H. Hiller & Co. v. Jones

• Decision Date: 03 June 1889
• Citation: 66 Miss. 636,6 So. 465
• Parties: H. HILLER & Co. v. SARAH A. JONES
• Court: Mississippi Supreme Court

6 So. 465

66 Miss. 636

H. HILLER & Co. v. SARAH A. JONES

Supreme Court of Mississippi

June 3, 1889

April 1889

FROM the circuit court of Franklin county, HON. RALPH NORTH Judge.

This was an ejectment suit by appellee against appellants. The evidence in reference to the titles is sufficiently stated in the opinion. The court in effect instructed the jury on behalf of the plaintiff that she could recover the premises by virtue of her prior unrecorded deed, as against the defendants who claim under subsequent recorded deeds from the same vendor, because the defendants failed to show that they had no notice of plaintiff's deed.

The defendants introduced no evidence of their want of notice of the plaintiff's unrecorded deed, but relied on the deeds constituting their chain of title, which recited the payment of the considerations expressed in them, as evidence that the vendees therein as well as themselves were purchasers for value, and contended that the burden rested upon the plaintiff to prove notice to the defendants of the unrecorded deed.

The instructions refused to defendants the benefit of such recitals in the deeds as evidence of the payment of the consideration expressed.

The plaintiff had judgment for the recovery of the land and rents, and the defendants appealed.

Judgment reversed and cause remanded.

Nugent & McWillie, for appellants.

The burden of showing want of notice was not on the defendants. This follows from the purpose and language of our registration laws. A purchaser must spread his muniments of title on the record. "If he fails to do this, he takes the risk of a subsequent sale for value of the property, by his vendor, or the subjection of it to his debts; nor can he prevail against such a purchaser or creditor unless he can charge the purchaser or creditor with notice of his prior right." Humphreys v. Merrill, 52 Miss. 93.

The underlying reason of the doctrine which allows the holder of an unregistered conveyance to prove actual notice in a subsequent purchaser holding under a registered conveyance, is said to be that it is a fraud for a purchaser who knows of a prior sale to attempt to defeat such purchaser's rights by getting in the estate. Loughridge v. Bowland, 52 Miss. 553; Dixon & Sharkey v. Doe, 23 Miss. 84; Rogers v. Wiley, 56 Am. Dee. 491; McConnell v. Reed, 38 Ib. 128.

However the law may be in other states of case, it is quite satisfactorily settled with reference to registration laws that the recital of payment is evidence of such fact as between the defendant and a prior grantee. Wood v. Chapin, 13 N.Y. 509. A deed always imports a consideration. The one stated, while not operating as an estoppel, will be taken prima facie to be the true one.

W. P. Cassedy, on the same side.

H. Cassedy, for appellee.

1. Whether the grantees in the deeds paid anything for the land or had notice of the prior deed to appellee's ancestor, is not shown by any evidence, unless the recitals in the deeds show them to be purchasers for value; but, if so, the other essential, good faith, is wholly absent.

The burden was on the defendants to show that they were purchasers for value without notice, before the ordinary effect of the prior deed could be avoided. Kyle v. Calmes, 1 How. 121; Merrill v. Melchior, 30 Miss. 516; Kerr v. Freeman, 33 Ib. 292; 1 Greenleaf Ev., §§ 78, 81; Porter v. Still, 63 Miss. 357.

The recitals in the deeds of the payments of the consideration are prima facie evidence of payment against the parties to the deeds, but are evidence of nothing save the execution of the deeds as against appellee, who is a stranger to all of these consequences. The recital of payment is but an admission of the fact by the respective grantors, and is hearsay as to the appellee and inadmissible for the purpose of showing the payment of a valuable consideration.

There is a conflict in the American authorities as to the effect of the recital of payment, but the weight of authority as to the recital of payment, as to strangers to the deed, is that it is not evidence of payment. 2 Devlin on Deeds, §§ 820, 821; Ib., p. 89, note 1; Kimball v. Fenner, 12 N.H. 248; De Vendal v. Malone's Ex'rs, 25 Ala. 272.

2. Arnold entered under the tenant of appellee, the holder of the fee, and this charged him with notice of her title; and both Anderson and Hiller were in privity with him and are chargeable with knowledge of the same facts that possession of the land by the tenant charged him with, and this dissipates the idea of Hiller being a purchaser for value without notice.

OPINION

CAMPBELL, J.

The plaintiff sought to recover the land, by virtue of an unrecorded deed from Henry Melton to her ancestor, made in 1860, and followed by possession by him, under the deed. The defendants claimed the land under a chain of title from Henry Melton, consisting of a deed from him to Arnold, in 1869, and from Arnold to Anderson, in 1871, and from Anderson to defendants. These deeds were severally recorded, as required by law, and each contains a statement of a pecuniary consideration, on which it is made. There was evidence that the ancestor of the plaintiff died in 1862, and that his widow and the plaintiff, then an infant of tender years, resided on the land, and that it was next occupied by Arnold, who, in 1869, received a conveyance of it from Henry Melton.

There is no evidence that Arnold or Anderson or the defendants had any notice of the unrecorded deed under which the plaintiff claims, nor is there any evidence, other than the deeds, of the payment of any valuable consideration by any of the grantees.

Thus the question is presented: Did it devolve on the defendants to show by evidence, other than the deeds under which they held, payment of a valuable consideration by them or some one in the chain in order to clothe themselves with the character of purchasers for value, or could they rely on their chain of title, apparently perfect, until doubt about it was created by some evidence? In other words, may purchasers rely on the muniments of title, spread upon the records designated by law as the repository of the history of titles to land as being truthful memorials of the consideration expressed in them, until something is shown inconsistent with what they state?

It must be admitted that the multitude of opinions answer in the negative, and some respectable courts and authors so declare but in this, as in many...