Henderson v. Cameron

• Decision Date: 27 April 1896
• Citation: 20 So. 2,73 Miss. 843
• Court: Mississippi Supreme Court
• Parties: J. L. HENDERSON v. A. F. CAMERON

20 So. 2

73 Miss. 843

J. L. HENDERSON v. A. F. CAMERON

Supreme Court of Mississippi

April 27, 1896

March 1896

FROM the chancery court of Hancock county HON. W. T. HOUSTON Chancellor.

This was a proceeding in the chancery court of Hancock county by J. L. Henderson against A. F. Cameron and others, to remove a cloud upon his title to section 25, township 8, range 16 west, in said county. The answer of the defendants denied complainant's title, and set up title in themselves. On the hearing, complainant introduced his record title, from the government down to himself, his grantor being Mrs. E. L Saunders. It was shown for defendants that complainant, who was a lawyer, made an abstract of all the lands in Hancock county, beginning his work in 1890; that H. Saunders owned a large amount of land in the county in his own name, and as a partner of D. B. Seal; that said Saunders died in 1879, and in general terms, devised all his lands and property to Mrs E. L. Saunders; that, in 1880, Mrs. Saunders purchased the moiety of D. B. Seal in the lands in controversy, and, in the same year, conveyed the land to Giacomo Monti, by warranty deed which was not recorded until the twenty-third of June, 1893, Monti conveyed the lands to appellee in 1881.

On the fourth of May, 1893, Mrs. Hyatt (formerly Mrs. Saunders) made a deed to complainant which conveyed "all the lands in the State of Mississippi which my former husband, Hubbard Saunders, owned, and which he devised to me in his last will and testament, . . . excepting, however, out of said grant those certain tracts of land which, from time to time, have been conveyed by deed either by Mr. Saunders or myself, and which are of record, and none others." Mrs. Hyatt did not know that she owned any land in Hancock county until Henderson went to her and told her of a small tract that he found she had not conveyed. She testified that Henderson was to hunt up the lands from the records, and agreed to buy all the land she owned in the county, and he agreed to pay her twenty-five dollars for the land he had found she owned, and if he found other land amounting to as much as one hundred and fifty-acres, he was to pay her seventy-five dollars additional, and that he had paid her the seventy-five dollars; that she sold the land to Monti and had not claimed title to it nor paid taxes on it since she sold to him; that Henderson did not tell her that she had title to the land in controversy, and she conveyed, in general terms, all the land she owned in the state.

Defendant, Cameron, testified that while he was in possession of the land, Henderson went to him and told him that he could find no record of any deed from Mrs. Saunders to Monti, when he told Henderson that there was a deed, and he thought it was recorded, and he would hunt it up; that the sheriff of the county wrote to a daughter of Monti's, who sent him the deed, and it was recorded. Counsel then asked Cameron if this conversation was before or after January, 1893. He said he did not know. He was then asked the following question, being the eighth direct interrogatory: "This suit was filed on the thirteenth day of October, 1893. Was it before or after that date? He answered that it was before. Complainant objected to this question as leading, and it was excluded by the court. The ninth direct interrogatory addressed to him was as follows: "How long before--six months, twelve months or eighteen months, as near as you can state, or any other time?" An objection was made to this interrogatory as leading. The witness answered as follows: "It was some time before. I can't recollect exactly. I think it was six months or more." Henderson denied this conversation, and said he had no knowledge of the unrecorded deed from Mrs. Saunders to Monti. From a final decree dismissing complainant's bill he appealed.

Affirmed.

E. J. Bowers, for appellant.

In tracing notice of the existence of the Monti deed, defendants are required to establish the facts relied on, with reasonable certainty, and the facts must be such as to have caused appellant to know with reasonable certainty the particulars of the adverse claim. Vague, indefinite rumors or general statements as to outstanding titles will not do. Wade on Notice, § 258; Jolland v. Stainbridge, 3 Ves. Jr., 478: Lindaur v. Younglove, 47 Minn. 62. The creditor, or subsequent purchaser, must be so bound in conscience by notice that mala fides could be imputed to him if he should take the estate against the prior vendee. Loughridge v. Bowland, 52 Miss. 546. There must be some declaration from an authentic source which it would be negligence to disregard. Maul v. Rider, 59 Penn. St., 172; Loughridge v. Bowland, supra. The information must be credible in its character and source, and sufficiently circumstantial to furnish one with a palpable clue or guide, or means by which the truth may be ascertained. 16 Am. & Eng. Enc. L., p. 797, note 3.

If all the excluded evidence was in the record, it would still fail as proof of notice. A fair analysis of the evidence shows that the conversations with Henderson were after he purchased, and was trying to find out how much land he got by his deed. Cameron's testimony as to dates is unreliable. He knew no dates except those put into his mouth by counsel, and his testimony should go for naught.

The position that Cameron was in possession is untenable. No one was in...