Federal Land Bank of New Orleans v. McCraney

• Decision Date: 22 October 1934
• Docket Number: 31382
• Citation: 157 So. 248,171 Miss. 191
• Court: Mississippi Supreme Court
• Parties: FEDERAL LAND BANK OF NEW ORLEANS et al. v. MCCRANEY et al

157 So. 248

171 Miss. 191

FEDERAL LAND BANK OF NEW ORLEANS et al. v. MCCRANEY et al

No. 31382

Supreme Court of Mississippi

October 22, 1934

Division B

1 MORTGAGES.

Wife's purchase of land mortgaged by her deceased husband and herself from purchaser at foreclosure sale held after husband's death transferred title to her, and hence subsequent incum-brancer of land without notice that children of original mortgagors had equitable interest in land as heirs took free of such interest.

2 MORTGAGES.

Where substitution of trustee under trust mortgage was pasted or written on margin of record of mortgage before first notice of foreclosure sale was posted or published, foreclosure by substituted trustee was valid (Code 1930, section 2168).

HON. A B. AMIS, SR., Chancellor.

APPEAL from the chancery court of Jasper county, First District HON. A. B. AMIS, SR., Chancellor.

Suit by Shelton McCraney and others against the Federal Land Bank of New Orleans and others. Decree for plaintiffs, and defendants appeal. Reversed and remanded.

Reversed and remanded.

O. M. Oates, of Bay Springs, and J. Madison Travis, of Meridian, for appellants.

After a cotenancy is actually dissolved there is nothing in the law which forbids a former tenant in common from acquiring the entire property. He then has the same rights as any other person.

7 R. C. L. 861, par. 54; Coleman v. Coleman (Ky.), 3 Dana. 398, 28 Am. Dec. 86; Watkins v. Eaton, 30 Me. 529, 50 Am. Dec. 637; McLawhorn v. Harris, 156 N.C. 107, 72 S.E. 211, 37 L. R. A. 831; Shelby v. Rhodes, 105 Miss. 255, 62 So. 232.

The Federal Land Bank was under no duty to make any investigation further than the records of the title to said land reveal, and, when it took its said mortgage, it was an innocent purchaser for value without any notice of infirmity.

Barksdale v. Learnard et al., 112 Miss. 86, 73 So. 736.

Fraud must be directly and specifically charged and proven.

Coker v. Lewis, 135 Miss. 118, 99 So. 561.

Complainants are estopped to set up their claim by acquiescence and the ten year statute of limitation.

Peeples v. Boykin et al., 96 So. 177; Farnsworth v. O'Neal, 130 So. 101.

Moreover, these complainants did not, and have not, offered in their pleadings a contribution of their proportionate share of the indebtedness existing against the property at the time of McCraney's death.

Fiske v. Quint, 174 N.E. 196, 6 Current Dig., Am. Dig. System; Gardiner v. Hinton, 86 Miss. 604, 38 So. 779; Secs. 2285, 2286, 2287, Miss. Code of 1930; Gilchrist v. Ezell, 141 Miss. 124, 106 So. 269.

Holt Montgomery, of Laurel, for appellees.

The first finding of the court that the substituted trustee's sale was void is supported by the case of White v. Stennis et al., 118 So. 902.

The second finding of the court that Mrs. Mamie D. McCraney, by redeeming the property from Abney & Travis, was paying her personal debt, is supported by the case of Gilchrist-Fordney & Company v. Ezelle, 106 So. 269.

There never had been any adverse possession of the land by Mamie D. McCraney or K. F. Huddleston as against the appellees here.

Watson et al. v. Vinson et al., 67 So. 61, 108 Miss. 600.

Argued orally by J. M. Travis, for appellant.

OPINION

Anderson, J.

Appellees, the seven children of Travis McCraney and his wife, Mrs. Mamie D. McCraney, filed their bill in the chancery court of Jasper county against the appellants, the Federal Land Bank of New Orleans, Barrett Jones, trustee, and K. F. Huddleston, to establish title to, and recover possession of seven sixteenths undivided interests in one hundred forty acres of land in that county, which they claim by inheritance from their father. Appellant, the Federal Land Bank, answered the bill denying its material allegations, and embodied in its answer a demurrer raising the question of its legal sufficiency. The demurrer was overruled, and the cause tried on bill, answer, and proofs, resulting in a final decree in favor of appellees. From that decree appellants prosecute this appeal.

In 1904 Travis McCraney and his wife, Mrs. Mamie McCraney purchased the land involved from W. E. Jones, and received a conveyance from him to both of them. They continued to own the land until the death of Travis McCraney, which occurred in 1911 or the early part of 1912. On the 15th of October, 1910, they executed a deed of trust on the land to W. R. Morgan, trustee, to secure a joint indebtedness they owed Abney & Travis, a mercantile firm. Default was made in the payment of this indebtedness. After such default, Travis McCraney died intestate. On July 1, 1912, this deed of trust was foreclosed by a substituted trustee and purchased by S.W. Abney, a member of the firm of Abney & Travis. The purchase price paid by him was five hundred twenty dollars. The trustee made the proper conveyance to S.W. Abney, and on the next day thereafter S.W. Abney, in consideration of five hundred twenty dollars, cash paid, conveyed the land to Mrs. Mamie D. McCraney.

Appellees base their case on two grounds: First, that by their mother's purchase from Abney she did not get absolute title to the one-half undivided interest in the land owned by her husband; that although she got the legal title it was cumbered with a trust in their favor as to seven sixteenths interests, because at the time she purchased she was a cotenant with them in the husband's and father's undivided one-half interest, therefore she occupied a relation of trust toward them, and under the law seven sixteenths interests in the land inured to their benefit as cotenants. Second, that the foreclosure sale was void, and therefore Abney acquired no title at such sale to Travis McCraney's interest in the land, and for that reason he could not and did not convey such interest to appellees' mother; that it was void because the substitution of the trustee who conducted the foreclosure sale was void. We will consider those questions in the order stated.

First. Appellant Federal Land Bank contends that it was a bona fide incumbrancer of the land without notice that appellees had any rights therein; that whatever rights appellees had, if any, were not revealed in the chain of title on record. While appellees contend that there was sufficient on the record to put the bank on notice and inquiry which, if followed up, would have led to the knowledge that. Mrs. McCraney did not own the absolute title to her husband's one-half interest in the land but held seven-sixteenths of it in trust for appellees. The record of the title showed that Mrs. McCraney was the wife of Travis McCraney, and therefore after his death his one-half interest in the land descended to her and her seven children as cotenants. Those are the principal facts appellees rely on as suggesting inquiry by appellant.

Barksdale v. Learnard, 112 Miss. 861, 73 So. 736, 737, is controlling in favor of appellants. In that case Mrs Barksdale owned the land involved. She and her husband, H. C. Barksdale, gave a deed of trust on the land to Hearn & Company to secure their joint indebtedness of three thousand three hundred thirty-six dollars and fifty cents and advancements thereafter to be made by Hearn & Company. Mrs. Barksdale died leaving as her sole heirs her husband and her son four years old. After her death her husband executed another deed of trust to Hearn & Company on "all the interest of the party of the first part" in the land described in the former deed of trust. Later the deed of trust executed by Barksdale and his wife to Hearn & Company was foreclosed, and the land bought in by Barksdale for the sum of four thousand nine hundred fifty dollars. The deed executed by the trustee to him acknowledged payment of that sum, but the evidence showed that no money was in fact paid by Barksdale, that the amount of his bid was credited by Hearn & Company on his and his wife's notes. Barksdale then executed a new note payable to Hearn & Company for the sum of five thousand five hundred dollars, and gave a deed of trust on the land involved to...