Frye v. Rose

• Decision Date: 24 November 1919
• Docket Number: 20829
• Court: Mississippi Supreme Court
• Parties: FRYE v. ROSE ET AL

83 So. 179

120 Miss. 778

FRYE v. ROSE ET AL

No. 20829

Supreme Court of Mississippi

November 24, 1919

1. VENDOR AND PURCHASER. Purchaser charged with notice of rights of tenant in possession.

The actual possession of land is notice to all the world of whatever rights the occupant really has in the premises and the vendor cannot convey to any other person without such person being affected with notice.

2. LANDLORD AND TENANT. One who leases from the owner before sale is not a sublessee of such owner.

Where a tenant leases land from the owner for one year and before the expiration of the lease another party purchases the land and after such purchase verbally leases the land for the succeeding year to such tenant and afterwards sells the land and enters into a lease himself with his vendees at an increased rental, in such case the original tenant is not a sublessee of his last landlord and is not liable for the increased rental contracted for by his last landlord.

HON. W A. ALCORN, Judge.

APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN Judge.

Suit by Wilbur E. Rose and another against G. G. Frye. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Maynard & FitzGerald, for appellant.

The questions presented for the decision of the lower court are few in number and can be concisely stated as follows: First could J. H. Herrin legally make a lease to the lands in controversy in September, 1916, to take effect in January, 1917 for the year 1917 without putting the same in writing?

This proposition is too plain for argument and is directly decided by the supreme court of Mississippi in the following cases: Gresham v. Lutrick, 76 Miss. 444; McCroy v. Tony, 66 Miss. 233.

Second: Being in possession of the property under an unexpired lease and also the owner of a lease to commence at the expiration of the unexpired lease to run for one year, did not the possession of the appellant eve the purchasers, W. E. Rose, and others who did not purchase until December 14, 1916, notice of any equities or rights claimed by the tenant who is the appellant here?

This proposition was first passed on by the supreme court of Mississippi in the case of Dixon v. Lacoste, l. S. & M. 107, in which the court said: "Possession by the vendee is evidence to creditors and purchasers of the conveyance; or at least, is so strongly circumstanced that it is now uniformly regarded as such evidence of notice."

Possession is a fact to put creditors and purchasers on inquiry as to the nature and extent of the estate of the vendee and has the effect of charging with knowledge of his actual estate and title." Bell v. Flaherty, 45 Miss. 694.

"The possession of a person occupying land is notice of, and puts every other person dealing with reference to such land on inquiry as to the extent of his claim." Bolton v. Roebuc, 27 So. 630. "As K. was in possession of the property under this contract, it is notice to the world of his rights and equities, and interest of the bank acquired in the land through Henderson is subordinate to the interest which Kirby had in the same property."

This is the law as declared by every decision rendered by the court where the question was involved. Taylor v. Lowenstein, 50 Miss. 278; Strickland v. Kirk, 51 Miss. 795; I. C. R. R. Co. v. Sanders, 93 Miss. 107; Boldon v. Roebuck, 77 Miss. 710; Allen, etc. v. Milstead, 92 Miss. 837; Kirby v. Bank, 59 So. 10. Whatever is enough to excite attention, or put a party on inquiry, is notice to everything to which such attention or inquiry might reasonably lead." Parker v. Foy, 43 Miss. 260.

Had Messrs, Carr & Ritchie, as representative of the appellees here, inquired of the appellant before they purchased the lands from J. H. Herrin, they could easily have ascertained from him that he had already rented the land for one year from Mr. Herrin and for the price of eight dollars per acre; and no doubt, he would have told them frankly that he intended to hold under this lease. Instead of doing this, without having said one word to the appellant, they allowed him to work the property for the entire year 1917, and when they called on him, for the rent, called on him under a note from J. H. Herrin.

No attempt was made to introduce Mr. Herrin as a witness on behalf of the appellees to deny that he had rented the place nor is any attempt made to show that the appellant in any way attempted to deceive the appellees. No effort has been made to collect the money from J. H. Herrin nor is it shown that he is insolvent. It is simply an effort on the part of the appellees to hold the appellant on a note given them by J. H. Herrin of which he was neither endorser nor had any knowledge that the note had been given,

"The general rule is well settled in England that a purchaser or encumberancer of an estate who knows or is properly informed that it is in the possession of a person other than the vendor or mortgagor with whom he is dealing is thereby charged with a constructive notice of all the interests, rights and equities which such possessor may have in the land. He is put upon an inquiry concerning the grounds and reasons of the stranger's occupation, and is presumed to have knowledge of all that he might have learned by means of any inquiry duly and reasonably prosecuted. If he neglects to make any inquiry, or to make it with due diligence, the presumption and notice, of course, remain absolute. The same general rule, based upon the same motives and reasons, has been established in the United States by a very great number of decisions and judicial dicta." 2 Pomeroy's Equity Jurisprudence (3 Ed.), sec. 614, p. 1018. It is the settled rule in England that possession by a lessee is constructive notice to a purchaser not only of the tenants rights and interests directly growing out of or connected with the lease itself, but also of all rights and interests which he may have acquired by other and collateral agreements as, for example, from a contract to convey the land, or to renew the lease, and the like. This rule has also been adopted by American courts. It applies to a lessee, a sublessee, and a tenant from year to year." Sec. 625, 1047, 2 Pomeroy's Equity Jurisprudence, (3 Ed.).

It has been settled by numerous cases in this state commencing with Dixon v. Lacoste, 1 Sm. & M. 70, that the open possession and occupancy of land by the vendee is implied notice of his right. Stovall v. Judah, 74, Miss. 756, 67 Miss. 526.

The possession of land by a tenant or lessee is not only notice of all his rights and interests connected with or growing out of the tenancy itself or the lease, but is also notice of all interests acquired by collateral or subsequent agreements." Cooks v. Jenkins, 109 N.W. 82, 104 Am. St. Rep. 326; and see note to this case 104 Am. St. Rep. 348.

But possession of a tenant after the expiration of a term is not only notice of all his rights and equities growing out of the original lease, but also of such additional or different rights and equities as he acquires under a subsequent agreement." Allen v. Gates, 73 Vt. 222, 50 At. 1092; Cunningham v. Pattee, 91 Mass. 248.

Even if the appellees were entitled to recover rent for the premises from the appellant in an amount more than he agreed to pay J. H. Herrin, they could not recover from the appellant more than a reasonable rent on the lands for the year 1917. It will be seen by reference to the record at page 46 that the appellant offered to introduce Mr. E. B. Johnson, Mr. Arthur Dugger and Mr. D. A. Mueller, to prove that eight dollars per acre was a reasonable rental for the year 1917 for the land in controversy. This evidence was rejected by the court and the appellees were allowed to recover in the exact amount of the notice given by J. H. Herrin. There was no privity of contract between the appellant and J. H. Herrin; and because Herrin gave the note for sixteen hundred dollars did not make it a reasonable rent.

On the whole, it is urged by the appellant that this cause should be reversed and judgment entered here for the amount of rent tendered to the appellees, being seven hundred and eighty-seven dollars and twenty cents which it was agreed was tendered in this cause and is still tendered and offered to be paid as shown by page 16 of the record, and judgment here be entered also for the costs as against the appellees.

Oscar Johnston, for appellee.

Herrin purchased a tract of land on September 18, 1916, and was to be given possession on January 1, 1917. At the time of the purchase the premises were in the possession of Frye, lessee from Herrin's vendor under a lease which was to expire on January 1, 1917, after purchasing, Herrin, by verbal contract, leased the premises to Frye for a period of one year commencing January, 1917, ending with December 31, 1917 for a rental of seven hundred and eighty-four dollars, or eight dollars per acre, Frye to come into possession under this contract January 1, 1917, or at the time that Herrin was entitled to possession under the terms of the conveyance from his vendor. In December, 1916, Herrin, ignoring the alleged verbal contract between himself and Frye and concealing same, sold the premises to Rose et als., and leased or rented the premises from Rose, evidencing the rental by written contract and stipulating for a rental of sixteen hundred dollars for which amount Herrin gave Rose his note. Under the deed from Herrin, Rose was to be given possession January 1, 1917, upon which said date Herrin was also entitled to take possession as the lessee of Rose et als. The vendee of Herrin had no knowledge of the alleged trade between Herrin and Frye. Frye was farming the premises and...