Crago v. Vitter

• Decision Date: 17 March 1919
• Docket Number: 20423
• Citation: 120 Miss. 103,81 So. 646
• Court: Mississippi Supreme Court
• Parties: CRAGO v. VITTER

81 So. 646

120 Miss. 103

CRAGO v. VITTER

No. 20423

Supreme Court of Mississippi

March 17, 1919

Division B

1. VENDOR AND PURCHASER. Recording as notice.

Where a deed granting to defendant the right to put up a bath house and wharf in front of the grantor's property was recorded prior to the purchase of the property by plaintiff or her mother, plaintiff was charged with notice of the rights conferred on defendant by such deed.

2 EASEMENTS. Description of property. Sufficiency.

In this case the court held that the provisions in the deed granting to the defendant the right to put up a wharf and bath house in front of the property of the grantors on the beach was sufficiently certain in description and conveyed an easement into the waters fronting the beach appurtenant to the lot sold to defendant, and that such grant was irrevocable by the grantor or those claiming under him.

3 SAME.

The court further held that if there was any uncertainty in the description on the deed it was a latent and not a patent ambiguity and could be aided by parol testimony.

HON. W M. DENNY, Chancellor.

APPEAL from the chancery court of Harrison county, HON. W. M. DENNY, Chancellor.

Bill by Bertha A. Vitter against William Crago, who filed an answer and cross-bill. From a decree for complainant defendant appeals.

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

Judgment reversed and cause remanded.

Green & Green, for appellants.

Robert B. Mayes, Robert Powell and J. A. Leathers, for appellee.

OPINION

ETHRIDGE, J.

The appellee was complainant in the court below, and filed a bill in the chancery court to enjoin appellant from erecting a wharf and bathhouse in front of the property of complainant. The property described in the bill and exhibit is all that certain tract of land, together with all improvements thereon, except lots 8, 10, and 12, having a front on the Gulf of Mexico of one hundred and twenty-five feet, extending back between parallel lines to the right of way of the Louisville & Nashville Railroad, bounded on the east by a street laid out in the Bienville addition of the city of Biloxi, and the prolongation thereof to the seashore; on the west by Sylvania avenue; on the north by the right of way of the Louisville & Nashville Railroad; on the south by the Gulf of Mexico.

It is alleged that the defendant, without authority or permission from the complainant, is attempting to build and is building and constructing a wharf or pier and bathhouse on the beach front of complainant's land so described. The defendant filed an answer and cross-bill setting out a claim of right to erect the wharf and bathhouse under the provisions of the deed to him made by Mrs. M. C. Bettison, Edmund G. Bettison, Margaret C. Bettison and Ellen R. Bettison, conveying lots 8, 10, and 12 in Hartease Park, according to the plan of said park made by D. N. Brosnan, civil engineer and surveyor, dated June 6, 1894, annexed to a deed by Mrs. Hattie S. Marion to Ulric Bettison, dated June 23, 1894. The deed to William Crago recited that Ulric Bettison died on August 16, 1900, leaving his widow and children as heirs, and also a minor grandchild, Hattie Lee Grigsby, about eighteen years of age, and, among other things, the deed contains the following provisions relied upon by the defendant in this case as a foundation of his right to erect the pier and bathhouse:

"And we bind ourselves that the said minor child, Hattie Lee Grigsby, shall execute a deed transferring her interest in said property to the said purchaser as soon as she shall have arrived at the age of majority, And we do hereby grant to the said purchaser the right to put up a wharf and bathhouse in front of our property on the beach. Which lots are a portion of the same property acquired by the said Ulric. Bettison by deed dated June 23, 1894, from Hattie S. and Thophilus Marion, and recorded in the clerk's office for Harrison county in Book No. 30, pages 317, 318 and 319."

This deed bears date of the 20th day of July, 1909, was acknowledged the same date, and filed for record at 5 o'clock on the 7th day of August, 1909,

Defendant also relied upon the deed from Hattie Lee Grigsby to the said property containing similar clauses and references as the first deed to the defendant above referred to, which deed is dated March 26, 1910, acknowledged the same date, and filed for record at 1:30 p. m. on April 14, 1910.

The complainant relied upon the deed from Mrs. Margaret Catchart Bettison, Miss Ellen Rapp Bettison, Miss Hattie Lee Grigsby, Edmund G. Bettison, Margaret Bettison, and D. C. Bettison, dated December 29, 1909, to Mrs. Marie E. Artigues, which deed contains the following acknowledgments:

"State of Louisiana, Parish of Orleans.

"Before me, the undersigned, a notary public in and for the above...