Opinion
No. 27493.
December 17, 1928.
1. MORTGAGES. One taking trust deed, reciting it was subject to prior one, erroneously describing land, was in position of junior mortgagee with notice.
Where prior trust deed erroneously described land as being in southwest quarter of certain section, instead of in southeast quarter of section, one taking second deed of trust, which recited on its face that it was subject to prior trust deed, was placed in position of junior mortgagee with full notice of rights of senior mortgagee.
2. REFORMATION OF INSTRUMENTS. Holder of junior trust deed charged with notice of prior trust deed erroneously describing land cannot dispute right to reform and foreclose first trust deed.
Defendant taking second deed of trust reciting on its face that it was subject to prior trust deed, which erroneously described land, and being charged with notice of rights of complainant under prior trust deed, cannot successfully dispute complainant's right to reform and foreclose first deed of trust.
APPEAL from chancery court of Noxubee county; HON. T.P. GUYTON, Chancellor.
Dorroh Strong, E.T. Bush, and F.H. F.J. Lotterhos, for appellant. Magruder, Walker Magruder, and L.L. Martin, for appellees.
Argued orally by Chas. R. Strong and C.L. Dorroh, for appellant.
Stripped of all nonessential technicalities, the question arises in this case: Did appellant accept its deed of trust with notice that appellee held a prior deed of trust on the same land?
The essential facts necessary for an understanding of our decision are these: J.H. Williams purchased of J.F. Carr a tract of land, and gave a deed of trust to Carr on said land to secure a series of notes, payable annually, for the purchase price. This instrument was duly recorded. A forty-acre tract of the land was erroneously described in the deed of trust as being in the Southwest quarter of a certain section, when it should have been in the Southeast quarter of said section. It was a mistake of the attorney employed to draw the instrument. Thereafter, Williams executed a second deed of trust to A.J. Lyon Co. upon the same land, correctly describing the land. In this second deed of trust it is recited: "It is understood that there is a prior trust deed on the above-described property to J.F. Carr." Before the statute of limitation had run against the notes, appellee Carr filed a bill to reform and foreclose in chancery the first deed of trust. This action was resisted by appellant, first, by demurrer, which, being overruled, answer was filed, upon which bill and answer the chancellor heard proof, and decreed a reformation and foreclosure of the deed of trust as prayed for in the bill.
Any right that Lyon Co. might have acquired was through the second deed of trust, which instrument recites upon its face that it is subject to the prior trust deed of Carr. Appellant thereby is placed in the position of a junior mortgagee with full notice of the rights of the senior mortgagee. Charged with such notice, he cannot successfully dispute appellee's right to reform and foreclose the first deed of trust. The decree of the chancellor will be affirmed.
Affirmed.