In Re: On Suggestion Of Error
| Decision Date | 24 February 1936 |
| Docket Number | 31732 |
| Citation | 175 Miss. 115,166 So. 345 |
| Court | Mississippi Supreme Court |
| Parties | On Suggestion Of Error.) |
(In Banc.)
APPEAL AND ERROR.
Contentions not decided by chancellor and not necessarily involved in matters he did decide, and not raised or argued in briefs or oral arguments before Supreme Court, would not be considered by Supreme Court.
HON. N R. SLEDGE, Chancellor.
Suit by the Federal Land Bank of New Orleans and others against M. J Newsom and another. From the decree, both plaintiffs and defendants appeal. Affirmed and cause remanded.
On suggestion of error.
Prior decree (161 So. 864) affirmed, and case remanded.
James McClure, of Sardis, for appellants.
The sole purpose of construing a will is to arrive at the intention of the maker and this intention must be determined from the whole instrument construed in light of the circumstances surrounding the maker and at the time of the execution thereof.
Henry v. Henderson, 103 Miss. 48, 60 So. 33.
The limitation contained in sub-paragraph "d" provides that in case of the death of one of said children without leaving any child living, the lands devised to such child who shall die without leaving a child is devised to the other two of the testator's children equally during their natural lives, which constituted a devise to more than two donees then living, which is prohibited by the statute and under the terms thereof the first donee takes a fee simple estate in the lands devised.
Section 2446, Code of 1892; section 2776, Code of 1906; Smith v Muse, 134 Miss. 827, 98 So. 436.
The named devisees of the last will and testament acquired a fee simple title to the lands devised to them.
The statute law that was in effect at the time that Dr. Newsom died was brought forward into the 1930 code without change. The pertinent section of this code which provides in what county wills shall be proved is section 1599.
Sections 1613, 2146, Code of 1930; Carrollton v. North Carrollton, 109 Miss. 494.
A will when established, transfers title to real estate as effectually as is done by the terms of a deed.
Klein v. McNamara, 54 Miss. 90, 105; Reddoch v. Williams, 129 Miss. 272, 92 So. 831.
Since a purchaser of land from the heirs of a grantor in a prior unrecorded deed is entitled to the protection of the recording acts, why would not a purchaser from the heirs of a testator in an unrecorded will not be protected under the recording statutes? I respectfully submit that the same reason and logic which support the court in upholding the rights of a purchaser from the heirs of a grantor in a prior unrecorded deed support and uphold the rights of a purchaser from the heirs of a testator whose will has not been recorded in the county in which the lands are situated.
Holland v. Nance, 102 Texas, 177, 114 S.W. 346; Belt v. Adams, 125 Miss. 387; Virginia Trust Co. v. Buford, 86 So. 356, 516.
A tenant for life cannot acquire a tax title to defeat the estate of the remainderman. That rule, however, does not apply to the facts alleged in the complainants' bill.
The following sections of the Mississippi Code of 1930 contain the law relative to the tax liens and the liability of property for taxes:
Sections 3120, 3121, 3122, 3264 and 3265; also see Grenada Bank v. Young, 104 So. 166.
The broad principles governing the doctrine of subrogation are well settled and liability upheld in this jurisdiction but in all the statements of the doctrine there is the exception that a mere volunteer is never entitled to relief. The problem therefore is to determine who is or is not a volunteer. A volunteer is one who has nothing to do with the transaction or who officiously intrudes himself without public or private invitation, into a matter which is none of his business, intermeddler. But to say that one who has nothing to do with the transaction is a volunteer, and, that on the other hand, one who has some legitimate concern therein is not a volunteer still does not fully cover the question for the latter statement in the converse would be no accurate summary of the rule.
Love, Supt. of Banks, v. Robinson, 137 So. 499, 161 Miss. 585; Robinson v. Sullivan, 102 Miss. 597, 59 So. 846; Staples v. Fox, 45 Miss. 667.
It has frequently been held that where a mortgagee has paid taxes which it was the duty of the mortgagor to pay, the mortgagee is thereby subrogated to the rights of the state which had a lien on the land for taxes. So one who in good faith or who pays taxes on property with the intention of protecting a lien thereon is entitled to be subrogated to the lien of the state or municipality, although the lien supposed to exist and for the protection of which the person pays the taxes does not in fact exist.
25 R. C. L. 1368, par. 51; Childs v. Smith, 51 Wash. 457, 99 P. 304, 130 A. S. R. 1107; Stone v. Tilley, 100 Tex. 487, 123 Am. St. Rep. 819; Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S.W. 593; Dunsmuir v. Port Angeles Gas, Water, E. L. & P. Co., 30 Wash. 586, 71 P. 9; Beyer v. Investors' Syndicate, 31 N.D. 247, 153 N.W. 476.
A mortgagee who pays taxes to protect the mortgaged property is subrogated to the tax lien upon the property, and such lien is not subject to the operation of the statute of limitations, and the mortgagee is entitled to recover the tax payments, even though the mortgage be no longer enforceable.
Catlin v. Mills, 140 Wash. 1, 47 A. L. R. 545, 247 P. 1013; Utah State Bldg. & L. Assn. v. Perkins, 53 Utah, 474, 173 P. 950.
The payment of taxes in good faith in protection of a claim of lien establishes an equitable lien upon the property for the amount so paid, and it is immaterial whether a mortgage under which the person paying taxes was claiming was valid or invalid.
Union Cent. L. Ins. Co. v. Chesterley, 100 Wash. 260, 170 P. 558; Gillette v. Oberholtzer, 45 Idaho 571, 264 P. 229; Aultman & T. Co. v. Jenkins, 19 Neb. 209, 27 N.W. 117; Hudson v. Moon, 42 Utah 377, 130 Pac. 774; Goodnow v. Litchfield, 63 Iowa, 275, 19 N.W. 226, 123 U.S. 549, 31 L.Ed. 199, 8 S.Ct. Rep. 210. Butler & Snow and L. F. Easterling, of Jackson, for appellants.
The difference between a will and a deed is principally as to the time in which the conveyance will take effect. Sometimes it is difficult to determine whether an instrument is a deed or a will. In either case it is a transfer of property. There can be no difference in reason between a deed from A. to B. conveying certain property and a will from A. to B. conveying the same property. In either case it is a transfer of title and ownership and a necessary step or link in the chain of title. In the case of ejectment or a bill to try title the proof of one is just as essential as the proof of the other, and we submit that within the spirit, the reason and the letter of the statutes, a will is an instrument affecting the title to land and recordable in the county where the land is situated.
There is a presumption of intestacy.
Sielbeck v. Grotham, 248 Ill. 435, 94 N.E. 67, 21 Ann. Cas. 229.
Whenever the death of any person is shown, until rebutted, the presumption is that he died intestate, and that his estate descends in pursuance of the laws of inheritance.
Schmidt v. Brown, 226 Ill. 590, 80 N.E. 1071, 11 L. R. A. (N. S.) 457, 117 Am. St. Rep. 261; Warvelle on Ejectment 366; Lyon v. Kain, 36 Ill. 362.
It is a general rule that, in the absence of all evidence to the contrary, a person shown to be dead is presumed to have died intestate.
Sims v. Boynton, 32 Ala. 353, 70 Am. Dec. 540; Murphy v. Crowley, 140 Cal. 141, 73 P. 820; Stephenson v. Doe, 8 Blackf. 508, 46 Am. Dec. 489; Stokesberry v. Reynolds, 57 Ind. 425; McClanahan v. Williams, 136 Ind. 30, 35 N.E. 897; Pennsylvania Mort. Trust Co. v. Moore, 150 Ind. 456, 50 N.E. 72; Baxter v. Bradbury, 20 Me. 260, 37 Am. Dec. 49; Jacobs v. Fowler, 135 A.D. 713, 119 N.Y.S. 647; Mitchell v. Thorne, 134 N.Y. 541, 32 N.E. 10, 30 Am. St. Rep. 699; Barson v. Mulligan, 191 N.Y. 306, 84 N.E. 75, 16 L. R. A. (N. S.) 151; Lyon v. Kain, 36 Ill. 362.
We apprehend that the above is the universal rule on this subject, so, therefore, appellant had the right to assume and presume that the decedent, T. C. Newsom, had died intestate, and the affidavits furnished and the application for the loan in question go further than is required under this presumption. All the appellant had to ascertain from the face of the record was that all of the heirs of T. C. Newsom had conveyed their interest in the land in that county to the party from whom they acquired title. Having ascertained this fact, and having acted thereon in good faith and for a valuable consideration, to wit, the loan of twenty thousand dollars, it should be protected by the recording statutes and by this presumption. Going further than the presumption, the said mortgagors to the appellant, in the application and in the affidavits furnished, showed that the decedent had died intestate, which fact was borne out, buttressed and supported by the records of Panola county.
Reddoch v. Williams, 129 Miss. 706, 92 So. 831.
It certainly seems to us most apparent on this record that the appellant is entitled to and should be protected, under the facts averred, to the full extent of the balance due upon its mortgage, and the amount expended thereunder. This, it seems to us, is simple, natural and substantial justice.
Virginia Trust Co. v. Buford, 86 So. 356, 123 Miss. 572; Belt v. Adams, 125 Miss. 387, 87 So. 666.
The Belt v. Adams case is certainly authority for holding that a will is effective as an instrument of conveyance of land, and also that an innocent purchaser who purchases without any notice of the will will...
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