Ligon v. Barton

• Decision Date: 16 April 1906
• Citation: 40 So. 555,88 Miss. 135
• Court: Mississippi Supreme Court
• Parties: JAMES A. LIGON ET AL. v. SAMUEL P. BARTON

40 So. 555

88 Miss. 135

JAMES A. LIGON ET AL. v. SAMUEL P. BARTON

Supreme Court of Mississippi

April 16, 1906

FROM the chancery court of, first district, Hinds county, HON ROBERT B. MAYES, Chancellor.

Ligon and others, the appellants, were complainants in the court below; Barton, the appellee, was defendant there. From a decree in defendants' favor the complainants appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Harper & Potter, for appellants.

If the deed from Ligon to his wife, granting merely a power to sell the land for a particular purpose, had been properly acknowledged and ready for delivery, keeping it in his own room among his private papers was not of itself such negligence or disregard of the interest of others as to make an estoppel against his heirs, even if the deed had been taken from its place of keeping by his wife during his lifetime and placed on record. He had a right to trust his wife and to rely upon her dealing honestly with him, and it is probable that he regarded the tin box, where the deed was kept, as the safest place for its keeping. Clearly, this would be the view of any man of ordinary prudence in dealing with members of his household.

In a California case where the dealing was with a stranger and at arms' length, a grantor who had a deed ready for delivery and was to deliver it upon the grantee's executing a mortgage to secure the purchase money, allowed the grantee to take it from the room and be absent with it for a half hour during which time he conveyed to an innocent purchaser for value, it was held: "That the act of the grantor in allowing the deed to be removed from the room, before the execution of the mortgage, even conceding it to be negligence on his part, was not such a degree of negligence as to create an estoppel against him in favor of the purchaser without notice, to prevent a plea of non-delivery of the deed to the grantee." Gould v. Wise, 97 Cal. 532.

Where a husband and wife made a deed to the wife's daughter, in order to place the title to land in such a condition that the surviving spouse could hold and transfer the property without reference to the minor children, and the deed was not delivered, but placed by the husband in a drawer of an organ where he kept his private papers. The grantee was a member of the family, and took the deed, without permission, had it recorded, and sold the property, it was held: "That the husband was not negligent in keeping the deed as he did, so as to estop him as against his step-daughter and her grantee from suing for its cancellation." Garner v Risinger, 81 S.W. 343.

The deed of Ligon contained a defective acknowledgment and was not subject to recording, and not being fully executed there could be no estoppel in this case. Tasher v Beckwith, 30 Wis. 55.

There is no case in the books where the doctrine of estoppel has been successfully invoked under similar facts to the case at bar, and where more than ordinary care is required in handling an undelivered deed. The doctrine in this state rather opposes the idea that title can be acquired to land by mere estoppel.

"In the absence of fraud, misrepresentation, culpable silence, or the equivalent, a party cannot by estoppel be divested of title to real estate." Thomas v. Romana, 82 Miss. 256 (s.c., 33 So. 969); Sulphine v. Dunbar, 55 Miss. 255; Staton v. Bryant, 55 Miss. 261; Davis v. Bowmar, 55 Miss. 780; Murphy v. Jackson, 69 Miss. 403 (s.c., 13 So. 738); Hill v. Nash, 73 Miss. 849 (s.c., 19 So. 707); Demourelle v. Piazza, 77 Miss. 433 (s.c., 27 So. 623).

There can be no estoppel in this case, unless it arise from the mere fact that a man died with an undelivered deed in his possession. Whether he kept it with caution or neglect is immaterial, since the fact remains that while he lived it remained safely in his possession, and if the deed had been kept with the utmost caution, it of necessity went into the hands of his family at his death. To make an estoppel by conduct: "1. There must have been a representation or concealment of material facts. 2. The representation must have been made with the knowledge of the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intention that the other party should act upon it. 5. The other party must have been induced to act upon it." Bigelow on Estoppel, p. 544; Turnipseed v. Hudson, 50 Miss. 436.

"The rule is well settled that unless the representation of the party to be estopped has been really acted upon, the other party acting differently, that is to say, from the way he would otherwise have acted, no estoppel arises." Bigelow on Estoppel, p. 620; Sulphine v. Dunbar, 55 Miss. 255; Staten v. Bryant, 55 Miss. 261; Davis v. Bomar, 55 Miss. 781; Love v. Stone, 56 Miss. 449.

"An equitable estoppel can be predicated on conduct only where the party sought to be estopped, acts with full knowledge of the facts, unless he asserts to be true that which he does not know to be true, and his adversary relies upon the statement, and thereby suffers injury." Thomas v. Romano, 82 Miss. 256 (s.c., 33 So. 969).

In view of the fact that Mr. Barton did not rely upon this deed, and did not know of its existence, and appellants made no representation to him, it is difficult to understand how he can successfully set up the deed as having misled him to his injury, or how appellants are estopped to assert title. The unauthorized act of the clerk in copying Mr. Ligon's deed into the record books was void, and Mrs. Ligon did a vain thing in taking it to him to be recorded, and more particularly so since no one pretends that they were misled by its being on the record books. Buntyn v. Compress Co., 63 Miss. 194.

If the deed from Mr. Ligon to his wife had been acknowledged, delivered and placed on record, Mr. Barton would have acquired no title to the undivided interest of appellants in the land, because Mrs. Ligon inherited from her husband, and owned in fee simple an undivided one-ninth interest in the land involved in this suit, and Mr. Ligon's deed only gave a power of sale for a particular purpose, and in her deed to Mr. Barton there is no reference to the power or to the deed from Mr. Ligon to her. Yates v. Clark, 56 Miss. 216; Hay v. Mayer, 34 Am. Dec., 453; Holder v. Am. Inv. & Loan Co., 94 Ga. 640; New Eng. Mtg. Co. v. Buice, 98 Ga. 795; Bell v. Twilight, 22 N.H. 500; Howles v. Fisher, 77 N.C. 437; Ridgely v. Cross, 83 Md. 161; Daniel v. Spelt, 100 F. 727; 2 Wash. Real Prop., sec. 1717, p. 628; Sugden on Powers (vol. 1), p. 453; 4 Kent's Com. (13th ed.), p. 335; 2 Perry on Trusts, sec. 511 (c).

The general doctrine is that a purchase by one tenant in common of an outstanding title or incumbrance, inures to the benefit of all, and the universal rule, which has never been departed from as far as our information goes, is that a tenant in common can never so acquire title hostile to his co-tenants, where he, himself, is personally liable and bound to meet a part of the outstanding incumbrance. Smith v. McWhorther, 74 Miss. 400 (s.c., 20 South Rep., 870); Wyatt v. Wyatt, 81 Miss. 219 (s.c., 32 So. 317); Turner v. Sawyer, 150 U.S. 578; Ingles v. Webb, 117 Ala. 387; Brittain v. Hardy, 20 Ark. 381; Olney v. Sawyer, 54 Cal. 379; Montegue v. Selb, 106 Ill. 49; McPheelers v. Wright, 124 Ind. 560; Leach v. Hall, 95 Iowa 611; Hinters v. Hinters, 114 Mo. 26; Carson v. Broody, 56 Neb. 648; Knalls v. Barnhart, 71 N.Y. 474; Touney v. Touney, 159 Pa. 277; Farrar v. Farrar, 29 Gratt (Va.), 135; Gilchrist v. Beswick, 33 W.Va. 168; Roundtree v. Denson, 59 Wis. 522.

Alexander & Alexander, and George B. Power, for appellee.

1. The heirs of B. T. Ligon are estopped to deny the delivery of the instrument, or to vacate the conveyance made in execution of the power contained in it.

2. If the heirs of B. T. Ligon are estopped, yet he treated the deed as having been delivered, and it will be so treated in a court of equity.

3. S. P. Barton had the right to buy at the sale under trust deed to the mortgage company, and as the sale was fair, it will now be confirmed.

4. If the deed from Ligon to his wife was never delivered and the heirs of Ligon are not estopped and the foreclosure sale was void, yet Alexander and the estate of E. M. Parker advanced the money to discharge the mortgage company's debt and took a mortgage from Barton, they are innocent purchasers, and as such are entitled to enforce their mortgage, and also to subrogation to the mortgage of the mortgage company.

5. B. T. Ligon, being the natural head of his family and provider therefor, and the debt of the mortgage company being primarily his debt, his land will be first subjected. 9 Am. & Eng. Ency. Law (2d ed.), 155; Gage v. Gage, 36 Mich. 233.

In Burton v. Huntington, 21 Mich. 416, which was the case of delivery of a note, the court draws the distinction very clearly between the theft of a note and negligence or misplaced confidence on the part of the maker by which the payee got possession. The doctrine is clearly recognized that if a third person is injured through the negligence or carelessness of the maker, he will be estopped to deny delivery.

In Garner v. Risinger, 81 S.W. 343, the question turned on the intent of the grantor, and he was still living and testified as to his intent. The deed was not placed in any receptacle to which the grantee, the stepdaughter, had access, and the court excludes all idea of negligence by stating that there was nothing in the testimony to indicate that he had any reason to suppose that she would attempt without permission, to obtain possession of the deed, and, therefore, the court held that the evidence did not show...