Dampier v. Polk

• Decision Date: 21 April 1952
• Docket Number: No. 38230,38230
• Citation: 214 Miss. 65,58 So.2d 44
• Parties: DAMPIER et al. v. POLK et al.
• Court: Mississippi Supreme Court

Page 44

58 So.2d 44

214 Miss. 65

DAMPIER et al. v. POLK et al.

No. 38230.

Supreme Court of Mississippi.

April 21, 1952.

Dent & Dent, Collins, Joe Dale, Prentiss, for appellants.

Emmette P. Allen, Brookhaven, C. W. & R. M. Sullivan, Hattiesburg, for appellees.

HOLMES, Justice.

Appellees sued to confirm their asserted title to 180 acres of land and an undivided one-fourth interest in the minerals therein, and to cancel the claims thereto of Plato Dampier, Larna Dampier, Mollie Dampier, I. F. Dale, Lawrence Polk, adult residents of Jefferson Davis County, and H. W. Dippel and M. A. Bletsch, nonresidents, all of whome were named defendants to the original bill. The appellees asserted title to the property under and by virtue of a purchase thereof at a foreclosure sale under a deed of trust executed by Plato Dampier and his wife to the Federal Land Bank. No answers were filed by Lawrence Polk and the nonresident defendants. I. F. Dale answered, asserting a deed of trust on a portion of the property executed to him by Larna Dampier and his wife, Mollie Dampier. The other defendants, Plato Dampier, Larna Dampier and wife, Mollie Dampier, filed their joint answers, denying the validity of the foreclosure of the aforesaid deed of trust, and denying that the complainants acquired title to the property at said foreclosure sale, and pleading statutes of limitation and laches. These last named defendants incorporated in their answer a demurrer to the original bill, which demurrer the defendant, I. F. Dale, adopted in his answer, and made their answer a cross-bill, praying confirmation of title to the interests claimed by them respectively in the property.

Upon the trial of the cause, the chancellor overruled the demurrer and rendered a decree granting the prayer of the original bill and dismissing the cross-bill. From this decree, Plato Dampier, Larna Dampier, Mollie Dampier, and I. F. Dale, prosecute this appeal. There is no appeal by Lawrence Dampier and the non-resident defendants.

The case was tried on an agreed statement of facts, the pertinent facts on this appeal being as follows:

On November 3, 1924, Plato Dampier was the owner and in possession of 199 acres of land in Jefferson Davis County, described as SE 1/4 of NE 1/4 of Section 28, S 1/2 of SE 1/4 of Section 28, NE 1/4 of SE 1/4 of Section 28, SW 1/4 of SW 1/4 less 1 acre in NE corner of Section 27, all in Township 9 N, Range 18W. On that date, Plato Dampier and his wife executed a deed of trust on said land to the Federal Land Bank to secure the payment of the sum of $1,000, payable in thirty-five annual installments of $65 each for the first thirty-four installments, and $62.50 for the last installment, the first annual installment being due on November 1, 1925. The installments due November 1, 1925, 1926, 1927, and 1928, were paid. Under the terms of the deed of trust the grantors therein obligated themselves to pay the indebtedness thereby secured as the same matured, and in addition thereto, to pay all taxes accruing on the land during the life of the deed of trust. The deed of trust contained also the following provision:

'The said bank or any holder of said indebtedness, if a person, acting personally; if a corporation, acting by and through either its president, vice-president, or secretary, or other managing authority, is hereby fully authorized and empowered to appoint another and succeeding trustee in the place of the said above named trustee or his successors, if for any cause the trustee in this instrument, or his successors, shall not be present, able and willing to execute this trust; or if for any reason said holder during through the above described officers, or any one of them, shall so desire, and such appointees shall have full power as trustee herein.'

The deed of trust also contained the further provision: 'In case of public sale hereunder, the holder or holders of this mortgage may purchase at the sale by making the highest cash bid for the property.'

On April 7, 1930, the land sold to the State for the non-payment of taxes for the year 1929, and title was permitted to mature in the State without redemption. On September 7, 1931, the land again sold to the State for the non-payment of taxes for the year 1930, and title was permitted to mature in the State without redemption. On February 27, 1932, the executive committee of the Federal Land Bank determined that three installments due under the deed of trust were delinquent and that taxes for three years on the property were likewise delinquent and the committee directed a reappraisement of the property. As a result of this reappraisement, it was determined by the committee not to redeem the land from the tax sales and on March 3, 1932, the local association, namely, the Prentiss National Farm Loan Association, was advised that the loan was being called and that the capital stock in the amount of $50.00 issued in connection with the loan was being cancelled, and the local association was further advised to inform the bank if there was a redemption of the land before maturity 'in order that the loan may be reinstated and the bank proceed to collect for any other items that may be delinquent on the account'. The total indebtedness under the deed of trust at that time was $1,081.79. No notice of this exchange of communications between the executive committee of the Federal Land Bank and the local association was communicated to the grantors in the deed of trust and no action was taken by the Federal Land Bank or the local association as against said grantors, nor was any demand made upon the grantors for the payment of the full amount of the indebtedness. No affirmative action of any kind was taken by either the Federal Land Bank or the local association to declare the entire indebtedness due and demand of the grantors in the deed of trust payment thereof.

On April 21, 1936, E. A. Burrow was issued a forfeited tax land patent by the State covering 19 acres of the entire 199 acres, said 19 acres being described as the SW 1/4 of the SW 1/4, less 1 acre, of Section 27, Township 9, Range 18. On September 29, 1936, Plato Dampier, who with his wife were the grantors in the aforesaid deed of trust to the Federal Land Bank, obtained a forfeited tax land patent from the State covering the entire 199 acres, thus including the 19 acres to which Burrow had previously obtained a forfeited tax land patent. The validity of the forfeited tax land patent to Burrow is not questioned and the 19 acres covered by that patent are not involved in this litigation. On September 30, 1936, Plato Dampier and his wife, Mollie Dampier, conveyed by warranty deed to Larna Dampier 90 acres of the 180 acres here involved, the same being described as the NE 1/4 of the SE 1/4 and SE 1/4 of NE 1/4 of Section 28, and the West 10 acres in the SW 1/4 of the SW 1/4 of Section 27, all in Township 9, Range 18. Upon the execution of this deed, Larna went into the immediate possession of the land therein described and has since continued to occupy and live on the same. For convenience, this tract conveyed to Larna Dampier will be referred to as Tract I and the remaining 90 acres of the land will be referred to as Tract II. Plato Dampier has at all times continued to occupy and remain in possession of said Tract II. On May 1, 1940, Larna Dampier and wife executed a mineral conveyance to O. C. Luper, purporting to convey an undivided one-half interest in Tract I, and Luper thereafter, on May 8, 1940, conveyed this undivided mineral interest to John D. Gholson. On May 7, 1940, Plato Dampier and wife and R. E. L. Polk executed an oil and gas lease to John D. Gholson on Tract II. On May 10, 1940, Plato Dampier and his wife executed a mineral conveyance to R. E. L. Polk purporting to convey an undivided one-half interest in Tract II. On May 10, 1940, Larna Dampier and wife executed to R. E. L. Polk an oil and gas lease on Tract I, which lease, on May 11, 1940, was assigned by R. E. L. Polk to John D. Gholson. On July 8, 1940, Larna Dampier and wife executed a mineral conveyance purporting to convey to R. E. L. Polk, an undivided one-fourth interest in Tract I. On July 6, 1944, the Federal Land Bank, by an instrument duly executed and recorded, appointed W. H. Livingston as substituted trustee in the aforesaid deed of trust, the instrument being in the following language: 'The Federal Land Bank of New Orleans, being the present owner and holder of the indebtedness secured by a certain deed of trust, executed by Plato Dampier and wife, Maggie Dampier, appearing of record in deed of trust book 50, page 21 of the mortgage records in the office of the chancery clerk of Jefferson Davis County, does hereby constitute and appoint W. H. Livingston as trustee in said deed of trust in the place and stead of the present trustee therein.'

On July 20, 1944, the Federal Land Bank, in consideration of the sum of $1500, transferred and assigned to R. E. L. Polk the aforesaid deed of trust and note executed to it by Plato Dampier and his wife. On August 25, 1944, R. E. L. Polk undertook to appoint C. W. Sullivan as trustee in said deed of trust by an instrument duly executed and recorded and reading as follows: 'I, R. E. L. Polk, being the present owner and holder of the indebtedness secured by a certain deed of trust executed by Plato Dampier and his wife Maggie Dampier, appearing of record in deed of trust book 50 at page 21 of the records of mortgages and deeds of trust on lands in the office of the chancery clerk of Jefferson Davis County, do hereby constitute and appoint C. W. Sullivan as trustee in said deed of trust in place and stead of the trustee therein named, and in the place and stead of any substituted trustee who may have been heretofore named by said Federal Land Bank of New Orleans, Louisiana, the former owner of said indebtedness.'

On October 25, 1946, W. H. Livingston as substituted trustee appointed by the...