Robertson v. Dombroski

• Decision Date: 25 April 1996
• Docket Number: No. 93-CA-00235-SCT,93-CA-00235-SCT
• Citation: 678 So.2d 637
• Parties: Oscar Harold ROBERTSON and Pauline Robertson v. Toby DOMBROSKI.
• Court: Mississippi Supreme Court

Page 637

678 So.2d 637

Oscar Harold ROBERTSON and Pauline Robertson v. Toby DOMBROSKI.

No. 93-CA-00235-SCT.

Supreme Court of Mississippi.

April 25, 1996.

Rehearing Denied Aug. 8, 1996.

Philip Singley, Columbia, for appellant.

Garland D. Upton, Columbia, for appellee.

Before DAN M. LEE, C.J., BANKS and MILLS, JJ.

MILLS, Justice, for the court:

Oscar Harold Robertson and Pauline Robertson (Robertsons) appeal from a judgment in favor of Toby Dombroski granting a partition by sale of certain lands in Marion County. From an adverse judgment, the Robertsons have appealed to this Court presenting three issues.

1) Whether the Robertsons' possession under an unrecorded deed was sufficient to give notice, or whether Appellee was a purchaser for value without notice of Appellants' claim of ownership.

2) Whether the trial court erred, as a matter of law, in ruling that the Robertsons could not adversely possess the property as to claims of third parties where a life tenant had legal claim to the property during the same period of time.

3) Whether the Robertsons adversely possessed the property pursuant to Section 15-1-7 of the Mississippi Code.

I. FACTS AND PROCEDURAL HISTORY

Toby Dombroski filed a complaint seeking a partition of certain lands in Marion County on December 6, 1991. The Robertsons, on February 21, 1992, filed an answer denying Dombroski had any interest in the land which would allow a partition and counterclaimed that any interest Dombroski may have had was extinguished by adverse possession of the land by the Robertsons pursuant to Section 15-1-13 of the Mississippi Code.

Both parties deraign their title from a common source, being Nannie B. Robbins Whitfield (Whitfield). Whitfield acquired her title on April 20, 1963.

Dombroski deraigns his title from Whitfield, who died intestate on December 24, 1977. Her presumptive title passed by operation of law to Thomas L. Robbins and Jewell Robbins Oglesbee, as tenants-in-common, subject to only the claims of creditors through Whitfield's estate. Prior to entry of a final judgment, Thomas L. Robbins quitclaimed his one-half interest in the property to his wife, Ruth Buckley Robbins, January 16, 1978. This deed was recorded on January 17, 1978. On February 1, 1980, a final judgment was entered closing Whitfield's estate and holding that Thomas L. Robbins and Jewell Robbins Oglesbee were Whitfield's sole heirs-at-law.

Thereafter, on July 29, 1980, Ruth Buckley Robbins quitclaimed her one-half undivided interest in the property to Merle R. Willoughby. That deed was recorded on August 4, 1980.

On September 5, 1984, Merle R. Willoughby quitclaimed his one-half interest to Toby Dombroski. This deed was recorded on September 17, 1984. Dombroski paid $2,400 for the property.

The Robertsons begin the deraignment of their title with a warranty deed from Whitfield executed on June 23, 1972. This deed conveyed the land in question to the Robertsons as tenants by the entirety reserving unto the grantor "a life estate in and to the residence house and the cutilege [sic] thereto...." The Robertsons did not record this instrument until February 2, 1978, after the death of Whitfield and after the conveyance and recordation of the conveyance from Thomas L. Robbins to his wife, Ruth Buckley Robbins.

The Robertsons gave Whitfield a deed of trust and a promissory note for $6,000 for the house. The deed of trust had no due date. The promissory note was due one year from execution. These documents were not recorded but remained in Whitfield's possession.

Robertson testified that the purchase price of the property was $8,500. He paid Whitfield a portion of the debt by giving her various goods and services equal to about $2,500 prior to the execution of the promissory note and deed of trust. At the time of the execution of the promissory note and deed of trust he owed $6,000. He testified another $1,150 was paid to Whitfield in the form of other goods, which left an outstanding debt of approximately $4,850. No part of the debt was paid in cash.

Prior to the death of Whitfield, and prior to the recordation of the Robertsons' deed, the Robertsons conveyed a life estate in the subject property to Jewell Oglesbee on October 20, 1977. This deed was not recorded until May 8, 1979, after the deed form Whitfield to the Robertsons' was recorded. After the death of Whitfield, Robertson tendered two cashier's checks to Thomas L. Robbins and Jewell Robbins Oglesbee, each in the amount of $2,422.13. The check from the Robertsons to Thomas L. Robbins was returned because Thomas L. Robbins had already made a conveyance to his wife, Ruth Buckley Robbins. Dombroski testified that his purchase price was set at $2,400 because that was what Robertson owed on his outstanding debt to Whitfield's heirs.

Finally, Jewell Robbins Oglesbee quitclaimed her interest back to the Robertsons on September 26, 1983, which deed was placed of record on September 29, 1983.

A chain of title, diagraming these transactions, is attached as Appendix A. The Robertsons also claimed title to the land by adverse possession. While portions of the testimony are disputed, it is undisputed that Oscar Harold Robertson had kept and grazed cattle on the land in question since 1957. Toby Dombroski was aware of this fact. Dombroski admitted that all portions of the property which he had visited had been fenced, a pond was on the property, and that grass had been planted on the pastures. Further, Dombroski admitted he had checked the land records to see if Robertson owned the property because he had heard that Whitfield had conveyed the land to Robertson. Finally, Dombroski admitted that he had not paid taxes on the property every year since the conveyance in his favor, because, as he put it, "Each time I had gone to the Courthouse, and the taxes had already been paid on it." From the time Dombroski received his deed in 1984, until the trial date of January 15, 1993, Dombroski had paid taxes only two or three times, probably in 1985 and again in 1991.

Robertson testified that he: (1) cleared the land and planted grass on it; (2) grazed cattle on the land; (3) repaired damage to the property caused by Hurricane Camille; (4) built a fish pond on the property upon acquiring it and repaired it when the dam broke; (5) paid taxes since 1972, except for the years 1984 and approximately 1991; (6) frequently visited and made other improvements to the property.

Clifford Simmons, owner of neighboring property since 1936, stated that he often saw Robertson coming and going on the property and using the property by grazing cattle on the pastures, planting and harvesting hay and bushhogging it. He testified that he had not seen other people on the property, though he did not say that he "positively knew" that other people had not been on it.

LAW

I.

Whether the Robertsons' possession under an unrecorded deed was sufficient to give notice, or whether Dombroski was a bona fide purchaser for value without notice.

The chancellor in this case held that the Robertsons' failure to record their deed until after the death of Whitfield, and the vesting of title in her heirs, as well as the conveyance and recordation of a deed passing title from Thomas L. Robbins to Ruth Buckley Robbins, took the Robertsons out of the chain of title and rendered their deed null and void as to subsequent purchasers for value. As a general rule, the recording system would protect any subsequent purchaser for value without notice from the Robertsons' claim.

A conveyance which acknowledges payment or receipt of valuable consideration is prima facie evidence that the grantee therein was a bona fide purchaser for a valuable consideration without notice. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384 (1933); Burks v. Moody, 141 Miss. 370, 106 So. 528, suggestion of error overruled, 141 Miss. 370, 107 So. 279 (1926); Atkinson v. Greaves, 70 Miss. 42, 45, 11 So. 688 (1892); Hiller v. Jones, 66 Miss. 636, 6 So. 465 (1889); see, Mills v. Damson Oil Corp., 686 F.2d 1096, 1101-02 (5th Cir.1982). The quitclaim deed from Thomas L. Robbins to Ruth Buckley Robbins states:

FOR AND IN CONSIDERATION of the sum of TEN ($10.00) DOLLARS, cash in hand paid in hand and other good and valuable consideration, the receipt and sufficiency of all which is hereby acknowledged....

No evidence was adduced by the Robertsons at trial which attacked the consideration given by Ruth Buckley Robbins, nor was any evidence adduced to show she had actual knowledge of the Robertsons' outstanding claim. Without such evidence, this Court must conclude that Ruth Buckley Robbins was a bona fide purchaser for value without notice.

Having found that Ruth Buckley Robbins is a bona fide purchaser for value without notice, we proceed to the second principle. Where a subsequent purchaser takes title from a prior bona fide purchaser for value without notice, then the subsequent purchaser is entitled to all the protections the recording system offered his grantor, unless the subsequent purchaser had previously held the property subject to the adverse claims. Southern Life Ins. Co. v. Pollard Appliance Co., 247 Miss. 211, 222-24, 150 So.2d 416, 420-22 (1963); Lay v. Nutt, 194 Miss. 83, 11 So.2d 430 (1943); Barksdale v. Learnard, 112 Miss. 861, 73 So. 736 (1917); Equitable Sureties Co. v. Sheppard, 78 Miss. 217, 28 So. 842 (1900); Price v. Martin, 46 Miss. 489 (1872); Fulton v. Woodman, 54 Miss. 158 (1876); Lusk v. McNamer, 24 Miss. (2 Cushm.) 58, 59 (1852). Thus, Dombroski, has all the rights of his predecessor in title, Ruth Buckley Robbins. The recording system protects Dombroski's record title despite either actual notice by way of the Robertsons' physical possession of the property at the time of the execution of his deed, or being on inquiry notice by the fact that the Robertsons' deed was recorded before the recordation of the final judgment closing Whitfield's estate.

If the facts of this case...