Summary
stating that when a purchaser has knowledge of circumstances that would put a prudent person acting in good faith on inquiry, he is chargeable with actual notice of the facts the inquiry would have disclosed
Summary of this case from Estate of Wheeler v. WheelerOpinion
No. 36111.
April 22, 1946.
1. DEEDS.
The act of grantor in placing a deed of record is prima facie a delivery of the deed.
2. DEEDS. Taxation.
Where deed conveying land to grantor's son was placed of record by grantor at time when grantee was 11 years of age and from that time all parties regarded son as owner, although grantor resumed possession of deed until son married, deed was delivered at time it was placed of record and son was therefore owner of land when sold for taxes one year later, so as to give him the benefit of statute giving a minor two years after becoming of age within which to redeem land from tax sale (Code 1942, sec. 9948).
3. TAXATION.
Evidence that landowner, carrying sufficient money, went to chancery clerk's office and informed clerk that he wished to redeem land from tax sale and, upon being informed that he would have to consult State Land Office, conferred with State Land Commissioner with respect to redeeming or re-purchasing the land, and that the Commissioner informed owner that it was too late to effect a redemption, justified finding that owner's acts constituted sufficient offer to redeem (Code 1942, sec. 9948).
4. EVIDENCE.
Family records, record of vital statistics of the State and certificate of physician was sufficient evidence to support finding as to the date of landowner's birth (Code 1942, sec. 9948).
5. TAXATION.
Where land acquired by the State at tax sale in 1931 was purchased by defendants in 1942, record owner was 12 years of age at time of tax sale, and had used the land in 1941 and had rented it in 1941 and 1942, purchasers were not innocent purchasers for value (Code 1942, sec. 9948).
6. VENDOR AND PURCHASER.
Where a purchaser has knowledge of circumstances such as would put a prudent person acting in good faith on inquiry, he is chargeable with actual notice of the facts the inquiry would have disclosed.
7. VENDOR AND PURCHASER.
Open and notorious possession of land under claim of title is sufficient to put subsequent purchasers on inquiry as to the professor's rights therein.
8. VENDOR AND PURCHASER.
The possession of a tenant of real property is constructive notice, as to third parties, of the title of the landlord.
9. TAXATION.
An offer and request to redeem from tax sale, within the two years allowed a minor to redeem, takes away from the State the power to convey the title to the property, when the party is ready and able to redeem and refusal is either arbitrary or through unintentional misrepresentation of facts (Code 1942, sec. 9948).
10. TAXATION.
Whether owner, upon being granted right to redeem property from tax sale, could be required to pay all intervening taxes as a prerequisite, was a question which could only be raised by the State, and not by the parties purchasing the land from the State.
APPEAL from the chancery court of Leake county, HON. M.B. MONTGOMERY, Chancellor.
Morgan Thornton, of Kosciusko, for appellants.
The evidence discloses that while the deed was signed, acknowledged, and placed of record in 1930, the delivery of the deed was deliberately withheld by the grantor in said deed until 1939, when the deed was delivered and possession given; that by reason thereof, the title did not pass until 1939 on delivery, and for that reason the tax sale made in 1931 for a default in taxes in 1930 was of the land of the grantor in said instrument, D.J. McLauchlin, an adult, and that the title matured in the State of Mississippi before an interest might have vested in Pat N. McLauchlin in the lands in controversy, and that an equity of redemption was not available to the appellee at the time it is charged he made application for redemption.
Delivery is one of the essentials to the validity of a deed. As we view the law, it was encumbent upon the appellee to show that the deed had been delivered before he could hope to succeed. His whole case had been rested, and rests, upon the presumption of delivery by the recording of the deed. This presumption disappears when it is shown that the deed was never delivered; that it had been in the possession of the appellant ever since it was signed and acknowledged, except the time it was in the possession of the clerk of the chancery court.
Lynch v. Lynch, 121 Miss. 752, 83 So. 807.
Delivery is a question of intention.
Hall v. Barnett, 71 Miss. 37, 14 So. 732.
The court was in error in holding that the appellee, Pat N. McLauchlin, was born June 20, 1919. The unbiased records made by him reflect his age as being more than 23 years of age in December, 1941, when he went to see the chancery clerk of Leake County and the State Land Commissioner about his land, which is not classified as an effective redemption.
The court was in error in holding from the evidence that the conduct of Pat N. McLauchlin as testified to constitutes a sufficient offer of redemption to constitute an equitable redemption in law.
Kelly v. Coker, 197 Miss. 131, 19 So.2d 519.
The appellants, Beauchamp Morgan, were bona fide purchasers without notice, and therefore, as to them, the the bill should have been dismissed.
National Bond Investment Co. v. Control National Bank of Enid, 285 P. 828; Foster v. Winstanley, 102 P. 574; Montana Electric Co. v. Northern Valley Mining Co., 153 P. 1017; 5 Words Phrases 628.
The court erred in finding for the complainant, Pat N. McLauchlin, and his wife, and cancelling the patent from the State of Mississippi, and the deeds from the patentees to defendants Beauchamp Morgan, in that to do so would be awarding a donation of all past due taxes to the appellee as no judgment was awarded and the patents cancelled without requiring the appellees to at least pay the taxes due on said lands, even though the court may hold that this was a tender, the court did not require him to pay the taxes, and therefore to uphold this judgment would violate Section 95 of the Constitution of 1890.
State ex rel. McCullen v. Tate, 188 Miss. 865, 196 So. 755; State v. Roell, 192 Miss. 873, 7 So.2d 867; State v. Lewis, 192 Miss. 890, 7 So.2d 871; Constitution of 1890, Sec. 95.
A.M. Warwick, of Carthage, for appellees.
Appellee Pat N. McLauchlin was vested with title to the land in question upon execution and recordation of the deed by his father D.J. McLauchlin in the year 1930. Depositing the deed in the father's trunk among his family papers, grantee being a minor only 11 years of age, constituted a valid delivery.
Wall v. Wall, 30 Miss. 91; Chapman v. Lott, 144 Miss. 841, 110 So. 793; 18 C.J. 419, 207.
Pat N. McLauchlin, being the owner of the lands in question at the time of the tax sale to the State in April, 1931 and being a minor at the time of said sale, had a lawful right to redeem the land from said sale at any time within two years after attaining his majority.
Code of 1930, Sec. 3264.
And Section 9948 of the Code of 1942, or Chapter 286 of the Laws of 1932, restricting rights of minors in certain conditions from redeeming their lands after two year period following the date of sale, do not operate to preclude a minor redeeming his land from tax sales made prior to the amendment of 1932. But, rather, Section 3264 of the Code of 1930 still prevails as to sales made prior to said amendment.
Moore v. Rotenberry, 188 Miss. 882, 196 So. 758; Lee v. Smith, 189 Miss. 636, 198 So. 296; Hanna v. Ford, 189 Miss. 464, 198 So. 37.
Pat N. McLauchlin, owner of the lands, was a minor at the time of the tax sale. He became 21 years of age, as found by the court, June 20, 1940; thus, he could redeem his land at any time before June 20, 1942, by applying to the chancery clerk of the county.
Code of 1930, Secs. 3263, 3264.
The offer to redeem, coupled with the fact that Pat N. McLauchlin had sufficient money with him to redeem the land, but was denied the redemption by the chancery clerk and by the State Land Commissioner, operated as an actual redemption, divested the state of power to resell the land, and restored the title to Pat N. McLauchlin as it was before the tax sale.
McLain v. Meletio, 166 Miss. 1, 147 So. 878; Kelly v. Coker, 197 Miss. 131, 19 So.2d 519; Brannon v. Lyon, 86 Miss. 401, 38 So. 609; 61 C.J. 1287.
At this tax sale, the state only took title subject to the right of Pat N. McLauchlin, owner, who was a minor, to redeem the land within two years after attaining his majority. The State cannot therefore be considered an innocent bona fide purchaser for value. The rule of "caveat emptor" applies to purchasers of tax titles. By this same token, the appellants cannot be considered as bona fide purchasers for value and without notice.
61 C.J. 1328.
Appellants, Beauchamp Morgan, were not bona fide purchasers without notice of appellant's ownership and rights in the land. When the State conveyed by patent the lands to appellant's immediate predecessor in title, and also when appellants bought the title, appellee's tenant was actually occupying the land. A tenant's possession of land is constructive notice of all rights of the landlord therein.
Loughridge v. Bowland, 52 Miss. 546; Levy v. Holberg, 67 Miss. 526, 7 So. 431; Lay v. Nutt, 194 Miss. 83, 11 So.2d 430; Kalmia Realty Ins. Co. v. Hardy, 164 Miss. 313, 145 So. 506.
Argued orally by C.E. Morgan, for appellants, and by A.M. Warwick, for appellees.
Pat N. McLauchlin and his wife, Wyvette McLauchlin, appellees, filed their bill in the Chancery Court against H.B. Beauchamp, C.E. Morgan, A.H. Cauthen and Nelson Cauthen, the appellants herein, and the State of Mississippi, seeking to cancel a patent issued by the State to A.H. Cauthen to 40 acres of land and also a patent issued to Nelson Cauthen to 160 acres of land, and to annul and cancel a deed from the Cauthens conveying both tracts of land to appellants Beauchamp and Morgan, and to obtain a decree of the court adjudicating that Pat N. McLauchlin had performed such acts as were necessary to legally redeem said land from a tax sale to the State. The Chancellor sustained the bill and all of the defendants appeal except the State of Mississippi.
The tax sale in question occurred the 6th day of April, 1931, for delinquent taxes for 1930. Pat McLauchlin offered to redeem the lands from that sale, in the manner hereinafter set out, in December, 1941, before he became twenty-three years of age on June 20th thereafter. A minor has two years after becoming of legal age within which to redeem his land from tax sale. Section 9948, Code 1942. Appellants contend that Pat McLauchlin was not the owner of the lands when they sold for taxes. That is grounded on the claim that there was no delivery of a deed to Pat, under the circumstances hereinafter related, until the year 1938, and that he had no title to the land until that time; that, until that time, the land was owned by D.J. McLauchlin, an adult, and that therefore the right of a minor to redeem under the foregoing statute did not exist. Was there a delivery of the deed to Pat McLauchlin prior to this tax sale in 1931?
On that question the record discloses that Dan J. McLauchlin, the father of Pat Newton McLauchlin, owned between three and four thousand acres of land in Leake County, Mississippi. He had several children and a number of grandchildren. He decided to give his children and grandchildren certain of his lands. He executed and recorded a deed to each of them. He delivered to the adult grantees their deeds and the deeds to the minor grandchildren he delivered to their parents for such minors. The deed to Pat is dated February 18, 1930, and describes the 200 acres of land in question. It recites a consideration of $1 "and the love and affection I have for my son." The grantor delivered the deed to the Chancery Clerk on March 14, 1930, for the purpose of being recorded. It was actually recorded March 19, 1930. After being recorded the deed was redelivered to the grantor and by him placed in a trunk in his home, and he retained the physical possession of it until sometime in the year 1938. When the deed was executed and recorded Pat was around eleven years of age and was then living in the home of his parents, where he continued to live until he later married. During this time Pat and his mother both knew the deed had been executed and it was generally understood in the family that said land belonged to Pat. Also during that time the father managed the land. It appears he rented it to two people. Apparently no cash rent was paid, the tenants using the land as a pasture and paying the rent by making certain improvements on the premises. On April 16, 1938, Pat married the appellant, Wyvette McLauchlin, and about that time, or shortly thereafter, the deed was physically delivered to him by his father. During 1938 and 1939 Pat constructed on the premises a residence of the value of five to six hundred dollars and a barn of the value of one hundred and fifty dollars. Pat and his wife moved into this residence and onto the land in October, 1939. Further acts of ownership will be detailed later but for the present purpose need not now be stated. The question is whether there was a delivery of the deed prior to the tax sale on April 6, 1931?
In Young v. Elgin (Miss.), 27 So. 595, the mother executed a deed conveying her residence to her daughter who lived with her and placed the deed in the grantor's wardrobe. The daughter knew nothing of the execution of this deed until the mother, when leaving to visit another daughter a few months after, told her where the deed was, and that she had given the property to her. The mother died, the deed still being in the wardrobe. This Court held that the deed had been delivered.
In Chapman v. Lott, 144 Miss. 841, 110 So. 793, this Court held that a deed executed by the husband to his wife had been delivered where the husband signed and acknowledged the deed and delivered it for record, although the husband obtained the deed after it was recorded and thereafter kept it with the family papers of himself and his wife in the home.
In the case at bar the grantee was a minor living in the home. The deed was placed by the father of record, which act itself was prima facie a delivery. He told the grantee he had executed the deed and the members of the family considered that the property belonged to the grantee. The physical possession of the deed was delivered to him upon his marriage, or shortly thereafter. We think it is clear under all of the circumstances and the applicable rules of law that this deed was delivered to the grantee in 1930 and he then became the owner of the legal title to said land.
It is next contended by appellants that Pat did not perform sufficient acts to redeem the land. It is shown that after Pat married and moved onto the land he discovered it had sold for taxes in 1931. He and two older brothers went to the Chancery Clerk's office and Pat informed the clerk he understood the land had sold for taxes and that he wanted to redeem it from the tax sale. He exhibited to the clerk the deed from his father. He told the clerk that he was a minor when this sale was made. The clerk looked at his records and informed Pat that the tax sale had been reported to the State Land Office and that it was too late to redeem the land through his office and that Pat would have to consult the State Land Office. Pat and his brothers went to the State Capitol that same day and conferred with the State Land Commissioner, with the purpose to either redeem or re-purchase the land from the State. He exhibited to the Commissioner his deed and explained he was a minor when the sale took place, expressing at the time his understanding that the law gave protection to a minor whose land had sold for taxes. The Commissioner informed him, however, he could not issue to him a patent because the Cauthens had made applications for patents and the State was under obligation to issue such patents (one brother understood the patent to A.H. Cauthen had already been issued) and also because the Commissioner erroneously thought that a statute enacted after this sale affected Pat's rights to redeem or re-purchase his land. It is further shown without dispute that when Pat went to the Chancery Clerk and to the Land Office he had upon his person sufficient money with which to redeem the land or to re-purchase it from the State. Appellants contend these acts did not constitute a redemption. Specifically, they say the clerk was not requested to figure up the amount necessary to redeem and no money was actually tendered the clerk or the Land Commissioner. Substantially the same facts and questions were involved in McLain v. Meletio et al., 166 Miss. 1, 147 So. 878, and Kelly v. Coker, 197 Miss. 131, 19 So.2d 519, and this Court held in both cases redemptions had been effected. Those cases are binding upon us unless we overrule them.
It is next contended by appellants that the proof fails to show that Pat offered to redeem the lands within two years after he became of age. Specifically they contend that the proof shows that Pat was born June 20, 1918. If he was born in 1918 his offer to redeem in December, 1941 came too late, but if he was born June 20, 1919, his offer to redeem was within two years after he became twenty-one years of age. The Chancellor found that he was born in 1919. The evidence in support of that finding is this; Pat and his mother swore to that fact and the Bible record made by his father, who died in July, 1941, showed that fact. The record of vital statistics of the State and the certificate of the attending physician also showed the date of his birth to be in 1919. As against that the Questionnaire submitted to his Draft Board, Form 40, and signed by him stated he was born in 1918. However, the registration card showed the year 1919. It is explained in this connection that the Questionnaire was actually filled out by a man named Mooney from information given to him by Pat, who testified that he gave to Mr. Mooney the year 1919. The county school records tend to show that he was born before the year 1919, although the County Superintendent of Education testified that the numbers on those records were vague and uncertain and he could not be sure what the numbers actually were. Pat married April 16, 1938. The application for the marriage license, sworn to by Pat, stated he was then twenty-one years old. However, this application was made by two friends by the name of Tullos, although signed by Pat. It is not shown whether the information in the application was furnished by Pat or by the applicants. It will be seen that the Chancellor decided this fact upon conflicting testimony. It is evident, however, that the Chancellor had ample evidence to support his finding, in which case this Court has no right to reverse him. Therefore, his finding must be accepted by this Court.
Appellants earnestly urge that they are innocent purchasers for value. They say they had no notice, actual or constructive, that Pat endeavored to redeem the land. Appellees reply, first, that appellants did have constructive notice, and, second, if not, that the State had no power to convey title by the patents. On the question of notice the deed to Pat McLauchlin was actually recorded March 19, 1930. The deed to appellants from the Cauthens was executed August 5, 1942. It was a quitclaim deed "for a valuable consideration," and reserved to the grantors one-fourth of the oil, gas and mineral rights in the land. The application of Nelson Cauthen for the patent is in the record and recites that the land was valued for assessment purposes at $800, and that "P.N. McLauchlin" was the owner at the time of the sale, and the applicant agreed to pay 50 cents per acre for the land. The state patent to A.H. Cauthen to 40 acres of the land is dated December 12, 1941, but was not recorded until April 17, 1942, and the consideration was $87. The patent to Nelson Cauthen is dated February 13, 1942, and was recorded on April 17, 1942. The consideration was $1 per acre. The proof shows the land was actually worth about $2,000. Apparently the land was assessed in the name of P.N. McLauchlin when the tax sale was made and had been so assessed since that time. Pat paid the taxes on the land in 1940. Apparently appellant, Beauchamp, knew the McLauchlin family. The proof is he rented this land some two or three years. Further, on the question of notice of the rights of Pat McLauchlin, it is shown, as above stated, that Pat constructed a residence and a barn on the land and actually occupied and used it in 1940, placing some 30 acres thereof in cultivation. He moved from it in 1941 because he began to work at a defense plant during the Second World War and his wife and child could not remain on the land alone and because his father had suffered a severe injury in a fall and Pat's wife moved to the father's home to help care for him. However, Pat rented out the land in 1941 and 1942 and his tenant was living thereon during that time. It will, therefore, be seen that appellants had notice of the public records affecting their title and the rights of the true owner of the land shown thereby and that Pat McLauchlin was in possession of the premises through his tenant when appellants obtained their deed August 5, 1942. Indeed, after obtaining their deed appellants stopped the payment of the rent to Pat McLauchlin by such tenant. Apparently also Beauchamp personally knew Pat McLauchlin. Both appellants knew the land had been assessed to Pat McLauchlin during all of these years and he had paid the taxes thereon for 1940, and was in possession thereof, when they obtained their deed more than eleven years after the tax sale on which they relied for title. Where a purchaser has knowledge of circumstances such as would put a prudent person acting in good faith on inquiry, he is chargeable with actual notice of the facts the inquiry would have disclosed. Parker v. Foy, 43 Miss. 260, 5 Am. Rep. 484; Baldwin v. Anderson, 103 Miss. 462, 60 So. 578. Open and notorious possession of land under claim of title is sufficient to put subsequent purchasers on inquiry as to the possessor's rights therein. Bolton v. Roebuck, 77 Miss. 710, 27 So. 630; Russell v. Scarborough, 155 Miss. 508, 124 So. 648; Palmer v. Fair Co., 140 Miss. 294, 105 So. 513. The possession of a tenant of real property is constructive notice, as to third parties, of the title of the landlord. Levy v. Holberg, 67 Miss. 526, 7 So. 431; Kalmia Realty Ins. Co. v. Hardy, 164 Miss. 313, 145 So. 506. Inquiry by appellants of the man in possession and use of the land, to whom it was assessed for taxes and in whose name the title stood on the record, would naturally have disclosed to them that Pat McLauchlin had undertaken to redeem the land from the tax sale made eleven years before appellants obtained their deed.
And on the question of the power of the State to sell and convey title under the foregoing circumstances, it was said in the McLain case, supra [ 166 Miss. 1, 147 So. 879], "appellant's offer to redeem within the two-year period took away from both the state and the drainage commissioners the power to convey title to anyone else," and in Kelly v. Coker, supra, the Court announced that "the offer and request to redeem when the party is ready and able to do so, where refused either arbitrarily or through unintentional misrepresentation of facts, took away from the state the power to convey the title to Burwell," citing McLain v. Meletio, supra, and Brannon v. Lyon, 86 Miss. 401, 38 So. 609. See also 61 C.J., p. 1287, par. 1788, and p. 1328, par. 1859.
Lastly it is contended by appellants that equity was not done in this case because the decree of the lower Court does not require Pat McLauchlin to pay all intervening taxes, if any, as a prerequisite to his right to redeem the land. The State was a party defendant to this proceeding and does not appeal and the foregoing question can not be raised by appellants. What other acts are necessary on the part of the landowner to effectually clear the record of this tax sale is a matter between him and the office of the Chancery Clerk and the Land Office of the State of Mississippi and are not now before us, and any claim of appellants to reimbursement for the money they have paid out is a matter between them and the State and the grantors in their deed.
Affirmed.