Lay v. Nutt

• Decision Date: 18 January 1943
• Docket Number: 35204.
• Citation: 194 Miss. 83,11 So.2d 430
• Court: Mississippi Supreme Court
• Parties: LAY v. NUTT.

11 So.2d 430

194 Miss. 83

LAY v. NUTT.

No. 35204.

Supreme Court of Mississippi

January 18, 1943

A M. Warwick and Harold W. Davidson, both of Carthage, for appellant.

O H. Barnett, Jr., of Carthage, for appellee.

ALEXANDER Justice.

Complainant Nutt, filed his bill to cancel, as a cloud upon his title to certain lands, the deed thereto of appellant and to enjoin certain acts of dominion exercised by the latter. The land involved is the N.W. 1/4 of S.E. 1/4, Section 11, Township 9 North, Range 6 East, Leake County. In 1932, the record owner thereof was one Boyd who executed a deed to Nutt on April 6 1932. The deed was withheld from record until after a second deed from Boyd to Chipley executed and recorded exactly five years later. On May 9, 1940, Chipley deeded the lands to Lay. If such were the complete factual situation, the right of Lay would of course be superior. However, to avoid the effect of our registry laws Nutt contends (1) that Lay was not a bona fide purchaser from Chipley, and (2) that Chipley took his deed with actual or constructive knowledge of the change in ownership from Boyd to Nutt.

We need examine only the second proposition for if Chipley was a bona fide purchaser, the status of Lay as Chipley's grantee would be immaterial. Lusk v. McNamer, 24 Miss. 58; Equitable Securities Company v. Sheppard, 78 Miss. 217, 28 So. 842; Barksdale v. Learnard, 112 Miss. 861, 73 So. 736.

No actual notice to Chipley was shown. His mala fides must be shown, if at all, by circumstances which would reasonably put him upon notice or inquiry and which would be reasonably calculated to disclose the true state of the title. In 1932, when Boyd executed the deed to Nutt, the grantor was living upon and cultivating the land. The grantor remained thereon during the subsequent years up to and including the year 1940. In 1934, Boyd executed a crop mortgage covering this land, but this was not recorded. In 1936, the year prior to the deed to Chipley, one Warner Stewart, a stepson of Boyd, who lived about a quarter of a mile from grantor, cultivated part of this land. Nutt testified that Boyd remained upon the land with his permission but as his tenant and worked some of the land; that the assessment of the land remained in the name of Boyd who paid the taxes thereon up to 1936; that in 1936, the property was worked by Stewart as the tenant of Nutt. This last allegation is denied by Stewart who testified: "I don't know who I rented it from, but I carried some rent corn and carried it to Mr. John and he told me to take it to Mr. Nutt." During this year the land was cultivated jointly by Stewart and L. J. Boyd, grantor's grandson, who lived with John Boyd and his wife. During the period between the execution of the two deeds there was only one dwelling house on the land and that was occupied by grantor. Stewart testified that he did not rent from Nutt in 1937 but from Boyd the year in which Boyd executed his deed to Chipley. Chipley knew the grantor, Boyd, his grandson, and Stewart, the stepson. No one other than these cultivated the land prior to the deed to Chipley. Its manner of operation thereafter is not relevant. Where a grantor who is the record owner of land remains in possession and his deed to grantee is withheld from record, a subsequent purchaser is not charged with notice nor put upon inquiry as to the true situation. Appellee's case therefore must be grounded, if at all, upon such constructive notice as is predicable of the tillage of the lands during 1936 by Stewart. The trial court so construed the situation. As adverted to, Stewart, while he stated that he was a tenant of Boyd in 1937, did not comprehend his status as a tenant in 1936. He carried some produce to his stepfather, Boyd, as rental upon the assumption that he was working for him. While he was told to deliver same to Nutt, he did not fully appreciate to what arrangement it was pursuant. It is true that Nutt testifies that he rented the place to Stewart and that the following year Stewart executed a rent note to him but Stewart's understanding of this transaction was vague and the import and purpose of the "paper" signed by him was misunderstood.

Regardless of the effect of those decisions sustaining constructive notice where lands conveyed are in the possession of third persons as tenants or otherwise (Gordon v. Sizer, 39 Miss. 805; Stovall v....