Summary
In Martin v. Russell, 193 Miss. 825, 11 So.2d 434, it is said that one is not a purchaser for value who acquired property on credit and had paid nothing thereon.
Summary of this case from Smith v. EnochsOpinion
No. 35210.
January 18, 1943. Suggestion of Error Overruled February 15, 1943.
1. VENDOR AND PURCHASER.
To prove one a "purchaser for value" with rights superior to prior grantee, it is not enough to show that security was given for alleged valuable consideration unless security has been transferred to third party for value without notice.
2. MORTGAGES.
If bank took deed of trust from purchaser for face amount of purchase price as additional security for vendor's debt to bank, bank gave no "valuable consideration" and rights of bank's transferee were not superior to rights of vendor's grantee whose deed was not recorded until after bank acquired deed of trust.
3. MORTGAGES.
Evidence that, after conveyance to grantor's son, grantor conveyed land to purchaser who executed deed of trust to bank whose liquidator conveyed land to plaintiff, and which failed to show bank's interest in transaction, was insufficient to show that bank took security for value without notice so as to make purchaser an "innocent purchaser for value without notice" and entitle plaintiff to establish title as against the son.
APPEAL from chancery court of Jasper county, HON. A.B. AMIS, SR., Chancellor.
Lyle V. Corey, of Meridian, for appellant.
Where one claiming to be a bona fide purchaser for value without notice proves that he is a purchaser for value, the burden shifts to the opposite party to show that the purchaser had notice.
Atkinson v. Greaves, 70 Miss. 42, 11 So. 688; 66 C.J., Vendor Purchaser, 1197 to 1199, Sec. 1063; 107 A.L.R. 517.
Where a purchaser gives a mortgage to a bank and the bank credits the seller with the amount of the mortgage, there is sufficient consideration to support the claim of bona fide purchaser.
66 C.J., Vendor Purchaser, 1109, Sec. 934.
Notice of clerical defect in description of land in judgment does not charge one with notice that judgment was erroneous as not divesting interest of heir.
66 C.J., Vendor Purchaser, 1129, Sec. 963; Crow v. Van Ness (Tex. Civ. App.), 232 S.W. 539.
Where it is sought to defeat clear legal record title by one having equitable title on ground that equities of latter were known to former at time of acquiring legal estate, proof of notice must be clear and satisfactory.
Loughbridge Bogan v. Bowland, 52 Miss. 546; 66 C.J., Vendor Purchaser, 1204, Sec. 1066.
Knowledge of a rumor is neither actual nor implied notice.
Loughbridge Bogan v. Bowland, supra.
J.M. Travis, of Meridian, and Homer Currie, of Raleigh, for appellees.
In suits to confirm title and remove clouds complainant must show good title in himself, and the burden of proof is on complainant.
Camp v. Celtic Land Improvement Co., 129 Miss. 417, 91 So. 897; Hume v. Inglis, 154 Miss. 481, 122 So. 535; Gambrell Lbr. Co. v. Saratoga Lbr. Co., 87 Miss. 773, 40 So. 485; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619; Paepckle-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Peterson v. Kittredge, 65 Miss. 33, 5 So. 824.
The appellant, having relied solely upon J.T. Poore being an innocent purchaser for value, was required to plead same and had the burden of proof.
Yates v. Mead, 65 Miss. 89, 3 So. 651; U.S. Myer v. Ritter, 268 F. 938; Rozell v. Chicago Mill Co. (Ark.), 87 S.W. 479; Wilholt v. Lyons (Calif.), 32 P. 325; Velde v. Schroch, 253 Ill. App. 274; Sullenger v. Beacher (Ind.), 101 N.E. 517; Westbrook v. Gleason, 75 N.Y. 22; Weber v. Rothchild (Ore.), 15 P. 650; P.A. Reilly v. Tygard, 28 Pitts. Aleg. J.N.S. 313; 66 C.J. 1063, 1197; Service Oil Co. v. Dunlap, 101 F.2d 314; Dixon v. Corgill (Tex.), 104 S.W.2d 101; Logue v. Van Allen, 379 Ill. 208, 40 N.E.2d 73; McFarland v. Whitney (Tex.), 106 S.W.3d 406; Fox v. Sizeland (Ill.), 9 N.W. 3d 406; In re Lynn Carpet Co. (Mass.), 25 F.2d 509; Edwards v. Myer (Kan.), 278 P. 468; Parish v. Cashner (Mo.), 282 S.W. 392; Myer v. Harmen (Okla.), 244 P. 1100; Austin v. Evan (Okla.), 270 P. 26; Justice v. Shaw (Neb.), 172 N.W. 253; Stellman v. Churchfield Coal Co. (Va.), 93 S.E. 684; Sharly v. Hanson (Minn.), 163 N.W. 1032; King v. McRock (N.C.), 88 S.E. 226.
One relying upon the defense of bona fide purchaser for value without notice must not only plead but must prove that defense.
Stanton v. Green, 34 Miss. 576; Jenkins v. Bodley, Sm. M. Ch. 338; Harper v. Reno, Freem Ch. 323; Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60, 131 So. 223; Marle v. Barchfield Bros. (Ala.), 155 So. 558.
On question of who is innocent purchaser for value: He is an innocent purchaser who buys a legal estate and pays the purchase price without knowledge of an outstanding equity. The title purchased must be apparently perfect and there must be some new present consideration actually paid. A mere settlement of an antecedent debt without any new consideration being paid is not sufficient.
Perkins, Livingston Post v. D.C. Swank et al., 43 Miss. 349; Williamson v. Williamson, 3 Smedes M. (11 Miss.), 715, 47 Am. Dec. 636; Flynt v. Hubbard, 57 Miss. 471; Tinnin v. Brown et al., 98 Miss. 378, 53 So. 780.
A party to avail himself as a bona fide purchaser for value must buy the legal title. He must pay reasonable and fair consideration, and he must not have had any notice of any other title, and if a party deeds property which he does not own no title passes at all.
Dedeaux v. Cuevas, 107 Miss. 7, 64 So. 844; Jones v. Madison County, 72 Miss. 777, 18 So. 87; Wailes v. Cooper, 24 Miss. 208; Jenkins v. Bodley, supra; Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453; Mayes v. Thompson, 128 Miss. 561, 91 So. 275; Ketchum v. Brennan, 53 Miss. 596; Unger v. Abbott, 92 Miss. 563, 46 So. 68; 18 C.J. 160; 66 C.J. 45, p. 512.
It is a well settled principle of law of bona fide purchaser for value that possession of land is notice and is sufficient to put the purchaser on inquiry.
55 C.J. 610.
For a legal title to pass by a partition proceeding the parties to the proceeding must be joint-tenants, tenants in common or copartners, and if they are not joint-tenants, tenants in common or copartners in the lands to be partited, no title passes by the partition proceeding, and so far as any land being not owned by the parties being included in the partition proceeding, no title whatsoever passes.
White v. Lefoldt, 78 Miss. 173, 28 So. 818; Mallory v. Walton, 119 Miss. 396, 81 So. 113; Schuler v. Murphy, 91 Miss. 518, 44 So. 810; Long et al. v. Long et al. (Ala.), 90 So. 733; Chandler et al. v. Home Loan Corp., 211 Ala. 80, 99 So. 723; Roy v. Abraham (Ala.), 92 So. 792; Christopher v. Munten et al. (Fla.), 55 So. 273; Dallam et al. v. Sanchez et al. (Fla.), 47 So. 871; Samuels v. Persons, 146 La. 262, 83 So. 548.
Argued orally by Lyle V. Corey, for appellant, and by J.M. Travis, for appellees.
In 1919 S.D. Russell, Jr., conveyed the land here in controversy to his son S.J. Russell, one of appellees, the grantee being then about six years of age. The deed was delivered to the son, but his mother thereupon took and kept it for him. This deed was not recorded until 1936, or until the grantee had become about twenty-three years of age.
In 1929 S.D. Russell, Jr., conveyed the land to Poore, who was at the time a tenant thereon. The ostensible vendee paid nothing on the alleged purchase price, but instead he and his wife on the same day gave a deed of trust on the land to a bank for the face amount of the purchase price. Poore did not subsequently pay a cent upon the supposed obligation to the bank, and the evidence shows that he was never out of pocket in any amount whatever on account of the transaction; and in about two years he abandoned the premises, taking with him his personal property which was small in amount and value.
Appellant in attempting to establish title in himself, wherein the conveyance from S.D. Russell, Jr., to Poore is an essential link, averred and sought to prove that Poore was an innocent purchaser for value without notice. There was sufficient proof on behalf of the son to sustain the finding by the chancellor that Poore had notice of the title in the son, but aside from this the evidence discloses that Poore was not a purchaser for value. It is not enough to sustain the affirmative of that issue to show that security was given for the alleged valuable consideration, Parker v. Foy, 43 Miss. 260, 265, 5 Am.Rep. 484, unless the security has been transferred to a third party for value without notice. 66 C.J., pp. 1109, 1110, Sec. 934.
And this brings us to the question whether it was sufficiently shown that the bank took the security for value without notice. The bank subsequently foreclosed the deed of trust, and the trustee's deed conveyed the land to the bank's liquidator, who conveyed it to appellant, but after appellee's deed had been recorded. No person connected with the bank at the time and who would have dependable knowledge of the transaction was called to testify, nor did S.D. Russell, Jr., appear as a witness. What the bank did with the proceeds of the deed of trust, and whether in fact there were any proceeds, or whether the bank laid out anything on account thereof, is not disclosed by the record. The deed of trust or a copy thereof is not shown. So far as anything of a dependable nature appears, the bank may have taken the deed of trust as additional security for debts already owed to it by S.D. Russell, Jr. And this is not a valuable consideration. 1 Jones on Mortgages (8 Ed.), p. 770.
It is true that Poore testified that at the time he gave the deed of trust to the bank, the bank "gave Mr. Russell credit for it." But his further statements showed that he didn't even know to what bank he gave the deed of trust, and his testimony in regard to the bank transactions is so confusing and so deficient in cogency that there is nothing in it upon which a court could safely act as the reference made to it by the chancellor in his opinion points out, and especially so when it is remembered that no person from the bank, and who would know the real facts, appeared as a witness, which we must assume they would have been required to do had the facts been such as to sustain the bank as a purchaser for value within the rules governing that subject.
Affirmed.