Fairley v. Howell

• Citation: 131 So. 109,159 Miss. 668
• Decision Date: 01 December 1930
• Docket Number: 28819
• Court: United States State Supreme Court of Mississippi
• Parties: FAIRLEY et al. v. HOWELL et al

131 So. 109

159 Miss. 668

FAIRLEY et al. v. HOWELL et al

No. 28819

Supreme Court of Mississippi

December 1, 1930

Division B

1. VENDOR AND PURCHASER.

Deed not carrying legal acknowledgment, although afterwards recorded, did not constitute constructive notice.

2 HOMESTEAD.

Wife's request to husband to transfer homestead and recognition of transfer, without her signature, as valid, was material only upon issue of purchaser's adverse possession and could not give deed validity.

3. ADVERSE POSSESSION.

To prove title by adverse possession in disseisor entering without right, evidence should be clear and fairly convincing.

4. ADVERSE POSSESSION.

Title by adverse possession in disseisor entering without right or essential element cannot be established by loose, uncertain or conjectural evidence.

5. ADVERSE POSSESSION. Where entry is under color of title, in good

faith for adequate price, proof to establish adverse possession need only sufficiently indicate possession in reliance upon validity of transaction.

Color of title may arise where title failed to vest only by reason of oversight of some formal requirement in execution of conveyance. Foregoing rule would be applicable where vendor and those holding rights through or under him lived and continued to live in immediate neighborhood of premises and well knew at all times of claim and of bona fides of transferee.

6. ADVERSE POSSESSION.

Evidence showing defendant entered under color of title In good faith and was in possession for statutory period held to establish adverse possession.

7. VENDOR AND PURCHASER.

Innocent purchaser for value without notice held not protected as against one establishing title by adverse possession notwithstanding absence of constructive notice.

HON. T. P. DALE, Chancellor.

APPEAL from chancery court of Forrest county, HON. T. P. DALE, Chancellor.

Suit by J. W. Howell and others against Watson Fairley and others. Decree for plaintiffs, and defendants appeal. Reversed and remanded with directions.

Reversed and remanded.

C. F. Hathorn and Currie & Currie, all of Hattiesburg, for appellants.

The undisputed facts on adverse possession, as shown by the record were and are sufficient to vest and did vest title to the lands in controversy in appellant Fairley and his successors.

Section 2668, Code of 1880 and section 2734 of Code of 1892.

When a person acquires title by adverse possession, he gets a complete title, and there is no requirement that a record be made of it to bind purchasers without notice from the original owner. The recording act does not apply to such title and it devolves on such purchaser from the record owner to ascertain whether there has been adverse possession thereof hostile toward the record title.

Lowi v. David, 98 So. 684.

When title by adverse possession has been acquired to land and is vested in an owner, he may then leave the land and exercise no more acts of ownership over the same. His title will be protected to the same extent as if he were the record owner of the land with his deed duly recorded. He cannot lose the land except in the same way as a record owner, viz., (1) by conveyance, or (2) by adverse possession thereof against him for the statutory time.

Lowi v. David, 98 So. 684; Fant v. Williams, 79 So. 343.

Appellee's alleged possession, amounted at most to a mere scrambling possession, and was not sufficient to confer title.

Mitchell v. Bond, 84 Miss. 72, 36 So. 148; Cohn v. Smith, 94 Miss. 517, 49 So. 611.

A purchaser of land is charged with notice not only of every statement of fact made in the various conveyances constituting his chain or title, but he is also bound to take notice of and to fully explore and investigate all facts to which his attention may be directed by recitals in said conveyance contained. The duty is also imposed on him to examine all deeds and conveyances previously executed and placed of record by his grantor--either immediately or remote if such deeds or conveyances in any way affect his title. And if in any such deed or conveyance there is contained any recital sufficient to put a reasonably prudent man on inquiry as to the sufficiency of the title, then he is charged with notice of all those facts which could and would be disclosed by a diligent and careful investigation.

Dead River Fishing & Hunting Club v. Stovall, 113 So. 336; Fitzgerald v. Libby, 142 Mass. 235, 7 N.E. 917; Ames v. Roberts, 131 P. 994.

F. M. Hunt, of Hattiesburg, for appellee.

A deed, containing a defective acknowledgment although recorded, does not constitute constructive notice.

Elmslie v. Thurman, 40 So. 67-68; Toulmin v. Heidelberg, 32 Miss. 268-274.

A homesteader may claim a homestead partly in and partly out of town.

Fitzgerald v. Rees, 67 Miss. 473, 7 So. 341.

Exemption in municipality is not affected by territorial extent.

88 Miss. 514, 41 So. 66.

The exempt homestead may be crossed by a street.

Acker v. Trueland, 56 Miss. 30.

A homestead may be crossed by a railroad right of way.

Parissott v. Tucker, 65 Miss. 439.

A deed from the husband alone to the homestead property is void without the wife joining therein.

Yazoo Lumber Co. v. Clark, 95 Miss. 244, 48 So. 516.

The contemporaneous assent of the husband and wife is necessary to the validity of a deed or mortgage on the homestead. The subsequent ratification by the wife cannot validate it, even by deed.

Cummings v. Busby, 62 Miss. 195; Bennett v. Rowland, 1 Miss. Dec. 569; Hubbard v. Sage, etc., Co., 81 Miss. 616, 33 So. 413.

A written instrument is not necessary to give color of title, but it may be created by acts in pais. Nevertheless, if there is no writing purporting to convey, there must be some visible acts or signs, or indications which are apparent to all, showing the extent of the boundaries of the land claimed, to amount to color of title.

2 C. J., page 170, 1 R. C. L., pages 708-709.

The holding that color of title may depend on parol is against the almost unanimous holdings of the courts, and should be applied with caution.

Lumber Co. v. Childs, 113 Miss. 246, 174 So. 147.

The appellees have title by record conveyances and they have title as innocent purchasers for value and appellants have not gained title by adverse possession.

OPINION

Griffith, J.

On the 18th day of March, 1890, B. P. McLeod, then the undisputed record owner in fee simple of the land of which the following was a part, made, or rather attempted to make, a deed to appellant Watson Fairley, in the following words and figures:

"In consideration of the sum of forty dollars I convey and transfer to Watson Fairley all my right, title, claim and interest and demand in and to the following described land, to-wit: Commencing at the southeast corner of J. W. Gray's land and running north one hundred seventy-three and one-half feet, from thence east one hundred twenty-five feet and running south one hundred seventy-three and one-half feet, from thence west one hundred twenty-five feet to the point of beginning, being in south-east quarter of southeast quarter, section 4, township 4 north, range 13 west."

The testimony shows without dispute that at the time the...