Hytken v. Bianca

• Decision Date: 20 February 1939
• Docket Number: 33550
• Citation: 186 So. 624,186 Miss. 323
• Court: Mississippi Supreme Court
• Parties: HYTKEN et al. v. BIANCA

186 So. 624

186 Miss. 323

HYTKEN et al. v. BIANCA

No. 33550

Supreme Court of Mississippi, Division A

February 20, 1939

May 1939

February 20, 1939

APPEAL from the circuit court of Sunflower county HON.S. F. DAVIS Judge.

Action of ejectment by Carmelo Bianca against A. M. Hytken and others, to recover possession of house and lot. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

On suggestion of error. Suggestion of error overruled.

Reversed and remanded. Suggestion of error overruled.

Cooper & Thomas, of Indianola, for appellants.

The lower court erred in excluding from evidence the original, or parent, lease contract between Antonio Conguista, through Paul Conguista, his agent and attorney in fact, as lessor and defendant Hytken, as lessee, the renewal letter extending the life thereof, and the subcontracts between defendants Hytken and Andrews, inter se.

Thomas v. Ferrell, 184 So. 425; Richard v. Kings Daughters &amp Sons, Circle No. 2, 182 So. 101; Palmer v. Fair Co., 140 Miss. 294, 105 So. 513.

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.

Frye v. Rose, 120 Miss. 778, 83 So. 179; Russell v. Scarborough, 155 Miss. 508, 124 So. 648; Bass v. Estill, 50 Miss. 300; Buck v. Paine, 50 Miss. 648; Wailes v. Cooper, 24 Miss. 208; Harper v. Reno, Freem. Ch. 323; Taylor v. Lowenstein & Bro., 50 Miss. 278; Dixon & Starkey v. Doe ex dem. Lacoste, 1 S. & M. 70; Kirby v. Bank of Carrollton, 102 Miss. 190, 59 So. 10; Palmer v. Fair Co., 140 Miss. 294, 105 So. 513; Perkins v. Swank, 43 Miss. 349; Lyon & Co. v. Carr, 119 So. 306, 151 Miss. 850; Breland v. Parker, 150 Miss. 476, 116 So. 879; Horton v. Misso, 157 Miss. 371, 128 So. 103; Stovall v. Judah, 74 Miss. 747, 21 So. 614; 66 C. J., page 1116, sec. 942, and page 1168, sec. 1014; Bratton v. Rogers, 62 Miss. 281; Levy v. Holberg, 67 Miss. 526, 7 So. 431; Kalmia Realty & Ins. Co. v. Hardy, 164 Miss. 313, 145 So. 506.

The rule of law is admitted and recognized that since, in the making of a lease for a longer term than one year, it is essential that it should be by deed, the appointment of an agent to make such lease was also required to be by deed.

Lobdell v. Mason, 71 Miss. 937, 15 So. 44; Hutchinson v. Platt, 119 Miss. 606, 81 So. 281.

We must admit that the power or instrument drafted by Judge Everett, as attorney for Paul Conguista, in 1933, at the latter's request, was effectual to confer the necessary power on Paul Conguista to execute the lease with Hytken for the terms therein specified insofar as the language and terms used therein are concerned. We must admit further that under the undisputed evidence in this case that said power, as a deed, was "signed and delivered." The paper thus prepared by Judge Everett was handed to Paul Conguista, and by the latter forwarded to his father, Antonio Conguista, in the United States mails from Rosedale, Mississippi, by registered mail, with sufficient postage, and addressed to his said father thusly, "Antonio Conguista, Esquire, Cefalu, Italy, " his postoffice address and where he lived in 1933 and through 1936. About thirty years later, said power came back through the mails to said Paul Conguista duly signed in the genuine handwriting of his said father. Without more being said, said facts conclusively show the same was "signed and delivered, " even though the word "delivery" eo nomine was not used, and even thouh said instrument was not acknowledged.

10 R. C. L. 878, sec. 24; Jones on Evidence, Civil Cases, (3rd), page 56, sec. 52; 22 C. J. 97, sec. 36.

Should we concede, for the argument's sake merely, that the facts adduced on the trial did not conclusively show delivery, the law, again, would presume as much from the facts thus presented, for possession of a deed by a party claiming under the grantee is evidence of delivery to such grantee until the contrary is shown.

Morris v. Henderson, 37 Miss. 492; McAllister v. Richardson, 103 Miss. 418, 60 So. 570; Devereux v. McMahon, 12 L.R.A. 205; Burditt v. Colburn, 13 L.R.A. 676; Sections 1453 and 1587, Code of 1930.

Inasmuch as our court holds that a power of attorney to execute a lease of lands for more than a year must be by deed, we, therefore, state that the law as to deeds with reference to the necessity of acknowledgment and recordation controls as to said power of attorney. We know of no law or decision that, as to the parties, privies or those taking with notice, a deed between private persons or individuals need be acknowledged or recorded, except a conveyance from husband to wife, or vice versa.

Section 1944, Code of 1930; Snider v. Udell Woodenware Co., 74 Miss. 353, 20 So. 836.

The rules of law relative to deeds and the necessity of acknowledgments therefor are well established. Acknowledgment and recording are not made compulsory. They are only for the purpose of registration and constructive notice.

Mexican Gulf Land Co. v. Globe Trust Co., 125 Miss. 852, 88 So. 512; Hill v. Samuel, 31 Miss. 307; Finch v. Tanner, 2 Miss. Dec. 209; 1 C. J. S., page 780, sec. 6; Hutchinson v. Platt, 119 Miss. 606, 81 So. 281; Patton on Titles, page 674, sec. 201; 1 R. C. L., pages 253 and 257, sec. 3.

Our court has conclusively stated that the validity of a power of attorney is not dependent upon legal acknowledgment and recordation, but the statutes relative to powers of attorney, being Chapter 56, Code of 1930, in no instant or by any verbage expressly or mandatorily requires as a condition for the validity thereof for said powers to be acknowledged and recorded. The specific contention that said power of attorney should be acknowledged and recorded in order to be valid was made but was expressly overruled and found untenable in the case of Lobdell v. Mason, 71 Miss. 937, 15 So. 44.

Valentine v. Piper, 22 Pickering 85, 33 Am. Dec. 714; Caley v. Morgan, 114 Ind. 350, 16 N.E. 790; McAdow v. Black, 4 Mont. 475, 1 P. 751; Wilson v. Troupe, 2 Cow. 195, 14 Am. Dec. 458; Tyrell v. O'Conner, 41 A. 674, 56 N. J. Eq. 448.

We respectfully state that the learned trial judge was in error in the rulings made as to said power of attorney and its lack of validity or existence for the reason that it is patent that his exclusion of profferred evidence thereasto was based on an opinion that it was necessary under our laws for said power to be both acknowledged and recorded.

Plaintiff was put on notice of power of attorney and terms thereof because of (a) possession of premises by Hytken or subtenant, and (b) notice imparted by rental checks delivered by Hytken to plaintiff.

1 C. J. S., page 792, sec. 6 b (2); Ladnier v. Stewart, 38 So. 748.

Recorded copy of power was erroneously excluded by court, for (a) it was best evidence available, and admissible in ejectment proceedings.

Jones on Evidence, page 810, sec. 521; 22 C. J., page 832, sec. 965, and page 833, sec. 966; 17 R. C. L., page 1179, sec. 16; Harper v. Tapley, 35 Miss. 506.

(b) It was admissible as secondary evidence, for proper foundation had been first laid, and further plaintiff did not object on this point.

Harper v. Tapley, 35 Miss. 506; DeLane v. Moore, 14 How. 253, 14 L.Ed. 409; Winn v. Patterson, 9 Pet. 663, 9 L.Ed. 266.

(c) No question as to the sufficiency of the proof showing existence of power.

Harper v. Tapley, 35 Miss. 506; Nlewman v. Bank, 67 Miss. 770, 7 So. 403; 22 C. J. 86, sec. 28.

Because Hytken and/or subtenant Andrews in possession and occupancy of premises, and not in default as to rent, under the original lease contract, which if not properly a "lease" was at least "contract for lease" for based on power of agency in writing, and not within statute of frauds, empowering Paul Conguista to so execute--if we argumentatively conceded that power of attorneys must be acknowledged and recorded to be valid, appellant, defendants Hytken and Andrews, should have prevailed in lower court.

Conceding power of attorney proper must be acknowledged and recorded, original lease executed by agent who had authority in writing, and hence said agency instrument not within statute of frauds.

Chapter 152, Laws of 1926; Rogers v. Foley, 139 Miss. 327, 104 So. 78; Curtis v. Blair, 26 Miss. 322; Lobdell v. Mason, 71 Miss. 937, 15 So. 44; Hopper v. McAllum, 87 Miss. 441, 40 So. 2; Hutchinson v. Platt, 119 Miss. 607, 81 So. 281.

Hytken and subtenant Andrews in possession and occupancy of premises under at least a "contract for a lease, " if not "lease, " and not in default as to rent, and hence entitled to retain possession as against plaintiff, which possession is protected even in ejectment proceedings, or at law.

Moring v. Ables, 62 Miss. 263; Bolton v. Roebuck, 77 Miss. 711, 27 So. 630; Lobdell v. Mason, 71 Miss. 937, 15 So. 44; 66 C. J. 547, sec. 89.

Bianca is not purchaser without notice, because of said possession by Hytken and subtenant, and because of contractual notice imparted by rent checks from Hytken which he accepted.

Because of plaintiff's permitting Hytken and subtenant Andrews to remain in possession of premises after he acquired title thereof, and acceptance of rental checks from Hytken, both before and after, institution of suit, bearing notations thereon substantially reading "Rent as per Contract and Agreement, " plaintiff is estopped to bring this suit, as he thereby adopted and ratified original lease contract with Hytken as made by Paul Conguista and is bound thereby, regardless of whether power of attorney or agency was defective, or not acknowledged or recorded, or any irregular or illegal incidents surrounded said power or its procuration.

Aaronson v. McGowan, 180 So. 738; ...