Tinnin v. Brown

• Decision Date: 28 November 1910
• Docket Number: 14784
• Citation: 53 So. 780,98 Miss. 378
• Parties: A. L. TINNIN & J. B. TINNIN v. S. A. BROWN ET AL
• Court: Mississippi Supreme Court

53 So. 780

98 Miss. 378

A. L. TINNIN & J. B. TINNIN v. S. A. BROWN ET AL

No. 14784

Supreme Court of Mississippi

November 28, 1910

October, 1910

FROM the chancery court of Lauderdale county, HON. SAMUEL WHITMAN Chancellor.

This was a suit by S. A. Brown and others against A. L. Tinnin and J. B. Tinnin.

In the year 1865, F. M. Brown was the owner of the lands in controversy, and in the year 1878 he conveyed the land to his wife Charlotte M. Brown; she died in March, 1880 and F. M Brown married a second time. On January 20, 1887, F. M. Brown and his second wife, E. T. Brown, conveyed the lands in controversy to H. C. Smith & Company, who in turn conveyed the lands to appellants A. L. Tinnin and J. B. Tinnin. F. M Brown died in the year 1904.

S. A Brown et al., the appellees here, complainants in the court below, are the children of F. M. Brown and his first wife, Charlotte M. Brown. In their bill filed in this case it was alleged that the legal title to the lands in controversy was in their mother, Charlotte M. Brown, and that their father having conveyed the lands to their mother, Charlotte M. Brown, who died prior to the adoption of the Code of 1880, had only a life estate in the lands as tenant by courtesy, and that the life estate having expired, they had a fee simple title as heirs of their mother, Charlotte M. Brown.

At the trial it was shown that the appellants, A. L. Tinnin and J. B. Tinnin, claim title not only from F. M. Brown and his second wife, E. T. Brown, but through M. Lowenstein & Brother, who it appears purchased the land in 1876, through the auditor from the state; the land having been sold for taxes in the year 1875. On the 29th day of March, 1879, Lowenstein & Brother attempted to convey the title to the lands in controversy to T. C. Kinard by a conveyance, which reads as follows:

"M. Lowenstein & Bro. to T. C. Kinard. Quitclaim deed. Filed for record Jany. 14th, 1885, at 3 o'clock p. m. Recorded Jany. 14th, 1885. McRae Mosby, Clerk, by B. V. White, D. C.

"In consideration of two hundred and twenty-nine dollars, we convey to T. C. Kinard the land described as W. 1/2 of N.E. 1/4 and E. 1/2 of N.W. 1/4, Sec. 11, T. 7, R. 16 E., containing one hundred and sixty acres more or less. Witness our signatures the 29th day of March, 1879. M. Lowenstein & Bro.

State of Mississippi, Lauderdale county. Personally appeared before me, Wm. S. Patton, justice of the peace of said county, the above named M. Lowenstein & Bro., who acknowledged that they signed and delivered the foregoing deed on the day and year therein mentioned as their act and deed. Given under my hand this 14th day of Jany., A. D. 1885. Wm. S. Patton, J. P."

In the year 1885, T. C. Kinard conveyed the lands to F. M. Brown; in the year 1905, A. L. Tinnin and J. B. Tinnin, appellants here, respondents in the court below, obtained a conveyance of the lands in controversy by a quitclaim deed from the heirs of the members the firm of M. Lowenstein & Brother for consideration of one dollar. The following agreement was entered into by counsel on both sides, to-wit:

It is agreed that the title to the land in question is deraigned as follows:

United States to D. B. Richardson. D. B. Richardson to John F. Chester. Book A, page 195.

John F. Chester and wife to Wm. L. McDow. Book D, page 73.

W. L. McDow to Arthur Brown. Book 1, page 393.

Arthur Brown to F. M. Brown. Book K, page 542.

It is further agreed that each party claim from the common source F. M. Brown and defendants claiming further by adverse possession.

MCBEATH & MILLER,

For defendants.

W. W. LEWIS and F. V. BRAHAN,

Sols.

Filed 8th day of February, 1910.

W. R. PISTOLE, Clerk.

There was a decree in the court below in favor of the complainants, S. A. Brown et al., in so far as the title of the land was concerned, but the decree allowed to A. L. Tinnin and J. B. Tinnin, respondents in the court below, appellants here, the sum of five hundred and eighty-eight dollars and eighty-four cents, for improvements and decreed that this amount should be a lien upon the land; from this decree A. L. Tinnin and J. B. Tinnin prosecute this appeal and S. A. Brown et al., complainants in the court below, prosecute a cross appeal, denying that an allowance for improvements should have been made.

Decree reversed and cause remanded, decree on cross appeal affirmed.

Flowers, Fletcher & Whitfield, for appellants.

It is our contention, and we hope to show that Brown had no title which he could convey to his wife, but that appellants have the superior legal title and must prevail.

In order to get a start in tracing this title it is only necessary to go back to the year 1865, and to examine the deed on page 47 of the record in which this land was conveyed by deed of gift from Arthur and Mariah Brown to their son F. M. Brown. It is agreed between the parties here that F. M. Brown had the title by virtue of this conveyance, and that he is the common source of title. It is insisted by counsel for appellee that this agreement precludes appellant from setting up the title to which we shall presently refer, but we will consider the effect of the agreement a little later. Here we say that it is agreed all around that on December 29, 1865, F. M. Brown secured title to the land in controversy.

It would appear that no further conveyances were made affecting this property until August 10, 1876. On that date the state of Mississippi through its regular representative the auditor of public accounts conveyed this land to a partnership known as M. Lowenstein & Bro. This deed recites that the land was sold on May 17, 1875, to the state of Mississippi for taxes due, and that the same was sold to M. Lowenstein & Brother by virtue of the provisions of existing law. There seems to be no controversy here and no objection urged by counsel to the validity of this deed. It was held good by the lower court, and counsel in his brief does not assail it in any way. So that we may safely assume that this deed from the state conveyed a good title to M. Lowenstein & Brother. It is well settled in this state and elsewhere that a deed to real estate in the partnership name conveys a good title and vests the title in the members of the partnership. Schumpert v. Dillard et al., 55 Miss. 348.

So that here we have the legal title vesting in M. Lowenstein & Brother on August 10, 1876, some years before Brown conveyed to his wife, the date of which conveyance was January 5, 1878.

The question in this case therefore for the court to ascertain is what became of this legal title thus vested in Lowenstein & Brother. It is insisted that Brown obtained this title from one T. C. Kinard by his deed of May 20, 1885, and that Kinard obtained the title from M. Lowenstein & Brother, March 29, 1879. This would be a sound contention if the deed from Lowenstein & Brother was of any value. But most demonstrably it was not. The deed is signed by M. Lowenstein & Brother and purports to be acknowledged by M. Lowenstein & Brothers. It seems to be admitted by counsel for appellee that this acknowledgment is defective, but he argues that in spite of the defective acknowledgment the deed is good as between the parties. He cites in support of this contention the case of Saffold v. Horn, 72 Miss. 470. The case is sound enough, of course, but the very quotation set out by counsel in his brief answers his contention. That quotation embodied the statement that the doctrine therein announced has no application where "the rights of third persons growing out of the registry laws are involved." Now this is our situation precisely. We have rights growing out of the registry laws. For it is not pretended, and there is no proof to show or which tends to show that these people, the Tinnins, had any actual notice of the execution of this deed from Lowenstein to Kinard. They had not searched the record as they state over and over in their testimony. Now if the acknowledgment was faulty as counsel seems to concede, then it was not entitled to be recorded, and if recorded it was not constructive notice to anybody. Wasson v. Conner, 54 Miss. 351; Buntyn v. Compress Co., 63 Miss. 94.

Counsel has much to say in his brief to the effect that every person owning or buying land must be charged with notice of what is in his title deeds. This is true, but it does not follow that he must know about a deed outside the chain of his title of which he has neither actual nor constructive notice.

The reference in the testimony of the two Tinnins to having heard rumors of some trouble about the title all refer to rumors about the execution of the deed from Brown to his wife, and have no sort of reference to anything connected with this deed or alleged deed from Lowenstein & Brother to Kinard.

It is perfectly well settled that this acknowledgment was in fact no acknowledgment. It purports to be made by M. Lowenstein Brothers. This is not a person, but a partnership. One partner cannot acknowledge for a partnership unless he has authority to do so, and this authority must affirmatively appear. Authority to make and acknowledge a deed is not to be presumed. Shirley v. Fearne, 33 Miss. 653 (page 665 of opinion); Watson v. Tusten, 49 Miss. 569 (page 575 of opinion).

See also 1 Cyc., p. 88, where the requisites of a good acknowledgment on the part of one member of the firm are set out and explained, and where it is held that at least the certificate must show that the person making the acknowledgment was a member of the firm.

It has been squarely decided that a certificate reciting acknowledgment by the partnership without giving the name of the partner, or partners who made the acknowledgment is insufficient. Sloan v. Owens Mach. Co., 70 Mo. 206; Hughes v. Morris, ...