Dent v. Calhoun, 48482
| Decision Date | 10 February 1976 |
| Docket Number | No. 48482,48482 |
| Citation | 326 So.2d 320 |
| Parties | W. W. DENT v. R. L. CALHOUN and R. L. Windham. |
| Court | Mississippi Supreme Court |
Kenneth Crawford, Collins, for appellant.
R. L. Calhoun, Hattiesburg, for appellees.
Before GILLESPIE, WALKER and BROOM, JJ.
Again before us is the question of whether or not the defendant in a suit brought by a landowner to cancel a defendant's mineral deed on grounds of fraud may be barred by the ten year statutes of limitation in a situation where the mineral deed has been of record more than ten years prior to commencement of the suit. This appeal is from the Chancery Court of Covington County which held that the suit is barred by the ten year statute under Mississippi Code Annotated sections 15-1-7 and 15-1-9 (1972). We affirm.
The following facts are gleaned from the record. Estella Zinnerman, on May 26, 1955, conveyed the entire mineral interest in the land in question to appellees, Windham and Calhoun. On May 27, 1955, the mineral deed was filed for record in the office of the Chancery Clerk of Covington County, Mississippi, but was not actually recorded until June 14, 1955. By forfeited tax land patent the State of Mississippi, on June 9, 1955, conveyed the land and minerals to Estella Zinnerman, who had several days earlier conveyed the minerals to the appellees. She filed her patent for record on June 13, 1955, and it was recorded the following day, on which date her prior conveyance to the appellees was recorded. On June 11, 1955, Zinnerman conveyed the land to appellant, Dent, who was complainant below, which conveyance by warranty deed was filed for record June 13, 1955, and recorded the following day. The suit presently before us was filed by Dent as complainant on August 31, 1973, against appellees, Windham and Calhoun, as a cloud suit to cancel the deed from Zinnerman to the appellees.
We hold that the chancellor correctly found that within a few days after the controversial deed was executed by Zinnerman to appellees, the appellant, Dent, learned of the deed, but (after having actual knowledge of its being on record) he waited until more than ten years elapsed before filing the suit. The chancellor correctly found that the suit was barred by the statutes of limitation referred to above and dismissed the suit.
This case is controlled by Neal v. Teat, 240 Miss. 35, 126 So.2d 124 (1961). As pointed out in Neal, one who acquires title to the severed mineral fee estate takes constructive possession of the mineral estate conveyed 'although the grantor retains title and actual possession of the surface.'...
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...84, 99, 101 So.2d 507, 514 (1958). Actual notice to the plaintiffs (of the deeds) will start the statute running also. Dent v. Calhoun, 326 So.2d 320, 321 (Miss.1976). The statute will run when reasonable prudence would reveal the existence of a cause of action. King v. Childress, 232 Miss.......
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