A. J. Lyon & Co. v. Carr

• Decision Date: 17 December 1928
• Docket Number: 27493
• Citation: 151 Miss. 850,119 So. 306
• Parties: A. J. LYON & CO. v. CARR et al. [*]
• Court: Mississippi Supreme Court

119 So. 306

151 Miss. 850

A. J. LYON & CO. v. CARR et al. ^[*]

No. 27493

Supreme Court of Mississippi

December 17, 1928

Division B

1 MORTGAGES. One taking trust deed, reciting it was subject to prior one, erroneously describing land, was in position of junior mortgagee with notice.

Where prior trust deed erroneously described land as being in southwest quarter of certain section, instead of In southeast quarter of section, one taking second deed of trust, which recited on its face that it was subject to prior trust deed was placed in position of junior mortgagee with full notice of rights of senior mortgagee.

2. REFORMATION OF INSTRUMENTS. Holder of junior trust deed charged with notice of prior trust deed erroneously describing land cannot dispute right to reform and foreclose first trust deed.

Defendant taking second deed of trust reciting on its face that it was subject to prior trust deed, which erroneously described land, and being charged with notice of rights of complainant under prior trust deed, cannot successfully, dispute complainant's right to reform and foreclose first deed of trust.

HON. T P. GUYTON, Chancellor.

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

Suit by J. F. Carr and others against A. J. Lyon & Co. From a decree for complainants, defendant appeals. Affirmed.

Decree affirmed.

Dorroh & Strong, E. T. Bush, and F. H. & F. J. Lotterhos, for appellant.

Magruder, Walker & Magruder, and L. L. Martin, for appellees.

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

OPINION

PACK, J.

Stripped of all nonessential technicalities, the question arises in this case: Did appellant accept its deed of trust with notice that appellee held a prior deed of trust on the same land?

The essential facts necessary for an understanding of our decision are these: J. H. Williams purchased of J. F. Carr a tract of land, and gave a deed of trust to Carr on said land to secure a series of notes, payable annually, for the purchase price. This instrument was duly recorded. A forty-acre tract of the land was erroneously described in the deed of trust as being in the Southwest quarter of a certain section, when it should have been in the Southeast quarter of said section. It was a mistake of the attorney employed to draw the instrument. Thereafter, Williams executed a second deed of trust to A. J. Lyon & Co. upon the same land correctly describing the land. In this...