Opinion
No. 30341.
January 9, 1933.
1. VENDOR AND PURCHASER.
Possession of real property is constructive notice of occupant's title to same extent as that imputed by record of deed to him thereto.
2. VENDOR AND PURCHASER.
Tenant's possession is not only notice of his title, but also of his lessor's title.
3. VENDOR AND PURCHASER.
To constitute notice of lessor's title, tenant's possession must begin after lessor acquired title.
4. EXECUTION.
Purchasers at sale under executions held charged with notice of title of judgment debtor's grantee whose tenant took possession after execution of deed and prior to time judgments were enrolled, though deed was recorded after enrollment.
APPEAL from chancery court of Newton county. HON. A.B. AMIS, Chancellor.
Gabe Jacobson, of Meridian, and Shannon Schauber, of Laurel, for appellants.
Under our present registry statutes the unrecorded deed under which the appellee claims title to the property in question is void as to the appellants, who obtained a judgment lien against the property which was duly enrolled before the unrecorded deed was filed for record and afterwards purchased the property at an execution sale thereunder.
Sections 2146, 2147, 2148, Code of 1930.
The appellants having no notice of the unrecorded deed and the character of the property in question being commercial property and used as such, never having been actually occupied by the alleged owners, the vendor and the vendee of the unrecorded deed, but only by their tenants who continuously carried on in the property the same kind of business as their predecessors, the appearance of the property and premises never changing and the business sign always remaining the same; that there was no change in the character of the business conducted on the premises; thus there was not a sufficient change in the occupancy of the property as is calculated to arrest the attention and put the subsequent purchasers upon inquiry.
Whenever an instrument which the registry laws require to be recorded has been made by a grantor having a beneficial interest in the property conveyed which is vendible under execution, and such instrument remains unrecorded, a judgment creditor who has no actual notice of it, nor anything to put him on inquiry, may subject the interest of the grantor exactly as if he had made no such instrument, and the purchaser at the execution sale will obtain a title superior to the rights of those who claim by, through or under the unrecorded instrument.
Sack v. Gilmer Grocery Co., 149 Miss. 296, 115 So. 339.
Execution sale of land good against prior unrecorded deed.
Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435.
In order for change of possession of lands, occupied by tenants to constitute notice of a sale by the defendant in execution to a vendee in an unrecorded deed, it must be such a change as is calculated to arrest attention and put creditors and subsequent purchasers upon inquiry.
Stevens v. MaGee, 81 Miss. 644, 33 So. 72.
But, that possession may have the effect of protecting the title under which it is held, it must be of that character which would arrest attention. The ceremony of livery of seizin was performed openly, in the presence of the freeholders, for the purpose of attesting the act. Registration was adopted as a substitute for the purpose of conclusively imparting notice.
Loughridge v. Rowland, 52 Miss. 553.
The law is well settled that, under our recording laws, subsequent purchasers and creditors acquiring subsequent liens by judgment or otherwise without notice of a prior unrecorded deed will be protected against such unrecorded conveyance, unless the party claiming thereunder can show that such subsequent purchaser or lien creditor acquired his title or lien with notice of such unrecorded conveyance; and the burden of showing such notice is upon the party claiming under such unrecorded conveyance. All the presumptions in such a case are in favor of the bona fides of such subsequent purchaser or lien creditor, and that they acquired their subsequent title or lien in good faith and without notice of the unrecorded conveyance.
Carolina Portland Cement Company v. Roper et al., 67 So. 116.
When the person in possession is other than the grantee, it is necessary that there should be a visible change, which should indicate to others that there had been a sale, to have the effect of giving notice to a subsequent purchaser or attaching creditor.
Veasie v. Parker, 23 Me. 170; Stockton v. The National Bank (Fla.), 34 So. 900.
The record of a deed of trust conveying land to secure a promissory note, with nothing on its face to show that the note evidenced a purchase money debt for the land, will not constitute constructive notice of an unrecorded deed by which the beneficiary acquired the land.
Hart v. Gardner, 81 Miss. 650, 33 So. 72.
The change of possession must be such that a stranger could observe it, and the facts must be such as to arrest notice or put a creditor or purchaser on inquiry.
Wade on Notice, secs. 288 and 289.
A.B. Amis, Jr., of Newton, for appellee.
We respectfully call the court's attention to the written opinion of the chancellor as shown in the transcript, wherein are cited the following cases, which determine the questions at issue here:
Dixon Starkey v. Doe, ex dem. Lacosta, 1 S. M. 70; Loughridge v. Rowland, 52 Miss. 546; Levy v. Holberg, 67 Miss. 526, 7 So. 431.
Argued orally by Gabe Jacobson, for appellant, and by A.B. Amis, Jr., for appellee.
This is a suit in equity wherein the appellee seeks to cancel a claim of the appellant to real property, which the appellee alleges is a cloud on his title thereto. The case was tried on bill, answer, and proof, and there was a decree in accordance with the prayer of the appellee's bill of complaint. The essential facts disclosed by the pleadings and the evidence are, in substance, as follows: The property was owned by, and in the possession of, Russell, who conveyed it, for a valuable consideration, to the appellee in June, 1928; but the deed from Russell to the appellee thereto was not recorded until some time in January, 1930. In December, 1929, two judgments were rendered against Russell and enrolled in the county wherein the property lies. On August 5, 1930, executions were issued on these judgments, the property sold thereunder, and purchased by the appellants. Neither the judgment creditors nor the appellants knew of the sale of the property by Russell to the appellee. The property consists of a small plot of ground on which there is a building, which, while Russell owned it, and continuously thereafter, was used partly as a residence and for the operation of a gasoline filling station and a grocery store. The filling station was and is known as the "Gulf Service Station;" a large sign to that effect being conspicuously displayed thereon. Russell was in possession of the property by a tenant, who lived thereon and operated a filling station and grocery store. When the appellee purchased it, a change was made in the person of the occupant, but the business continued to be operated in the same way as theretofore under a tenant or occupant holding under an accounting to the appellee.
The question for decision is whether the appellee was in such possession of the building as to charge the appellants with notice thereof.
The possession of real property is constructive notice of the title of the occupant to the same extent as that imputed by the record of a deed to him thereto. Dixon v. Doe ex dem. Lacoste, 1 Smedes M. 70; Bolton v. Roebuck, 77 Miss. 710, 27 So. 630. And the possession of a tenant is not only notice of his title thereto, but is also notice of that of his lessor. Levy v. Holberg, 67 Miss. 526, 7 So. 431. The only limitation on this rule is that the possession of the tenant, in order to constitute notice of his lessor's title, must begin after the lessor acquired his title. Loughbridge v. Bowland, 52 Miss. 546. This is in accord with the weight of authority elsewhere.
The appellants' contention is that the Loughbridge v. Bowland rule is unsuited to modern conditions, especially as applied to urban property where changes in the tenancy of buildings devoted to business purposes are frequently and usually accompanied by no such change in the use of the buildings as to attract attention and indicate that there has been a change in the ownership thereof. For these reasons, they say that Loughbridge v. Bowland should be either overruled, or that the rule therein announced should be so modified as to require the use to which the property is put by its new occupant to be such as of itself to indicate that there has been a change in the ownership of the property.
Practically the same objections to the Loughbridge v. Bowland rule existed when that case was decided as do now. It was decided more than fifty years ago after mature consideration, has been consistently adhered to since, and is in accord with practically all of the American authorities. Consequently, we should not overrule it even if we doubted its soundness, which we do not. To modify the rule, as suggested, would bring too great an element of confusion and uncertainty into its application, and no authority therefor has been called to our attention. In some jurisdictions no change in tenancy after the lessor acquires title is necessary; good reasons being given therefor. No hardship can result from refusing to modify the rule and continuing to hold persons who desire to purchase or obtain liens on property to the necessity of ascertaining whether or not it is in the possession of a person other than its owner; and, if so, what the title of the possessor is, and, if he claims under another, what the title of such other is.
Affirmed.