Medford v. Mathis
| Decision Date | 01 June 1936 |
| Docket Number | 32298 |
| Court | Mississippi Supreme Court |
| Parties | MEDFORD et al. v. MATHIS |
1 TAXATION.
Widow who occupied and used exempt homestead of deceased husband held personally and primarily liable for payment of ad valorem taxes assessed against property the same as a life tenant in possession and enjoying income of property must pay ordinary taxes, in absence of showing exceptional circumstances (Code 1930, sec. 1412).
2. TENANCY IN COMMON.
Tenant in common of undivided interest in realty has right to convey interest to third person without let or hindrance by other tenants in common.
3. TENANCY IN COMMON.
Surviving cotenants of realty could not raise question whether deed executed by deceased tenant in common conveying undivided interest was in fact intended as mortgage.
HON JAS. A. FINLEY, Chancellor.
APPEAL from chancery court of Alcorn county HON. JAS. A. FINLEY Chancellor.
Suit between Arlin Medford and others and M. C. Mathis. From the judgment, the former appeal. Affirmed.
Affirmed.
Orma R. Smith, of Corinth, for appellants.
The appellants in their first assignment of error contend that even though the court held that M. C. Mathis, the appellee, had title to a one-eleventh undivided interest in and to the one hundred twelve-acre and the one hundred fourteen-acre tracts of land owned by the Medford estate, and that timber to the value of one hundred twenty dollars had been sold therefrom by Arlin Medford to H. E. Wilbanks, payment for which Arlin Medford received, that they had a right to show that part of the proceeds of this sale of timber was used to redeem this land from tax sale for delinquent taxes.
Lackey v. Harrington, 139 So. 313, 162 Miss. 512; Walker v. Williams, 36 So. 450, 84 Miss. 392; Bennett v. Bennett, 36 So. 452, 84 Miss. 493; Gilchrest Fordney v. Ezelle, 106 So. 269, 122 Miss. 124.
It is a recognized rule of law in this state that where an absolute deed is given by one party to another to lands where possession of the property is not given up by the party executing and delivering the deed, that parole testimony is competent to show that the deed was not intended as an absolute deed, but that it was given for the security of a debt and as a mortgage.
19 R. C. L., pages 250 and 261; Fultz v. Peterson, 28 So. 829, 78 Miss. 428; Anderson v. Burnham, 100 So. 518, 136 Miss. 613; Culp v. Wooten, 31 So. 1, 79 Miss. 503; McGehee v. Weeks, 73 So. 287, 112 Miss. 483; Blacketon, et al. v. Carte, 161 So. 696, 172 Miss. 889; Freeman v. Wilson, 51 Miss. 329; Anding v. Davis, 38 Miss. 574; Littlewort v. Davis, 50 Miss. 403.
There is a difference between an ordinary life tenant and a widow, who is enjoying the use and occupancy of a homestead, and the same rules of law that apply to an ordinary life tenant will not apply to a widow entitled to the use and occupancy of the homestead.
Lackey v. Harrington, 139 So. 313, 162 Miss. 512.
Ely B. Mitchell, of Corinth, for appellee.
It is the duty of the life tenant to pay the taxes on this real estate.
As between a remainderman and a life tenant in possession, the latter, since he enjoys the rents and profits of the land, must pay the taxes, and the remainderman, in the absence of some agreement or controlling equity, is under no obligation to do so.
17 R. C. L. 36, sec. 26; 21 C. J. 955, sec. 93; 17 R. C. L., Permanent Supplement Digest, Life Estates, sec. 26; Nordlund v. Dahlgren, 130 Minn. 462; Thomas v. Evans, 105 N.Y. 601, 12 N.E. 572; Sheffield v. Cooke, 39 R. I. 217; 17 A. L. R. 1385, notes.
The duty to pay taxes on realty rests on a life tenant in possession, even though the property is unproductive.
Thayer v. Storey, 94 A. L. R. 307; Plympton v. Boston Dispensary, 105 Mass. 544; Spring v. Hollander, 261 Mass. 373; 17 A. L. R, 1384; Cannon v. Berry, 59 Miss. 289.
It is the duty of a tenant for life to pay taxes upon the premises.
Hannah v. Palmer, 56 L. R. A. 93; Crawford v. Meis, 66 L. R. A. 154; National Surety Co. v. Walker, 38 L. R. A. (N. S.) 333; Jinkiway v. Ford, L. R. A. 1915E 343; Wilson v. White, 19 L. R. A. 581; St. Paul Trust Co. v. Mintzer, 32 L. R. A. 756; Roche v. Waters, 7 L. R. A. 533, 72 Md. 264.
A tenant for years who cuts standing timber for sale and not for necessary estovers or for clearing so much of the estate as a prudent owner in fee would clear for cultivation is guilty of waste.
Warren County v. Ganns, 80 Miss. 76.
Since the appellants, part of the heirs of Abraham Medford who have taken appeal in this case, are cotenants and were in possession of this land, it was their duty to pay the taxes on this land.
7 R. C. L. 824, sec. 19; Gearhart v. Gearhart, 6 A. L. R. 291; 62 C. J. 478, sec. 118.
A tenant in common in possession of the mortgaged real estate with the acquiescence of the other co-tenants, and in the absence of any contract to pay rent, owes a duty to the other co-tenants to pay the interest maturing on the mortgage and taxes accruing on the land.
Ellis v. Snyder, 32 L. R. A. (N. S.) 523, 82 Kan. 638.
Whatever is expressly granted, or covenanted, or promised, cannot be restricted or diminished by subsequent provisions or restrictions; but general or doubtful clauses may be explained by subsequent words and clauses not repugnant or contradictory to the express grant, covenant, or promise.
That all doubtful words and provisions are to be construed more strongly against the grantor is an ancient principle of common law which is recognized as sound rule of construction by modern jurists.
Barksdale v. Barksdale, 92 Miss 167.
It is true an absolute deed upon its face, upon certain conditions and circumstances, may be declared a mortgage, but in order for this to be done these conditions and circumstances must be met, and the evidence clear, convincing, satisfactory, conclusive and unequivocal.
19 R. C. L. 263, sec. 31; 41 C. J. 345, sec. 115; 3 Pomeroy's Equity Jurisprudence, page 2834, sec. 1195; Heirmann & Kahn v. Stricklin, 60 Miss. 234; Fultz v. Peterson, 78 Miss. 128; Section 4233, Code of 1892; Culp v. Wooten & Agee, 79 Miss. 503; 28 A. L. R. 554; Pratt v. Pratt, 28 A. L. R. 548 and annotations, page 553; Bergen v. Johnson, 21 Idaho 619; Mahaffy v. Faris, 144 Iowa 220; 24 L. R. A. (N. S.) 840; Riley v. Blackner, 51 Mont. 364; Richter v. Noll, 128 Ala. 198, 30 So. 740; Stall v. Jones, 47 Neb. 706; Bailey v. Carter, 42 N.C. 283; 19 R. C. L. 262, sec. 30; 41 C. J. 365, 366, sec. 136; Section 2289, Code of 1930.
A mortgagor who allows a mortgagee or those claiming under him to remain in possession for more than ten years is barred of all equity or redemption.
Tuteur v. Brown, 74 Miss. 774; Hembree v. Johnson, 119 Miss. 204; McDaniel v. Short, 127 Miss. 520; Proctor v. Hart, 72 Miss. 288.
The burden of proof was upon the five Medfords taking this appeal to show by clear, conclusive, convincing evidence that the warranty deed was a mortgage. Parol evidence was not permissible because the grantor was not in possession of the land and there is no fraud alleged in the bill. But, for argument's sake, let us admit that it was admissible. The court held from the evidence before him that it was a straight sale evidenced by a warranty deed. The Chancellor's finding on question of fact on conflicting evidence will not be disturbed, unless manifestly wrong.
Steede v. Ferrer, 150 Miss. 711; Sellers Motor Co. v. Champion Spark Plug Co., 150 Miss. 473; Crichton v. Haliburton & Moore, 154 Miss. 265; Hibernia Bank & Trust Co. v. Turner, 156 Miss. 842; Quine v. Wilcox, 165 Miss. 325; Cole v. Standard Life Ins. Co., 170 Miss. 330.
Argued orally by Ely B. Mitchell, for appellee.
Abraham Medford died intestate on March 5, 1911, owning at the time a homestead of one hundred sixty acres, and also some other adjoining land. He was survived by his wife and ten children. The widow has continued to occupy the homestead. One of the questions raised is whether a widow occupying and using the exempt homestead of her deceased husband is liable personally and primarily for the payment of the ad valorem taxes assessed against the homestead property.
The statute conferring this right of occupancy and use, section 1412, Code 1930, reads as follows: ...
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