Barksdale v. Learnard

• Decision Date: 29 January 1917
• Docket Number: 18599
• Citation: 112 Miss. 861,73 So. 736
• Court: Mississippi Supreme Court
• Parties: BARKSDALE v. LEARNARD ET AL

73 So. 736

112 Miss. 861

BARKSDALE v. LEARNARD ET AL

No. 18599

Supreme Court of Mississippi

January 29, 1917

Division A

APPEAL from the chancery court of Monroe county, HON. A. J MCINTYRE, Chancellor.

Suit by H. Clay Barksdale against Mrs. J. P. Learnard and others. From a decree, complainants appeal, and D. R. Herron takes a cross appeal.

The facts are fully stated in the opinion of the court.

Decree affirmed on direct appeal, reversed on cross-appeal and bill dismissed.

Gates T. Ivy and Roberds & Beckett, for appellant.

Critz &amp Critz, Paine & Paine and Leftwitch & Tubb, for appellees.

OPINION

SMITH, C. J.

This is a suit for the partition of land instituted by appellant, who claims to be the owner of a one-half interest therein.

In 1887 Dr. T. W. Spruill died seised and possessed of the land leaving as his heirs at law his widow, two sons, and a daughter, Mrs. Maggie S. Barksdale. In May, 1892, Mrs. Spruill and her two sons, by deed duly executed and recorded, conveyed their interest in the land to Mrs. Barksdale, and she continued the owner thereof until her death, which occurred October 2, 1893. She left surviving her as her sole heirs her husband, H. C. Barksdale, and one son, H. Clay Barksdale, the appellant who was then an infant four years old. In January, 1893, prior to her death, Mrs. Barksdale and her husband executed a deed of trust to Hearn & Co. to secure the payment to him of their joint notes aggregating the sum of three thousand, three hundred thirty-six dollars and fifty cents due January 1, 1894 and 1895, and advancements to be thereafter made by Hearn to them. That the grantors in this deed of trust were husband and wife was not disclosed either in the body or in the acknowledgment thereof. On February 1, 1894, after Mrs. Barksdale's death, her husband, H. C. Barksdale, executed another deed of trust to Hearn & Co. on "all the interest of the party of the first part" in the land described in the former deed of trust. On March 15, 1898, the deed of trust executed by Mrs. Barksdale to Hearn & Co. was foreclosed and the land bought in by H. C. Barksdale for the sum of four thousand, nine hundred and fifty dollars. The deed executed to him by the trustee pursuant to this sale acknowledged payment of this sum, but it appears from the evidence that no money was in fact paid by Barksdale, but that the amount of his bid was credited by Hearn & Co. on the notes given by Mr. and Mrs. Barksdale, and Barksdale then executed to them a new note for the sum of five thousand, five hundred dollars securing the payment thereof by a deed of trust on the land duly executed and recorded. On April 25, 1898, Barksdale executed a second deed of trust on the land to Hearn & Co. securing the payment to them of the sum of five thousand, five hundred dollars to correct an error in the first deed of trust executed by him. In the preambles of both of these deeds of trust after the name of the grantor, H. C. Barksdale, appears in parenthesis the word "widower." Barksdale seems to have been living on the land at the time of his wife's death, but some time thereafter and prior to the year 1900 he removed therefrom, and did not thereafter live thereon. His son, appellant, resided with him. On January 1, 1900, H. C. Barksdale sold the land to R. D. Herron by warranty deed for the sum of eight thousand, six hundred thirty-two dollars, the receipt thereof being acknowledged in the deed, and with which the notes due by Barksdale to Hearn & Co. were paid and Hearn's deed of trust satisfied. At the time Herron made this purchase he saw the deed of trust given by Mrs. Barksdale and her husband to Hearn & Co., but made no inquiry into the state of the title to the land. He did not know until some time after his purchase of the land that Maggie S. and H. C. Barksdale were husband and wife, nor that Mrs. Barksdale was dead and had left a son surviving her. The only notice he had as to the state of the title was that with which he was charged by the recorded deeds and deeds of trust dealing therewith. Herron immediately went into possession of the land and continued in possession thereof until he sold the same to appellees Learnard and Walker. On December 3, 1906, Herron sold forty acres of the land to Fred and Felix Walker for a cash consideration of one thousand, two hundred dollars; the Walkers on the same day executing to him a deed of trust to secure the payment of three notes aggregating the sum of one thousand, three hundred fifty-seven dollars and sixty-eight cents, which deed of trust, so far as the record discloses, has never been satisfied. One of the Walkers afterwards executed a deed of trust to the First National Bank of Aberdeen to secure the payment to it of an indebtedness due it by Walker, which deed of trust is still in full force and effect. On December 3, 1906, Herron executed a deed of trust on the land, excepting that sold to the Walkers, to W. A. Kirkpatrick to secure a note for six thousand dollars due him by Herron, which note and deed of trust securing it were by Kirkpatrick assigned in July, 1910, to G. B. Gehlert. On August 23, 1910, Herron sold the land, excepting that previously sold by him to the Walkers, by deed duly executed and recorded, to J. P. Learnard, the consideration therefor being seven thousand dollars in cash, the assumption by Learnard of six thousand dollars due by Herron to Gehlert, and four notes executed to Herron by Learnard for one thousand, seven hundred fifty dollars each, due respectively July 22, 1911, 1912, 1913, and 1914. All of these notes except the last had been paid by Learnard when the bill in this case was filed. Learnard died on April 30, 1913, and by last will and testament devised the land to his widow and two children, Robert and Josephine. H. C. Barksdale, appellant's father died in December, 1956; and appellant became twenty-one years of age on August 9, 1910. As the decision of the cause does not turn upon any knowledge which appellant may or may not have had of his rights in the premises prior to the filing of his bill, a statement of his claim and of the evidence relative thereto is not here material.

The parties defendant to the bill are Herron, Mrs. Learnard, her children, the Walkers, and the parties now holding deeds of trust on the land. The prayer of the bill is for a partition of the land and for an accounting to appellant by the Learnards and Walkers for the rents and profits thereof and for appropriate relief with reference to the incumbrances thereon.

One of appellees' defenses to the bill is that they are all bona fide purchasers and incumbrancers of the land, as the case may be, for value without notice of appellant's claim to an interest therein.

Appellant denies that appellees are purchasers and incumbrancers of the land for value without notice of his claim thereto, and contends that, conceding this to be true, such defense is not available against him, because: First, the purchaser for value without notice defense is available only against the holder of a secret equity, and that his interest in the land is legal, and not equitable, for the reason that the purchase thereof by his cotenant at the trustee's sale inured to his benefit; and, second, he was an infant at the time the various deeds and deeds of trust set up by appellees were given.

The court below held that "Herron bought said land with notice of complainant's interest therein," that the Walkers "paid a valuable consideration therefor without notice of Complainant's claim," that Learnard purchased from Herron without notice of complainant's interest in the land, and that his widow and children are entitled to the protection accorded a bona fide purchaser without notice, except as to the note and interest thereon executed by Learnard to Herron remaining unpaid at the time appellant's bill was filed, and that Gehlert, Kirkpatrick's assignee, and the First National Bank of Aberdeen were innocent incumbrancers for value without notice of appellant's claim and decreed that the only relief to which appellant was entitled was to receive from the Learnards the money due on J. P. Learnard's unpaid note to Herron. From this decree there is a direct appeal by H. Clay Barksdale, complainant in the court below, and a cross-appeal by Herron.

Counsel for appellant do not claim that Herron had any actual knowledge of appellant's interest in the land but that he must be charged with constructive notice...