Lucas v. New Hebron Bank, Inc.
| Decision Date | 25 April 1938 |
| Docket Number | 33172 |
| Citation | 180 So. 611,181 Miss. 762 |
| Court | Mississippi Supreme Court |
| Parties | LUCAS v. NEW HEBRON BANK, INC., et al |
Suggestion Of Error Overruled May 9, 1938.
APPEAL from the chancery court of Jefferson Davis county, HON. BEN STEVENS, Chancellor.
Suit to quiet title by W. W. Lucas against the New Hebron Bank, Inc. and others. From a decree confirming the title of named defendant, complainant appeals. Reversed, rendered, and remanded.
Reversed, decree here, and remanded.
McIntosh & McIntosh, of Collins, for appellant.
Estoppel is an affirmative defense and must be pleaded, or sufficient facts must appear in the pleading to show the essentials of estoppel.
It is respectfully submitted that even a casual examination of the answer and only plea of the appellees will disclose that none of the essentials of estoppel are alleged, directly, indirectly or by inference.
11 Southern Digest, Estoppel, sec. 110, page 511; Gringold v. Coplon, 65 So. 328; Dickey v. Vaughn, 73 So. 507; Baker, Lyons & Co. v. American Agricultural Chemical Co., 77 So. 866; Cooper v. Flesner, 23 L. R. A, (N.S.) 1187; 10 R. C. L. 844, sec. 149.
In the event it should be held that it was not necessary for the appellees to plead estoppel, it is respectfully submitted that it was incumbered upon the appellees to show by positive proof all the essential elements of estoppel.
Roberts v. Bookout, 162 Miss. 676, 139 So. 176.
If a party has his claim of title recorded he cannot be estopped by silence unless it affirmatively appears from the record that he was under some duty to speak.
At pages 89 and 90 of the record appears the purported power of attorney under which I. P. Lucas attempted to act in executing a deed of trust in favor of Wm. Barnes, which was foreclosed in 1917. It is unnecessary to set out the provisions thereof, as the instrument does not contain the words, mortgage, encumber, borrow, lien, indebtedness or any other words or figures of speech that would in any way grant to I. P. Lucas the right to mortgage the premises.
If it should be determined that the general provisions of the said purported power of attorney are sufficient, then it is respectfully urged that the said instrument was not entitled to be recorded because it was not acknowledged.
Sec. 2137, Code of 1930; Elmslie v. Thurman, 87 Miss. 537; Stokes v. Payne, Kennedy & Co., 58 Miss. 614.
It seems to be the universal rule of law that a power of attorney must possess the same requisites of deeds and other instruments authorized to be executed under the power.
Livingston, Milloy & Livingston, of Prentiss, for appellees.
An owner of property who stands by and sees a third person selling or mortgaging it under claim of title without asserting his own title or giving the purchaser or mortgagee any notice thereof is estopped, as against such purchaser or mortgagee, from afterwards asserting his title.
16 Cyc. 762, par. II; Vicksburg, etc., R. Co. v. Barrett, 67 Miss. 579, 7 So. 549; Hafter v. Strang, 65 Miss. 323, 3 So. 190, 7 Am. St. Rep. 659; Nixon v. Carco, 28 Miss. 414; Dickson v. Green, 24 Miss. 612.
The record shows that E. J. Lucas had actual knowledge of the first trustee's sale of the land in 1917, and took no action or legal step to assert any claim to the land that he might have had, and the record further shows that the appellant in this case, though having power of attorney for the said E. J. Lucas, his principal, knew of the deeds of trust that were being given on said land by his brother, I. P. Lucas, Amanda Lucas, and John Hardy, and yet he at no time prior to the filing of this suit on October 13, 1934, made any effort or took any steps to claim any interest in the land either for himself or for his said principal, E. J. Lucas; on the contrary he allowed and permitted Amanda Lucas and John Hardy from time to time to execute deeds of trust to the New Hebron State Bank, appellee herein, and Jefferson D. Riley and to make the New Hebron State Bank a warranty deed to said land. In fact, the record shows that there was a lapse of time from the date of the trustee's deed to I. P. Lucas to the date of the recordation of the deed from Georgia Lucas to appellant of ten years six months and twenty-seven days. And that no suit of any kind was ever instituted by E. J. Lucas or appellant with reference to this land until the filing of the present suit on the 13th day of October, 1934, just seventeen years eight months and twenty-seven days from the date the cause of action accrued to E. J. Lucas.
Sections 2285 and 2286, Code of 1930.
This court held in the case of Jones v. Rogers, 85 Miss. 805, 38 So. 210, that an action is barred, concealed frauds excepted, in ten years after the right of action accrued, whether defendant has or has not been in the adverse possession of the land.
R. Co. v. Thomas, 86, Miss. 27, 38 So. 770.
Section 2287, Code of 1930, specifically provides that ten years actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten years after the removal of such disabilities, as provided in the first section of this chapter. We maintain under this section that in addition to acquiring title by estoppel that defendants in this case acquired title by adverse possession. Certainly the power of attorney and the trustee's deed constituted color of title, and I. P. Lucas and Amanda Lucas were permitted to remain in possession of the land in controversy under record title for more than ten years prior to the institution of the suit by appellant.
Argued orally by H. M. McIntosh, Jr., for appellant, and by W. H. Livingston, for appellee.
The appellant, W. W. Lucas, filed a bill in the chancery court of Jefferson Davis county against the New Hebron Bank et al., alleging that he was the true, legal, and equitable owner of 26 acres of land, hereafter spoken of as lot 4 in a certain section, township, and range, and that the appellees were claiming the title thereto by virtue of certain deeds and deeds of trust which cast a cloud upon his title. He prayed for the cancellation of the alleged title of the appellees, and for confirmation of his title, and for rents.
The appellees answered and denied the material allegations of the bill, alleged title in themselves, and also alleged title in the bank by adverse possession since January, 1917. The bill was filed sometime in 1934.
Upon hearing all the evidence the court below dismissed the bill of appellant, and confirmed the title of the bank in the land here in controversy. By agreement the appellant offered the following record evidence: The United States to Nancy Robertson, as shown by tract book of original entries of that county. Nancy Robertson to Willis Lucas, warranty deed dated February 2, 1884.
The appellant further offered a partition deed from the heirs-at-law of Willis Lucas to I. P. Lucas, the latter being an heir-at-law with five other children of Willis Lucas, which deed of trust recorded and conveyed the 26 acres of land here in controversy. Appellant offered a deed to him to this land from Georgia Lucas, dated October 20, 1926, which is of record in deed book 35, page 102, in the office of the chancery clerk of Jefferson Davis county. E. J. Lucas died in 1926, leaving his widow as his sole heir. So far as is here contended, this evidence constitutes a perfect record title to the land.
The evidence shows the following as the basis of the appellee's title, in so far as the record discloses: A power of attorney from Eli J. Lucas to Isaac P. Lucas, dated March 8, 1908, and recorded; I. P. Lucas, attorney in fact for E. J. Lucas, deed of trust to William Barnes, beneficiary, Henry Barnes, trustee, dated October 20, 1915; William Barnes to C. E. Thompson, appointment of the latter as substituted trustee, recorded December 16, 1916; C. E. Thompson, substituted trustee, by trustee's deed, to I. P. Lucas, January 24, 1922; I. P. Lucas and his wife, Amanda Lucas, to Bank of Monticello, H. E. Wilson, trustee; deed of trust dated January 31, 1920; Bank of Monticello by E. S. Fairman, cashier, to W. H. Livingston, substituted trustee; I. P. and Amanda Lucas to Bank of Monticello, deed of trust dated April 25, 1922; W. H. Livingston, substituted trustee, to John Hardy, trustee's deed dated January 29, 1926; John Hardy and wife, deed of trust to Bank of Monticello, H. E. Wilson, trustee, dated January 30, 1926; John Hardy to Amanda Lucas, warranty deed, dated August, 1927; Amanda Lucas to John Hardy, G. M. Milloy, trustee, deed of trust dated August 30, 1927; Amanda Lucas to Jefferson D. Riley, J. C. Mobley, trustee, deed of trust dated December 3, 1928; Amanda Lucas to Jefferson D. Riley, J. C. Mobley, trustee, deed of trust dated February 14, 1928; Amanda Lucas to Jefferson D. Riley, J. C. Mobley, trustee, deed of trust dated December 31, 1929; Amanda Lucas to New Hebron State Bank, warranty deed, dated February 15, 1932; all the above conveyances having been duly recorded.
During the period from 1917 to 1936, I. P. Lucas executed two other deeds of trust, one to a stranger, which was never effective.
It will be observed that, so far as record title is concerned, the title of the appellee relates back to, and is based upon, the power of attorney from E. J. Lucas to I. P. Lucas, by virtue of which I. P. Lucas...
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