Dead River Fishing & Hunting Club v. Stovall

• Decision Date: 04 April 1927
• Docket Number: 25872
• Citation: 113 So. 336,147 Miss. 385
• Parties: DEAD RIVER FISHING & HUNTING CLUB v. STOVALL et al. [*]
• Court: Mississippi Supreme Court

113 So. 336

147 Miss. 385

DEAD RIVER FISHING & HUNTING CLUB v. STOVALL et al. ^[*]

No. 25872

Supreme Court of Mississippi

April 4, 1927

Division A

1. VENDOR AND PURCHASER. Purchaser is charged with notice of what would be disclosed by investigation, when put on inquiry by recital in prior recorded deed of grantor.

A purchaser must examine previous recorded deeds of his grantor in any way affecting his title, and, if in any of them there is a recital sufficient to put a reasonably prudent man on inquiry as to sufficiency of title, he is charged with notice of all those facts which could and would be disclosed by a diligent and careful investigation.

2. VENDOR AND PURCHASER. Recorded deed of water bordering only on northwest quarter of quarter section, misdescribing it as on northeast quarter, held constructive notice of grantee's rights to subsequent purchaser of northwest quarter.

Where owner of a quarter section, the northwest quarter of which alone bordered on a lake (the lower part of Dead river), by deed of the water reciting that it bordered on grantor's land in the county and misdescribing it as the water bordering on the east half of said quarter section, but correctly reciting that it was known as the lower part of Dead river, such recorded deed was constructive notice of the grantee's rights in such lake to a subsequent purchaser of the northwest quarter of such quarter section.

3. REFORMATION OF INSTRUMENTS. Reformation of recorded deed containing misdescription will be granted against second purchaser from same grantor put on notice by recital in the deed.

Grantee of water, misdescribed in deed as bordering on certain part of quarter section, may have it reformed as against subsequent purchaser from the same grantor of the part of the quarter section on which it did border, where the first deed was recorded, and by reason of recital therein was constructive notice to the second purchaser of the rights of the grantee therein.

4. ADVERSE POSSESSION. Easements. Ten-years' possession is necessary to acquire title by adverse possession either to an easement or to land.

Title by adverse possession, whether to land or an easement, can be acquired only by ten years' possession.

5. ADVERSE POSSESSION. Occupancy by adjoining landowner of lake previously conveyed to fishing club, held not such as to impart knowledge to owner of adverse claim.

Occupancy and use by the grantee of land of part of lake bordering thereon, and previously conveyed to a fishing club, held not so open, notorious, and inconsistent with rights of owner as to impart to him knowledge of an adverse claim, and work disseisin and ouster necessary for title by adverse possession.

Suggestion of Error Overruled April 18, 1927.

APPEAL from chancery court of Monroe county.

HON ALLEN COX, Chancellor.

Suit by the Dead River Fishing & Hunting Club against Henry Stovall and others. From a decree dismissing complainant's bill, it appeals. Reversed and judgment rendered.

Decree reversed.

Leftwich & Tubb, for appellant.

I. The court erred in dismissing the complainant's bill. There can certainly be no contention, as there was at the trial, no dispute or conflict in the testimony, as to the right of the complainant to reform its deed wherein Sarah Buckingham Smith on August 27, 1908, conveyed to it the exclusive right and privilege to fish in the waters of Lower Dead river.

Sarah owned the land adjacent to this part of the river but the river, it so happened, was not located in the east half of the northeast quarter of the section. Most assuredly as between the complainant and Sarah Buckingham Smith, the grantor, or as between any of her vendees or those claiming under her with notice either actual or constructive, the complainant had the right to reform its deed if in fact the deed needed reformation.

The only error of any consequence was wherein the schivener described the location of the lake or river adjacent to the east half of the northeast quarter when he should have said the west half of the northeast quarter and part of the northwest quarter, describing by metes and bounds the actual land owned by the grantor. There was here manifest from this deed and from this proof a mutual mistake which entitled the complainant to reformation. See Brim v. McGee, 119 Miss. 52; Miles v. Miles, 84 Miss. 624.

If on the other hand this deed did not need reformation and it probably was not necessary to reform it by decree of the court, then the complainant below was entitled to a decree quieting and confirming its title and cancelling the claims of the defendants to the fishing privileges in the water of Lower Dead river and to an injunction perpetually enjoining them from trespassing in and upon said water, as prayed in the bill.

II. Was Payne a purchaser for value without notice? Mr. Payne is a purchaser under a deed of trust given by Sarah Buckingham Smith to E. F. Poe, trustee, to secure to Joseph E. Houston an indebtedness of two hundred twenty-nine dollars and twenty cents, which deed of trust is dated April 17, 1911, nearly three years after the conveyance by this old negro woman to the club.

Joseph E. Houston, the beneficiary in this deed of trust, was the same Joseph E. Houston who drew the deed from Sarah Buckingham Smith, the old negro woman, to the club, in which deed she conveyed these fishing waters and privileges. Mr. Houston manifestly and evidently had notice and knowledge at the time he took this deed of trust to secure his debt of two hundred twenty-nine dollars and twenty cents that Sarah had already conveyed the lake, "Lower Dead river," the fishing privileges therein, to the club, complainant below, for a period of ninety-nine years from the date of said deed. Mr. Payne could acquire no higher rights than Mr. Houston himself had. 34 Cyc., page 955, paragraph E; Andrews v. Gillespie, 47 N.Y. 487; Adlard v. Stockstill, 5 Ohio S. & C. Pl. Dec. 493, 5 Ohio N. P. 487. Under such circumstances any defense could be set up against Payne which could be set up against Houston prior to his assignment.

III. The records gave notice to Payne. Leaving out of consideration all knowledge which Mr. Houston himself had by reason of the fact that he drew the deed to the Fishing Club and assuming that Mr. Payne himself was a total stranger to the transaction when he took up the mortgage held by Houston and foreclosed it and bought at the foreclosure sale, what would an ordinarily prudent business man under such circumstances do to ascertain the character of the title? It is a well-known and thoroughly recognized principle that a purchaser is charged with notice of everything disclosed by the public records and if the records disclose anything suggesting even a prior conveyance, the purchaser is charged with such knowledge as he might have acquired had he made investigation.

In support of this contention we offer the following authorities: 23 R. C. L., page 341, "Reformation of Instruments;" Deason v. Taylor, 53 Miss. 697; Nolen v. Henry, 190 Ala. 540, 67 So. 500; Ann. Cas. 1917B 792; Parker v. Foy, 43 Miss. 260; Alliance Trust Co. v. Nettleton Hdw. Co., 74 Miss. 584.

We have already heretofore in this brief pointed out the descriptive terms used in the deed under which appellant claims title to the privilege of fishing in the waters bordering on the Sarah Buckingham Smith lands. What would a reasonably prudent man conclude if he examined the records and found therein the deed which Sarah Buckingham Smith made to appellant? There is most assuredly a sufficient description to indicate to any subsequent purchaser who examines the record that she had conveyed to the Fishing Club the exclusive right and privilege of fishing in the waters bordering her land, which waters were known as "Lower Dead river."

A purchaser dealing with these lands is charged with every word and recital contained in the instrument under which he takes title and also with every word and recital in all instruments transmitting the land out of the government and in the chain of title down to that date. A most interesting case designating the law on this subject is that of Deason v. Taylor, 53 Miss. 697.

It is the duty of a purchaser of land to look at his land when he buys it. It is his duty to inspect and to inquire as to these facts in pais. This is not only the law of Mississippi, but it is practically the universal law where land sales pass by registered title and possession. The examiner of titles is required to inquire about the possession of the property and matters lying outside the record to the attention of which such inquiry leads him. He must make inquiries in pais. Warvelle on Abstracts, pages 67-69 and 637-639; Pomeroy's Eq. Jurisprudence (Student's Ed.), paragraph 600.

The court will observe that the rights of the complainant in some particulars have the nature of an easement. In the inspection of the property the purchaser dealing with the land must take visible notice of such easements and servitudes as an inspection of the estate would disclose and bring to his attention. Warvelle on Abstracts, page 640; Knapp v. Bailey, 1 A. S. R. 295; 3 Washburn on Real Property (3 Ed.), 335; Nolen v. Henry, 190 Ala. 540, 67 So. 500, Ann. Cas. 1917B 792; Crago v. Vitter, 120 Miss. 103; Gover v. Falls, 120 Miss. 201.

IV. The decree of the court is manifestly wrong and should be reversed.

Paine & Paine, for appellee.

1. The case will have to be affirmed for the reason that the chancellor decided the conflicting facts as to adverse possession by G. C. Payne in favor of him.

II. The record and the legal title to the land and water bordering thereon in Lower Dead river is in G. C. Payne. He has a paper from Sarah B. Smith, the common source of the title. The...