Horton v. Misso

• Decision Date: 05 May 1930
• Docket Number: 28682
• Citation: 157 Miss. 371,128 So. 103
• Court: Mississippi Supreme Court
• Parties: HORTON v. MISSO

128 So. 103

157 Miss. 371

HORTON v. MISSO

No. 28682

Supreme Court of Mississippi

May 5, 1930

Division B

Suggestion of Error Overruled June 2, 1930.

APPEAL from chancery court of Noxubee county HON. T. P. GUYTON Chancellor.

Action between William E. Horton and Phillip Misso. Judgment for the latter, and the former appeals. Affirmed.

Affirmed.

Dorroh & Strong, of Macon, for appellant.

Where one claiming protection as a bona-fide purchaser has proven his purchase, by payment of value, the burden is upon the other party asserting that the purchase was made with notice of his claim to prove such notice. 27 R. C. L., section 483.

Among the cases cited by appellee there is no instance where one who entered as a tenant and afterward acquired an interest by unrecorded conveyance that holds this new class of occupancy was notice to an innocent purchaser.

A purchaser of land where the record shows a good title is not bound to look beyond to a former occupancy of it under a deed of which he is not shown to have had notice.

Hillar v. Jones, 66 Miss. 636.

E. H. Britton, of Macon, for appellee.

Continued possession of tenant who afterwards purchases part of land is notice to subsequent purchaser of rights of vendee.

Levy v. Holberg, 67 Miss. 526; Frye v. Rose, et al., 120 Miss. 778, 83 So. 179; Clayburne v. Holmes, 51 Miss. 146; 2 Pomeroy's Equity Jurisprudence (3 Ed.), sections 614-616; Stovall v. Judah, 74 Miss. 747; Willis v. Reed, 86 Miss. 446.

Argued orally by Chas. Strong and I. L. Dorroh, for appellant.

OPINION

Griffith, J.

The entire farm here in question had been for several years occupied by appellee as the tenant of the owner, when on August 5, 1924, the owner conveyed to appellee, by a deed duly executed, a small strip of land out of the west side of said farm. Appellee failed to put his deed of record, but continued to use and occupy all the land, the entire farm, including the strip conveyed to him, as he had theretofore done. That is to say, there was no visible change in the character of his occupancy so as to show that his possession and occupancy of the land, subsequent to his said deed, was as owner of the strip and as tenant of the remainder of the land. Later, and while appellee yet remained in possession as aforesaid, the said owner sold and conveyed the whole of the land to appellant, a bona-fide purchaser, one without notice--unless the possession then held by appellee was a sufficient notice in respect to the strip first conveyed; and thus is presented the only question to be dealt with in the case. Appellant made no inquiry of appellee, the vendee in possession.

Whatever may have been the view taken in the earlier cases in this state, we think the opinion in Frye v. Rose, 120 Miss. 778, 83 So. 179, 180, has presently settled this question in favor of the vendee in possession. It will be observed in that case that the court in banc approved and adopted the view maintained by Mr. Pomeroy "that the possession of a tenant is not only notice of all rights and interests connected with the tenancy, but is also notice of all interests acquired by collateral and even subsequent agreements; . . . that a possession originally acquired by one right or in one manner is notice of all other rights subsequently and differently obtained and held by the occupant. . . . The possession of a third...