Bacot v. Holloway

• Decision Date: 08 June 1925
• Docket Number: 23441
• Court: Mississippi Supreme Court
• Parties: BACOT v. HOLLOWAY. [*]

104 So. 696

140 Miss. 120

BACOT v. HOLLOWAY. ^[*]

No. 23441

Supreme Court of Mississippi

June 8, 1925

Division B

Suggestion of Error Overruled July 2, 1925.

APPEAL from chancery court of Quitman county, HON. G. E. WILLIAMS Chancellor.

Suit by W. C. Bacot against Mrs. A. E. Holloway and another. From a decree quieting title in the named defendant, but providing that she pay a certain sum to complainant, complainant and said defendant appeal by direct and cross appeal. Affirmed in part, and reversed and remanded in part.

Decree affirmed in part; and reversed in part. Motion dismissed.

M. E. Denton, for appellant.

Appellant was a purchaser for a valuable consideration without notice of any claim by appellees, and there is nothing in the record to even hint that there was anything on the land records or other records of Quitman county, showing that appellee had any title or claim whatever to the land, and therefore, W. C Bacot became the owner as against appellee and the whole world, under our statutes requiring instruments to be recorded, even though she or others may have had an unrecorded instrument showing good title in her or them unless appellant had actual knowledge of such instrument or committed actual fraud in recording his deed first; and nothing of the sort is shown by the testimony. Hemingway's Code, section 2288, Code of 1906, section 2784.

A purchaser of the fee will take the title though another actually has a prior executory contract for the purchase of the same land, and the first to receive the deed gets it for value without notice of the prior contract. 27 R. C. L. 562, Note 10; Haggan v. Woods Heirs, 2 Ky. (Ky. Dec.) 273; Hardin's Executor v. Harrington, 74 Ky. (11 Bush.) 367; Martin v. Thomas, 49 S.E. 118, 56 W.Va. 220; Combs v. Hall, 60 S.W. 647, 22 Ky. Law Rep. 1418; Fowles v. Bentley, 115 S.W. 1090, 135 Mo.App. 417; Marble Co. v. Mead, 80 A. 852, 85 Vt. 20.

In such a case our court has held that a purchaser under such circumstances takes the title, although the agent of the vendor told him that other persons had been negotiating for the land but the negotiations had been dropped. Curtis v. Blair, 26 Miss. 309, cited in: 27 R. C. L. 562, Notes 10 and 11; Frank v. Stratford-Hancock, 67 L. R. A. 571.

Every contractual or express trust, especially trusts for the holding of land for another must be evidenced by writing, acknowledged and recorded, and such contract or agreement, only takes effect from the time it is "lodged for record." The alleged agreement under the appellee's claim that William Bacot or W. Bacot afterward, W. C. Bacot, consented that Mrs. Bacot, now Mrs. Holloway, might use his name in buying land for her, whether it was written or oral, because such agreement was never recorded, has never taken effect as against appellant who had no notice of their claims. Hemingway's Code, section 3124; Code of 1906, section 4780.

Appellees made no proof whatever that they had any possession of the executory contract. We think the testimony shows clearly that appellees never had possession of it, claiming it as their own, but that we have made indisputable proof that it was in the hands of appellant continuously since it was delivered to him by his brother, J. R. Bacot, early in 1901. Certainly it was necessary for them to make very strong proof of possession of the contract. Stovall v. Judah, 74 Miss. 747, opinion 752; Selph v. Purvis, 49 So. 289, 57 Fla. 188; 2 Chamberlayne Modern Law of Evidence, sec. 1010; Lucas v. Hensley, L. R. A. 1918 B, 875, opinion 876, Note 879.

Wherever the attention of the courts has been called to the exact question, they have held uniformly that the proof of possession of a lost instrument must be made by evidence so strong, clear, convincing and satisfactory as to require the proof to come almost beyond a reasonable doubt. L. R. A. 1918 B, 875, opinion 876, Annotation 879; Lloyd v. Simmons, 105 N.W. 902, 97 Minn. 315; Peters v. Worth, 164 Mo. 431, 64 S.W. 409; Johnson v. McKaney (Tenn.), 53 S.W. 229.

If Mrs. Bacot ever had a contract, she abandoned it by allowing J. J. Dickey and Abels and Barclay and their sub-tenants to make contracts with W. C. Bacot, signed by them and by him alone, by allowing W. C. Bacot to pay all taxes and the amount owing to the railroad company under their executory contract, and the railroad, after such abandonment, had a right to deed the land to W. C. Bacot or anyone else. Native Lumber Co. v. Elmer, 117 Miss. 720, opinion 733, and citations. Abandonment in such cases need not be in writing. 19 L. R. A. (N. S.) 881, Note.

Where one who holds title under bond for title and has paid part of the purchase money agrees orally that a third party may pay the balance and receive the deed, when this balance is paid by and delivery made to the third party, it is binding on all parties. Samuel Aird et al. v. Alexander, 72 Miss. 358. Giving the testimony of Mrs. Bacot its utmost consideration, she never, under any circumstances, acquired the right in any way to use the name of William Bacot, and she does not claim to have done so. According to her statement, which is against the overwhelming testimony of other witnesses who were present, she might have had the right to use the name of W. Bacot & Co., but the record does not reveal any possible claim to this land as acquired through W. Bacot & Co. If it was meant that W. Bacot & Co., or William Bacot should be used, then the evidence of such intent should have been recorded as required by our statute; otherwise, it was, and is, a nullity. The lower court erred at least in not allowing appellant the money spent in good faith by him on the land for improvements and in making payments to the railroad company for the purchase price.

Clayton D. Potter, also, for appellant.

From her cross-bill, and from her own evidence, it is certain that Mrs. Bacot, when she testified that she made the payments on the land in question, was testifying to a conclusion which is in no wise borne out by the record. The cross-bill, excerpts from which have been quoted before, and her own evidence shows that she did not have personal knowledge or claim personal knowledge, as to the payments; and if she did, or intended to, in the face of the documentary evidence produced by the railroad company, and the other overwhelming proof in the record, her mere assertion without dates, figures or receipts could not be taken as true. If, on the evidence in this record, the Chancellor intended to find that Mrs. Bacot made the payments subsequent to 1901 to the railroad company, such finding would be manifestly contrary to the established proof in the case. Hardy v. Masonic Benefit Assn., 103 Miss. 108, 60 So. 48; Fore v. A. & V. R. R. Co. 87 Miss. 211, 39 So. 493; So. R. R. Co. v. Elder, 118 Miss. 856.

Under the evidence in this case, where an agent had such general authority as J. R. Bacot had, he would have been authorized to have made a deed to the property in question, had the title actually been in Mrs. A. E. Bacot, for her cross-bill shows that he attended to all of the deeds and matters of that kind, was her attorney in fact, and had authority to sign her name, and under the law such authority could be verbal and not written, in so far as to prevent cross-complainant from obtaining any affirmative relief. Lobdell v. Mason, 71 Miss. 937, 15 So. 44.

But in the case at bar, it was J. R. Bacot who had the physical possession of the contract up until the time of the transfer to W. C. Bacot; it was J. R. Bacot who, because of his debts, was disqualified to do business in his own name, and sought the permission of his father to do business in the name of W. Bacot and Company; it was to J. R. Bacot that this permission was given by Dr. William Bacot; it was largely J. R. Bacot's means, if not solely his means, obtained from his father and saved from his former bankrupt ventures, upon which the business in Clarksdale was started, and from which business the initial payments, amounting to about three hundred forty-two dollars were made to the railroad company; it was J. R. Bacot with whom the railroad company always dealt; it was J. R. Bacot who made all of the contracts with reference to the land; and J. R. Bacot was, at all events, up to the time of his death the general agent, manager and attorney in fact for Mrs. Bacot, and in writing he acknowledged that he had received, while so acting, the full purchase price of the property in question and had directed the railroad company to make a deed to the property in question. His recitals in his letter to the railroad company are not contradicted by any witness or circumstance in the case. Therefore, we most respectfully submit that just as certain as the railroad company did convey the legal title to W. C. Bacot by their warranty deed made at the request of J. R. Bacot, just so certain did the railroad company also convey to W. C. Bacot the equitable title to such property. We respectfully submit that the evidence in this case shows plainly that J. R. Bacot, in whatever capacity he acted, either as owner, partner, or accredited agent of Mrs. Bacot, received the consideration and caused to be made by the railroad company, the owner, a warranty deed to W. C. Bacot to the property in controversy.

We most respectfully submit that the decree of the Chancellor in this case is wholly without evidence to sustain it; that, on the other hand, the positive uncontradicted evidence, the established proof in the case, shows that the legal and equitable owner of the property in question is W. C. Bacot, and that for years he has been deprived of his rights in the premises.

Cutrer & Smith, for appellee.

J. R Bacot did not occupy the land for W. C. Bacot, or do anything else which...