured them that his wife owned the property. The children, upon these assurances during his lifetime, had expended the sum of $836.20 for repairs, in order that their mother might be provided with a comfortable home. Any attempt to reconcile all the acts of the several parties with any theory deducible from such acts as mere circumstances must fail. The contentions of opposing counsel, although vigorously asserted, are considerately restricted to charges which fall short of implications of fraud or connivance. It remains clear, however, and it is controlling, that there was at least color of title in Mrs. Alice H. Moore through the lease to her, and her assertions of ownership and control thereunder for over ten years, all of which was with the knowledge and consent of the husband.
Regardless of whether a wife may be permitted to acquire, as against her husband, title to the homestead by the mere assertion of title or other acts in pais, it is settled in this state that, where the wife holds the homestead under color of title arising from a recorded conveyance in her name, and evinces her claim by acts of ownership and control, all to the knowledge of the husband, she may acquire complete title thereto by adverse possession for the statutory period.
In Hartman v. Nettles, 64 Miss. 495, 8 So. 234, the husband held a deed from one Evans, who later under the mistaken notion that he could revoke the deed to the husband, executed another deed to the wife. In discussing the effect of the second instrument as color of title, the court said: "But this deed, though ineffectual of and by itself to vest any title in the wife, was sufficient color of title to ripen into a perfect one by the lapse of time. She has held possession under it for more than 20 years, claiming the land as her own; and, though the husband has also resided upon the premises and cultivated the lands, his occupancy has been in recognition of and in subordination to the wife's claim, and not in his own right as owner. Under such circumstances, the husband would be barred by limitation of any action to recover the possession from the wife; and, since the husband is barred, so also is the creditor, since he could only subject to sale under execution the interest of the husband in the land."
In Massey v. Rimmer, 69 Miss. 667, 13 So. 832, the husband altered a deed by erasing his name as grantee and inserting the name of his wife. It was held that since this procedure, however irregular, was for the purpose of vesting title in the wife, the statute of limitations began to run in her favor from that time and that her title in the land was perfected after the lapse of ten years. See, also, Potter v. Adams, 125 Mo. 118, 28 S.W. 490, 46 Am. St. Rep. 478; McPherson v. McPherson, 75 Neb. 830, 106 N.W. 991, 121 Am. St. Rep. 835. In the instant case the husband's knowledge of and acquiescence in the issuance of the renewal lease in the wife's name furnish a pertinent analogy.
The maturing of title to the land in the wife by adverse possession operated completely to divest not only the husband of any claim or right of title thereto, but also all creditors or lienors claiming through him, since the title of the wife is not a derivative but an independent paramount title. Niles v. Davis, 60 Miss. 750; Gordon v. Anderson, 90 Miss. 677, 44 So. 67; McClanahan's Adm'r et al. v. Norfolk W. Ry. Co., 122 Va. 705, 96 S.E. 453; Virginia W. Va. Coal Co. v. Charles, 4 Cir., 254 F. 379; Potter v. Adams, supra; 2 C.J.S., Adverse Possession, 804, sec. 200.
This is a case, the determination of which must cause loss to those who, though entirely without conscious fault, have builded their claims upon insecure assumptions not reinforced by law. The learned chancellor held that the equities and the law favored the appellees, to which view we are compelled to give assent.
Affirmed.
ON SUGGESTION OF ERROR.
Appellants suggest to the Court that in its original opinion full consideration was not given to an alleged trust relationship between Mr. and Mrs. Moore and to the right of Mr. Moore to renew the lease in his name at its expiration.
Analogies drawn from the law of cotenancy are not helpful since the complete emancipation of married women from all disabilities of coverture makes irrelevant a consideration of obligations inter se. Mrs. Moore alone held the title by lease to the property. There is no dispute between husband and wife or their respective successors in title. It is true that the appellant, as an alleged successor in title to C.L. Lincoln, the mortgagee, claims that the lease should have been renewed by Mr. Moore so as to protect the mortgagee's security. But it was not so renewed, and appellees are correct in their statement that such renewal was optional and could not have been compelled.
Since the decision was based upon appellees' title by adverse possession, intimations of possible fraud are now more urgently pressed by appellants than in their original brief. Since no proof of covinous design has been adduced to overturn the presumption of good faith (Virden v. Dwyer, 78 Miss. 763, 30 So. 45), any discussion of the possibilities thereof assumes the aspect of an attack upon the principle announced in Hartman v. Nettles, 64 Miss. 495, 3 So. 234, and Massey v. Rimmer, 69 Miss. 667, 13 So. 832. To these cases and others cited in the original opinion may be added Collins v. Lynch, 157 Pa. 246, 27 A. 721, 37 Am. St. Rep. 723; Lantry v. Wolff, 49 Neb. 374, 68 N.W. 494.
Regardless of what may have been our views if this were a case of first impression, these cases have controlled property rights for over fifty years and no legislation has been passed to modify their effect. We are unwilling to overrule them.
It should not be overlooked that when the lease to Mr. Moore expired all the rights of the mortgagee therein fell with it. This is the pivotal circumstance in the case, and it is to this omission that the mortgagee must attribute his loss. What happened thereafter in regard to its acquisition by another could indeed be deemed irrelevant except as it may involve the title of the new lessee. Arguments of counsel have however made this an issue and we have responded thereto. Had claim of appellees been placed upon the mere fact of the execution of the lease to Mrs. Moore and its validity upheld, all other questions would have been put out of view since the mortgagee was not induced to cancel his deed of trust and procure a renewal by any fraud or act of appellees, and mistake is not involved, and since the deed of trust, through whose foreclosure appellant seeks title, was executed after the mortgagee had record notice of the lease to Mrs. Moore, the situation is much as if there had been a failure of a lessee to renew and the granting of a new lease to a stranger.
The relation of husband and wife constitutes no complication or exception since neither fraud nor mistake is shown. Analogies which involve fiduciary relationships are therefore not here in point. The transaction was in the open and public record made thereof. A mortgagor of realty may cause loss to his mortgagee by allowing his land to sell for taxes or be foreclosed under a prior mortgage or lost by an adverse possession. The mortgagee is under some duty to keep advised as to his seccurity. Here the loss resulted from mortgagor's failure to exercise his option to renew the lease.
Suggestion of error overruled.
DISSENTING OPINION.
In my opinion the suggestion of error in this case ought to be sustained and the judgment appealed from reversed and judgment rendered here for appellant.
The controlling opinion states the material facts. There is no dispute about them. Under those facts it would be most unjust, unfair, and dishonest on the part of both the husband and the wife to permit her to acquire title against him by adverse possession or otherwise and thereby defeat his mortgagee when without dispute he owned the land at the time the first mortgage was taken. Husband and wife living together as such are one. They occupy a relationship of trust toward each other. There could be no such thing as adverse possession between them to the extent of affecting his mortgagee. Title by adverse possession of the land cannot be acquired unless such possession is open and notorious. Nor, on account of such trust relationship, can one acquire title from the other by conveyance. It is true there is no decision of our Court directly in point sustaining that view, but there are numerous cases announcing principles which mean exactly that. To illustrate: The cases holding that a tenant in common cannot acquire title against his co-tenant either by adverse possession or otherwise; the relation of trust between them prevents it. Shelby v. Rhodes, 105 Miss. 255, 62 So. 232, Ann. Cas. 1916D, 1306. The land owned in common tenancy, sold under a deed of trust given by a former owner, purchased by one of the co-tenants inures to the benefit of all. Beaman v. Beaman, 90 Miss. 762, 44 So. 987. If one of several co-tenants of land subject to a life estate buys in a tax title to the land, he will obtain an absolute title to the life estate but will hold the fee in trust for the co-tenants. Fox v. Coon, 64 Miss. 465, 1 So. 629. If one of several tenants in common purchases the land at a tax sale, either by himself or through a third person, the title thus acquired inures to the benefit of all the co-tenants. Hardy v. Gregg (Miss.), 2 So. 358; Cohea v. Hemingway, 71 Miss. 22, 14 So. 734, 42 Am. St. Rep. 449. The husband of a co-tenant of lands cannot acquire title as against her co-tenants by purchase at a tax sale, for the reason that the law imputes to him knowledge of the facts which would make such a purchase by her void as against her co-tenants. Robinson v. Lewis, 68 Miss. 69, 8 So. 258, 10 L.R.A. 101, 24 Am. St. Rep. 254. A widow, holding an interest in land as tenant in common, as one of the owners of her husband's estate, does not acquire title thereto merely by an act of purchase by tax deed. Falkner v. Thurmond (Miss.), 23 So. 584. Where a married woman permits her husband to manage her separate property, she cannot repudiate his acts, nor assert a resulting trust as against a bona fide purchaser from the husband. Coleman v. Semmes, 56 Miss. 321.
If Hartman v. Nettles, 64 Miss. 495, 8 So. 234, and Massey v. Rimmer, 69 Miss. 667, 13 So. 832, hold to the contrary, they ought to be overruled upon the ground that they are unsound and most harmful in their effects. However, there is a very marked difference between the facts of those cases and the present case. In neither of those cases was a mortgagee creditor's rights involved. In one it was the rights of a simple, unsecured creditor, and the other the rights of the heirs of the husband. There was nothing in either of those cases to call the attention of the legislatures which have convened since to the principles announced in the controlling opinion in the present case.
I am therefore unable to see how the failure of the legislature to act amounted to an approval of the principles here involved.