Barron v. Federal Land Bank of New Orleans

• Decision Date: 04 April 1938
• Docket Number: 33151
• Court: Mississippi Supreme Court
• Parties: BARRON v. FEDERAL LAND BANK OF NEW ORLEANS

180 So. 74

182 Miss. 50

BARRON v. FEDERAL LAND BANK OF NEW ORLEANS

No. 33151

Supreme Court of Mississippi

April 4, 1938

Division B

APPEAL from the chancery court of Simpson county, HON. BEN. STEVENS Chancellor.

Suit by E. W. Barron against the Federal Land Bank of New Orleans and others for cancellation of deed of trust and trustee's deed on property claimed by complainant and for general relief, wherein the named defendant filed a cross-bill. From a judgment dismissing the bill of complaint and confirming title of the named defendant to the land, the complainant appeals. Affirmed.

Affirmed.

J. P. & A. K. Edwards, of Mendenhall, for appellant.

The title to the land did not pass to A. B. Mahaffey for the reason the wife of appellant did not sign the deed, since the land consisting of the five acres was the homestead of the appellant.

Bolen v. R. G. Lilly & Son, 37 So. 811.

If the purported deed of the appellant to A. B. Mahaffey is void then title did not pass to A. B. Mahaffey, and since A. B. Mahaffey had no title, then the appellant did not acquire title when he got his deed back. On the contrary, if the appellant passed title to A. B. Mahaffey, then he acquired title from A. B. Mahaffey when he purchased the five acres back. In either event the title was in the appellant after the attempted sale and for the three years he lived in the home on the five acres and it was in him when he moved to the "river place" and the records in Simpson County were notifying the world that appellant had title and that A. B. Mahaffey had no title. The purported deeds between appellant and A. B. Mahaffey were not recorded.

When the appellee took the deed of trust on this land the records were "crying out" and proclaiming in loud tones and advising the appellee that A. B. Mahaffey did not have record title nor any title whatsoever, and that it had better advise itself more fully and look into the "missing link" that something was wrong. The appellant who left for Louisiana and left the place in charge of his tenant who paid the taxes for the use of the place knew nothing of the fact that the appellee had executed a deed of trust on this land or that his tenant had executed a deed of trust on the land and he is not thereby estopped from claiming title to the land.

Scottish American Mortgage Co. v. Buckley, 41 So. 502; Dead River Fishing & Hunting Club v. Stoval, 113 So. 336.

The evidence in this case shows that the appellee did not approve its case on adverse possession for the record discloses from every witness who testified that the five acres in question belonged to E. W. Barron, the appellant, and that the tenant, John J. Mahaffey, swore he held as the tenant of the appellant, and that he paid the taxes for the use of the place and that he made an error in executing a deed of trust, or the deed of trust to the appellee, in that in filling out the description in the deed of trust it was drawn embracing land in former deeds in his chain of title, and that he never at any time claimed the land for himself adversely to the appellant.

There is no evidence of adverse possession.

Dead River Fishing & Hunting Club v. Stoval, 113 So. 336.

The burden to establish adverse possession was on the appellee.

Lovejoy v. McKibben, 74 So. 281; Cummings v. Busby, 62 Miss.

James B. Sykes, of Mendenhall, for appellee.

Appellee is aware of the fact that the general rule is that the signature of the wife is necessary to make a valid conveyance of the homestead. This rule follows the statute, Section 1778. of the Mississippi Code of 1930, but to this rule there is an exception as in this case, abandonment.

The only thing and the only right to which the wife is entitled is the veto right, because she can certainly have no right in the selection of the homestead, because it is the intention of the husband which governs in the selection of a homestead. It therefore follows that if the husband has the right to select the homestead, and if in the instant case the husband did select another homestead, and the wife elected to reside on the new homestead, it then follows as a natural result that there was an abandonment of the original homestead. The record in this case further discloses that the appellant has selected two homesteads since occupying the lands in controversy as such, and that he has continuously resided on the two homesteads so purchased for a period of more than twenty-five years, the last ten years of which were spent in the State of Louisiana, where he purchased a home, and no attempt was made during said twenty-five years to reclaim the original lands here involved.

Ross v. Porter, 72 Miss. 361, 16 So. 906.

An exemptionist who sells his homestead in order to make a change of residence on which he has resolved and which he afterwards effects, can before removal execute a valid conveyance of his property without his wife joining in the manner prescribed by statute.

Wilson v. Gray, 59 Miss. 525; Lindsey v. Holly, 105 Miss. 740, 63 So. 222; Salter v. Embrey, 18 So. 373.

It has been held that when a conveyance of a homestead is made by a husband alone, and both husband and wife vacated the premises and gave the grantee possession, this will estop either or both of them from denying the validity of the conveyance.

45 A.L.R. 435; Brown v. Coon, 36 Ill. 243, 85 Am. Dec. 402; Fishback v. Lane, 36 Ill. 437; Shay v. Bents Salt Rock Co., 72 Kan. 208, 83 P. 202; Bouine v. Selden, 155 Mich. 556, 130 Am. St. Rep. 579, 119 N.W. 1090; Lucy v. Lucy, 107 Minn. 432, 131 Am. St. Rep. 502, 120 N.W. 754; Kirby v. Blake, 53 Tex. Civ. App. 173, 115 S.W. 674; Wichita Natural Gas Co. v. Ralston, 81 Kan. 86, 105 P. 430; Stenes v. Smith, 49 Tex. Civ. App. 126, 107 S.W. 141.

It is the contention of appellant that sufficient facts were not established to warrant the court in finding that the appellee had acquired rifle to said property by adverse possession. We think that this contention is directly in conflict with all of the evidence in this case, because it was conclusively shown that from the year 1909 up to the filing of this suit that the land in question had been in the possession of the Mahaffey family, that it had been conveyed back and forth by various members of that family; that they had used it as their own in every conceivable way and manner; that they cut timber therefrom and sold same; that they farmed said land; that they had it assessed to them; that they paid all of the taxes due thereon; that one of them, J. J. Mahaffey, built him a home thereon; that both he and his father executed deeds of trust on said land, and that their respective claims to said land were openly and notoriously asserted for a period of more than twenty-five years, and that such acts were open and notorious, and their claim to said land was never questioned by appellant, and this is true even though appellant knew, as is shown by his testimony, that the land was being conveyed to various members of the Mahaffey family during said period.

OPINION

Ethridge, P. J.

E. W. Barron filed a suit against the Federal Land Bank, Bee King, a trustee in a deed of trust, and J. J. Mahaffey and wife, who were grantors in the deed of trust to the Federal Land Bank, setting up that the complainant was the owner of five acres of land in the northeast corner of the southwest quarter of the southeast quarter of section 29, township 2, range 2, Simpson county, Miss.; that complainant had acquired title to said lands from the United States government, and that his deed was recorded in the chancery clerk's office, in Book 53, page 534, in said county. He further averred that on the 15th day of October, 1932, J. J. Mahaffey and his wife, through mistake, executed a deed of trust to the Federal Land Bank on the property aforesaid, and that at the time the deed of trust was executed the Federal Land Bank and the trustee in the deed of trust knew that J. J. Mahaffey and wife did not have title to the said land; that the deed of trust was recorded in Book 23, page 207, in the office of the chancery clerk in said county; that it was further averred that on the 22d day of March, 1935, the deed of trust was foreclosed, and the Federal Land Bank became the purchaser at the trustee's sale, the trust deed being recorded in Book 188, at page 268, in the office of the clerk of the chancery court.

It was alleged that no title passed by the execution of the deed of trust given by J. J. Mahaffey and wife, for the reason that they had no title in the land, but that it belonged to the complainant in fee simple, which fact was known to the defendant, the Federal Land Bank, and to the trustee in the said deed of trust. It was further averred that J. J. Mahaffey and his wife did not intend to execute a deed of trust on this land, knowing they had no interest therein, and did not claim any, and are not now claiming any interest; but are made defendants in the suit for the reason that if they have any claim they may have opportunity to assert it.

The bill prayed for relief by the cancellation of said deed of trust and the trustee's deed on the said property, and for general relief. The Federal Land Bank answered, reciting that Barron homesteaded the land in question, but denying that he was the then owner of the said land described in the bill; and averred the truth to be that the defendant was the owner, having acquired title through J. J. Mahaffey and wife by a deed of trust executed in 1923, and recorded in the office of the chancery clerk; admitted that complainant was once the owner, but denied that he was at the time of the execution of the deed of trust, stating that he had conveyed the land to A. B. Mahaffey in or about the year 1905, in exchange for eight acres of land...