Opinion
No. 32298.
June 1, 1936.
1. TAXATION.
Widow who occupied and used exempt homestead of deceased husband held personally and primarily liable for payment of ad valorem taxes assessed against property the same as a life tenant in possession and enjoying income of property must pay ordinary taxes, in absence of showing exceptional circumstances (Code 1930, sec. 1412).
2. TENANCY IN COMMON.
Tenant in common of undivided interest in realty has right to convey interest to third person without let or hindrance by other tenants in common.
3. TENANCY IN COMMON.
Surviving cotenants of realty could not raise question whether deed executed by deceased tenant in common conveying undivided interest was in fact intended as mortgage.
APPEAL from chancery court of Alcorn county. HON. JAS. A. FINLEY, Chancellor.
Orma R. Smith, of Corinth, for appellants.
The appellants in their first assignment of error contend that even though the court held that M.C. Mathis, the appellee, had title to a one-eleventh undivided interest in and to the one hundred twelve-acre and the one hundred fourteen-acre tracts of land owned by the Medford estate, and that timber to the value of one hundred twenty dollars had been sold therefrom by Arlin Medford to H.E. Wilbanks, payment for which Arlin Medford received, that they had a right to show that part of the proceeds of this sale of timber was used to redeem this land from tax sale for delinquent taxes.
Lackey v. Harrington, 139 So. 313, 162 Miss. 512; Walker v. Williams, 36 So. 450, 84 Miss. 392; Bennett v. Bennett, 36 So. 452, 84 Miss. 493; Gilchrest Fordney v. Ezelle, 106 So. 269, 122 Miss. 124.
It is a recognized rule of law in this state that where an absolute deed is given by one party to another to lands where possession of the property is not given up by the party executing and delivering the deed, that parole testimony is competent to show that the deed was not intended as an absolute deed, but that it was given for the security of a debt and as a mortgage.
19 R.C.L., pages 250 and 261; Fultz v. Peterson, 28 So. 829, 78 Miss. 428; Anderson v. Burnham, 100 So. 518, 136 Miss. 613; Culp v. Wooten, 31 So. 1, 79 Miss. 503; McGehee v. Weeks, 73 So. 287, 112 Miss. 483; Blacketon, et al. v. Carte, 161 So. 696, 172 Miss. 889; Freeman v. Wilson, 51 Miss. 329; Anding v. Davis, 38 Miss. 574; Littlewort v. Davis, 50 Miss. 403.
There is a difference between an ordinary life tenant and a widow, who is enjoying the use and occupancy of a homestead, and the same rules of law that apply to an ordinary life tenant will not apply to a widow entitled to the use and occupancy of the homestead.
Lackey v. Harrington, 139 So. 313, 162 Miss. 512. Ely B. Mitchell, of Corinth, for appellee.
It is the duty of the life tenant to pay the taxes on this real estate.
As between a remainderman and a life tenant in possession, the latter, since he enjoys the rents and profits of the land, must pay the taxes, and the remainderman, in the absence of some agreement or controlling equity, is under no obligation to do so.
17 R.C.L. 36, sec. 26; 21 C.J. 955, sec. 93; 17 R.C.L., Permanent Supplement Digest, Life Estates, sec. 26; Nordlund v. Dahlgren, 130 Minn. 462; Thomas v. Evans, 105 N.Y. 601, 12 N.E. 572; Sheffield v. Cooke, 39 R.I. 217; 17 A.L.R. 1385, notes.
The duty to pay taxes on realty rests on a life tenant in possession, even though the property is unproductive.
Thayer v. Storey, 94 A.L.R. 307; Plympton v. Boston Dispensary, 105 Mass. 544; Spring v. Hollander, 261 Mass. 373; 17 A.L.R. 1384; Cannon v. Berry, 59 Miss. 289.
It is the duty of a tenant for life to pay taxes upon the premises.
Hannah v. Palmer, 56 L.R.A. 93; Crawford v. Meis, 66 L.R.A. 154; National Surety Co. v. Walker, 38 L.R.A. (N.S.) 333; Jinkiway v. Ford, L.R.A. 1915E 343; Wilson v. White, 19 L.R.A. 581; St. Paul Trust Co. v. Mintzer, 32 L.R.A. 756; Roche v. Waters, 7 L.R.A. 533, 72 Md. 264.
A tenant for years who cuts standing timber for sale and not for necessary estovers or for clearing so much of the estate as a prudent owner in fee would clear for cultivation is guilty of waste.
Warren County v. Ganns, 80 Miss. 76.
Since the appellants, part of the heirs of Abraham Medford who have taken appeal in this case, are cotenants and were in possession of this land, it was their duty to pay the taxes on this land.
7 R.C.L. 824, sec. 19; Gearhart v. Gearhart, 6 A.L.R. 291; 62 C.J. 478, sec. 118.
A tenant in common in possession of the mortgaged real estate with the acquiescence of the other co-tenants, and in the absence of any contract to pay rent, owes a duty to the other co-tenants to pay the interest maturing on the mortgage and taxes accruing on the land.
Ellis v. Snyder, 32 L.R.A. (N.S.) 523, 82 Kan. 638.
Whatever is expressly granted, or covenanted, or promised, cannot be restricted or diminished by subsequent provisions or restrictions; but general or doubtful clauses may be explained by subsequent words and clauses not repugnant or contradictory to the express grant, covenant, or promise.
That all doubtful words and provisions are to be construed more strongly against the grantor is an ancient principle of common law which is recognized as sound rule of construction by modern jurists.
Barksdale v. Barksdale, 92 Miss. 167.
It is true an absolute deed upon its face, upon certain conditions and circumstances, may be declared a mortgage, but in order for this to be done these conditions and circumstances must be met, and the evidence clear, convincing, satisfactory, conclusive and unequivocal.
19 R.C.L. 263, sec. 31; 41 C.J. 345, sec. 115; 3 Pomeroy's Equity Jurisprudence, page 2834, sec. 1195; Heirmann Kahn v. Stricklin, 60 Miss. 234; Fultz v. Peterson, 78 Miss. 128; Section 4233, Code of 1892; Culp v. Wooten Agee, 79 Miss. 503; 28 A.L.R. 554; Pratt v. Pratt, 28 A.L.R. 548 and annotations, page 553; Bergen v. Johnson, 21 Idaho, 619; Mahaffy v. Faris, 144 Iowa 220; 24 L.R.A. (N.S.) 840; Riley v. Blackner, 51 Mont. 364; Richter v. Noll, 128 Ala. 198, 30 So. 740; Stall v. Jones, 47 Neb. 706; Bailey v. Carter, 42 N.C. 283; 19 R.C.L. 262, sec. 30; 41 C.J. 365, 366, sec. 136; Section 2289, Code of 1930.
A mortgagor who allows a mortgagee or those claiming under him to remain in possession for more than ten years is barred of all equity or redemption.
Tuteur v. Brown, 74 Miss. 774; Hembree v. Johnson, 119 Miss. 204; McDaniel v. Short, 127 Miss. 520; Proctor v. Hart, 72 Miss. 288.
The burden of proof was upon the five Medfords taking this appeal to show by clear, conclusive, convincing evidence that the warranty deed was a mortgage. Parol evidence was not permissible because the grantor was not in possession of the land and there is no fraud alleged in the bill. But, for argument's sake, let us admit that it was admissible. The court held from the evidence before him that it was a straight sale evidenced by a warranty deed. The Chancellor's finding on question of fact on conflicting evidence will not be disturbed, unless manifestly wrong.
Steede v. Ferrer, 150 Miss. 711; Sellers Motor Co. v. Champion Spark Plug Co., 150 Miss. 473; Crichton v. Haliburton Moore, 154 Miss. 265; Hibernia Bank Trust Co. v. Turner, 156 Miss. 842; Quine v. Wilcox, 165 Miss. 325; Cole v. Standard Life Ins. Co., 170 Miss. 330.
Argued orally by Ely B. Mitchell, for appellee.
Abraham Medford died intestate on March 5, 1911, owning at the time a homestead of one hundred sixty acres, and also some other adjoining land. He was survived by his wife and ten children. The widow has continued to occupy the homestead. One of the questions raised is whether a widow occupying and using the exempt homestead of her deceased husband is liable personally and primarily for the payment of the ad valorem taxes assessed against the homestead property.
The statute conferring this right of occupany and use, section 1412, Code 1930, reads as follows: "Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood, as long as it is occupied or used by the widow, unless she consent."
The briefs for both sides evidence more than ordinary diligence and industry, but no case directly in point upon the stated question is cited; nor have we been able to find such a case upon an independent search. We are obliged, therefore, to adjudicate the question, reasoning from general principles. We are of the opinion that the estate or right or interest vested by the quoted statute in the widow is more nearly analogous to a life estate than to any other to which it may be likened. She has the right to occupy and use the homestead during her life, provided she remain a widow, and she has, of course, the right to remain a widow. We hold, therefore, that the obligation of a widow in such case in respect to the payment of ad valorem taxes upon the property is the same as that of a life tenant; and it is well settled that a life tenant in possession enjoying the income of the property must pay the ordinary taxes, save under exceptional circumstances, none of which latter have been shown to have existed in this case. See 21 C.J., pp. 955-957; 17 R.C.L., pp. 636, 637.
On July 14, 1916, one of the heirs at law of Abraham Medford, to wit, Dovie Medford Miles, joined by her husband, conveyed to appellee, by deed, absolute in form, her undivided one-eleventh interest in the lands inherited from the said father. The said Dovie Medford Miles thereafter died intestate leaving as her heirs at law her husband and her three children. The heirs at law of Dovie Medford Mills were not joined as parties to the bill of complainant in this case, and no steps were taken in the manner required by law to show that they were necessary parties. But some of the other co-tenants, brothers and sisters of Dovie Medford Miles, who are parties to the suit, sought to raise the question that the deed aforesaid, although absolute in form, was in fact intended as a mortgage, and a considerable portion of the briefs is devoted to a discussion of this supposed issue.
We are of the opinion that such an issue was not properly before the court. A tenant in common of an undivided interest in real estate has the right to convey that interest to a third person, without let or hindrance by the other tenants in common. It follows that whether a deed by one tenant in common to a third person is a deed absolute or only a mortgage is a question with which the other tenants have no legal concern. It further follows that there must come into operation upon this point the elemental principle of procedure, "that no party shall be entitled to interpose a test or objection except the particular party who is affected by the matter which the test or objection would challenge." Griffith Miss. Chan. Pr., secs. 81 and 585.
There are other questions argued at length by appellants, but these are upon issues respecting which the law is well settled, and which, therefore, in the last analysis require a review of the findings of fact by the chancellor. In all those findings his decree is sustained by reasonable and believable substantial evidence, not overwhelmingly disputed; wherefore under familiar rules, we are without authority to interfere.
Affirmed.