Glass v. Hardison
| Decision Date | 12 December 1927 |
| Docket Number | 26755 |
| Citation | 114 So. 879,148 Miss. 756 |
| Court | Mississippi Supreme Court |
| Parties | GLASS v. HARDISON et ux. [*] |
1. VENDOR AND PURCHLASER. Record showing cancellation of deed of trust by renewal held sufficient notice to purchaser to put him on inquiry.
Record showing cancellation of deed of trust by renewal held sufficient notice to purchaser of property covered thereby to put him on inquiry, which, if followed up would have revealed other equities chargeable against land.
2. VENDOR AND PURCHASER. Purchaser requiring attorney to hold note and check; constituting consideration for land, held not "innocent purchaser for value."
Purchaser of land, requiring note and check representing consideration to be held in escrow by his attorney, held not an "innocent purchaser for value," because, as long as note and check were retained by attorney, and might be returned to purchaser, there was nothing paid on purchase price of land.
Suggestion of Error Overruled Jan. 9, 1928.
APPEAL from chancery court of Attala county.
HON. T P. GUYTON, Chancellor.
Suit by D. H. Glass against D. E. Hardison and wife, wherein defendants filed a cross-bill. From the decree, plaintiff appeals, and defendants cross-appeal. Affirmed on both direct and cross-appeal, and remanded.
Decree on direct appeal and cross-appeal affirmed, and cause remanded.
Jas. T Crawley, for appellant.
A person in dealing with another in respect to real estate may rely on the record title to the property in the absence of actual knowledge of the title or fact or facts sufficient to put him on inquiry in respect thereto. He who acts in reliance on the record has behind him not only the material equities of his position but also the especial equities arising from the protection afforded every one who trusts the record. (23 R. C. L., par. 55, p. 197, and citations thereunder).
The fact that a trust deed is released of record prior to the date on or before which the note secured thereby was payable is not a circumstance to excite inquiry by an intending purchaser, and he acquires title paramount to such released deed of trust though such note remained unpaid, where it appears that the obligor had the money to pay the note before maturity (23 R. C. L., par. 55, p. 198).
The deed of trust executed by G. M. and M. J. and W. B. McGarrah to J. W. Rimmer and Brother, showed that it was due on or before the first day of November, 1919. Therefore, the said note was due at the time it was marked paid and satisfied and this fact did not place Mr. Glass on inquiry.
In a majority of the states the rule is that the burden is on the grantee, mortgagee or other person whose duty it is to have an instrument recorded, as between him and a subsequent bona-fide purchaser, to see that all of the prerequisites of a valid and complete recordation are complied with, if he desires the protection afforded by the recording acts. The record will not impart constructive notice to subsequent mortgagees or purchasers unless it fully complies with the law, and where one of the grantors fails to execute the deed and any loss results, it must fall on the grantee in the original deed and not on the subsequent purchaser. The question naturally arises as to how much reliance may be placed upon the record. This question has been recently settled in Mississippi in Turner v. Bell et al., 109 So. 794.
Under this case we can safely assume and we contend that Mr. Glass in searching the records discovered that W. B. McGarrah held a one-half interest in the same, therefore as he had not conveyed his one-half interest in the property that he had a right to sell it to whomsoever he pleased.
When the court held that D. H. Glass acquired title to this land subject to such outstanding indebtedness as W. B. McGarrah owed J. W. Rimmer and Brother at the time his father and mother sold the place to D. E. and Florence Hardison, we respectfully submit that the court committed grevious error. The court was attempting to impose terms in a contract not contemplated by either party to this deed in question. Mr. Glass had a right to rely upon his warranty deed and he does do so.
We desire to call the attention of the court to the fact that the pleadings in this case do not show that J. W. Rimmer and Brother filed any cross-bill against D. H. Glass. They having filed no cross-bill against him, the prayer which is contained in their answer cannot be enforced. It is a well-settled principal of equity in this state that affirmative relief can be secured only through an original bill or through a cross-bill. The said J. W. Rimmer and Brother have filed neither against appellant, D. H. Glass. Consequently when the court enters an order subjecting the property bought by Glass from McGarrah to any outstanding indebtedness which may have been due by McGarrah to Rimmer at the time of the purported sale to the Hardisons, he is giving relief against Glass for which there is no law. That is to say, the court cannot decree anything in this case against Glass in favor of J. W. Rimmer and Brother because J. W. Rimmer and Brother have not filed a cross-bill against Glass and asked for any remedy.
J. D. Guyton and J. G. Smythe, for appellees.
In Parker v. Foy, 43 Miss. 265, this court says: This case is cited with approval in Perkins et al. v. Swank, 43 Miss. 360; Davis v. Pearson, 44 Miss. 512; Harrington v. Allen & Co., 48 Miss. 495; Buck v. Paine, 50 Miss. 655.
In Deeson v. Taylor, 53 Miss. 701, this court pertinently says: This rule applies with equal force to recitals in the records other than those through which the purchaser claims title if he had actual knowledge and read such other records. Henderson v. Cameron, 73 Miss. 843, 20 So. 2. In Rowan v. Adams, S. & M. Ch. p. 45, this court held that where one about to purchase a tract of land was informed that another had "some sort of claim to it" that this information was sufficient to put the purchaser upon inquiry. See 39 Cyc. 1730, n. 92.
In Levy v. Holberg, 67 Miss. 529, 7 So. 431, this court holds that possession of the tenant is possession of the landlord, and that since possession of the holder of an unrecorded deed is notice of the occupant's title, then for the same reason possession of a tenant under a landlord having an unrecorded deed is likewise notice of the landlord's title. The same rule is announced in Bratton v. Rogers, 62 Miss. 281, where the defense interposed by Rogers that he was a bona-fide purchaser was defeated by the fact that the lands were in actual occupancy of the complainant by his tenant. In 39 Cyc. 1758, the rule is stated that: "In the United States it is now universally held that the possession of a tenant of real estate is constructive notice as to third parties of the title of the landlord." The same authority, 39 Cyc. 1759 (e) says that: "Possession of the entire premises by one of several tenants in common is sufficient to put a purchaser from a cotenant on inquiry as to the interest in the property claimed by the occupant." Much more so would this rule apply when the appellant saw Hardison's tenant in possession and made no inquiry of him, and at the same time knew his own grantor was not in possession and he made no inquiry of him.
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