Stevens v. Magee

• Decision Date: 15 December 1902
• Court: Mississippi Supreme Court
• Parties: BERTA STEVENS v. WILLIAM J. MAGEE

33 So. 73

81 Miss. 644

BERTA STEVENS v. WILLIAM J. MAGEE

Supreme Court of Mississippi

December 15, 1902

October 1902

FROM the chancery court of, first district, Hinds county HON HENRY C. CONN, Chancellor.

Stevens appellant, was complainant in the court below; Magee appellee, was defendant there. From a decree denying complainant relief she appealed to the supreme court. The facts are fully stated in the opinion of the court.

Affirmed.

Brame & Brame, for appellant.

It is a universal rule that the actual possession of property under a deed or claim of title is notice to the world of the rights of the possessor, and it is wholly immaterial whether any particular individual has actual knowledge of the fact of such possession. The possession itself, if open and under claim of right, is notice to the world, and is better notice than any mere record which furnishes only constructive notice.

Under the facts the following propositions are not and cannot be disputed:

1. That complainant, in good faith, bought and paid for this property and received a deed therefor June 29, 1901.

2. That under this deed, at the time of her purchase, she went into the actual possession of the property and began the collection of rents and making of improvements thereon.

3. That this possession was open, visible and continuous under claim of title.

From this the irresistible conclusion is that the defendant, who at that time did not even have a judgment against the original owner, was charged with notice arising from the facts stated. Counsel for defendant relies entirely upon the case of Loughridge v. Bowland, 52 Miss. 546, or rather upon the loose and inaccurate language of the judge who delivered the opinion of the court in that case. At the outset we call the attention of the court to the fact that the court says in that case that "nothing more occurred than technical attornment of tenants." Assuming the decision to be sound, a consideration of the facts of this case shows how utterly dissimilar it is to the facts of that case. Whereas, there, nothing more occurred than technical attornment of the tenants, in this case the purchaser took actual and open possession and made improvements, put in waterworks and paid the water rates, and obtained permission from other adjoining owners to cut away the limbs of an overhanging tree, and long before the recovery of defendant's judgment there was a change in the tenants themselves, and entirely new tenants (Tom Sykes) going in and paying rent before any of the defendant's rights accrued.

It has universally been held that possession of property by the grantee is equivalent to notice. Dixon v, Lacoste, 1 Smed. & M., 70; Halls v. Thompson, Ib., 443; Wilty v. Hightower, 6 Smed. & M., 345; Walker v. Gilbert, 7 Smed. & M., 456; Humphries v. Bartee, 10 Smed. & M., 282; Jones v. Loggins, 37 Miss. 546; Perkins v. Swank, 43 Miss. 349; Stovall v. Judah, 74 Miss. 747.

It is a universal rule that the possession of a tenant is the possession of the owner. Heirmann v. Stricklin, 60 Miss. 234; Fultz v. Peterson, 78 Miss. 128, 132.

"It has been settled by numerous cases in this state, commencing with Dixon v. Lacoste, 1 Smed. & M., 70, that the open possession and occupancy of land by the vendee is implied notice of his rights." Strickland v. Kirk, 51 Miss, , 795; Perkins et al. v. Swank et al. 43 Miss. 349; Bell v. Flaherty, 45 Miss, 694.

"We are cited to Hiller v. Jones, 66 Miss. 636, but that case holds that possession of land under an unrecorded deed was the equivalent of registration of the deed while the possession lasted under it, but that where the record shows a per-feet chain of title the purchaser need not look to a former occupancy of the land under a deed of which such party had no notice. In this case the contention is that Stovall occupied the land all the time from his purchase up to the bringing of this suit. Wherefore, by the rule above laid down, Stovall's possession was equivalent to registration of the deed all the time." 74 Miss. 756.

In Levy v. Holberg, 67 Miss. 527, it was held that possession of land to be notice of the unrecorded title of the owner need not be by his personal occupancy, and that possession by his tenants will be as effectual. In that case counsel for appellant made the same argument that is made for the appellee in this case. In his brief he stated: "The change of possession must be such that a stranger could observe it, and the facts must be such as to arrest notice, or put a creditor or purchaser on inquiry." Wade on Notice, secs. 288, 289. But the court repudiated this doctrine, and in its opinion used the following language: "The possession of an owner holding under an unrecorded deed suggests to the would-be purchaser inquiry into the circumstances of such holding without record title, and puts him upon search as to the real state of the title."

Williamson, Wells & Croom, for appellee.

In the case of Loughridge & Bogan v. Bowland, 52 Miss. 546, this court held that, if possession had been openly taken and held, or if there had been a change of occupants, so as to have arrested notice and attention, the principle laid down in Dixon v. Lacoste, 1 Smed. & M., 70, might have been invoked; but the court also decided as follows: "But that possession may have the effect of protecting the title under which it is held, it must be of that character which would arrest attention. The ceremony of livery of seizin was performed openly, in the presence of the freeholders, for the purpose of attesting the act. Registration was adopted as a substitute, for the purpose of conclusively imparting notice. . . . . Whenever it is sought to establish notice inferentially, the facts ought to be emphatic and distinct."

After the sale by Stockton to Stevens, June 26, 1901, there was no change in the occupancy of the land. At the time of the sale Kate E. Stockton was in possession by her tenants....