Opinion
No. 32727.
October 25, 1937.
1. LANDLORD AND TENANT.
A tenant who purchased interest of purchaser at tax sale made before beginning of tenancy could only assert claim of title against landlord after surrendering possession to landlord pursuant to rental contract.
2. PRINCIPAL AND AGENT.
Where sisters authorized brother to rent land, testimony of one sister, on interrogation as to who managed and controlled land, that she managed and controlled interest of the other sister "in a way," but had her brother "look after it down here for me," did not establish that brother was authorized to make statement inducing tenant to buy from tax purchaser, so as to estop such sister, who received deed of interest of the other sister, from objecting to tenant's setting up claim of title against her.
APPEAL from the circuit court of Webster county. HON.E.M. LIVINGSTON, Special Judge.
Cowles Horton, of Grenada, for appellant.
We submit, at the outset, whether appellee is not estopped from seeking to defeat appellant's possession of the property, having, to the extent shown by the statement of facts, induced appellant to make his purchase. In support of this view we call attention to the following authorities wherein the doctrine of estoppel has been applied or referred to.
10 R.C.L. 780; 21 C.J. 1154; Kelso v. Robinson, 172 Miss. 828; Staten v. Bryant, 55 Miss. 261; Dayhood v. Neely, 135 Miss. 14; Davie v. Butler, 128 Miss. 847; Crisler v. Whadley, 102 Miss. 755; Hafter v. Strange, 65 Miss. 323; Kelley v. Skates, 117 Miss. 900; Sively v. Williamson, 112 Miss. 276; Sulphine v. Dunbar, 55 Miss. 255; Day v. Railway Co., 69 Miss. 589.
Appellant was a tenant of the land and his relation to the appellee was such that the statements made to appellant by her agent carried with them that weight which the relationship justified. This becomes particularly true when we consider that, if appellant had purchased without appellee's consent, appellee would have probably claimed that the purchase inured to her benefit, as landlord.
This action under the law is purely possessory and analogous to replevin for personal property. In such action a plaintiff becomes entitled to a judgment that he "recover possession of the land."
Section 3467, Code of 1930.
While title is not involved, the court may, and in proper cases should, examine the title in order to correctly determine whether the plaintiff is or is not entitled to a judgment for the possession of the land.
26 C.J. 859, sec. 126; Murf v. Maupin, 113 Miss. 670; McCallum v. Gavin, 149 Miss. 885.
In this suit, appellee maintains that she is entitled to the possession of this property and to displace appellant from the property. Ignoring at this point the validity or rightfulness of appellant's claims, we submit that appellee must recover solely and alone upon the establishment of her own right to possession, failing in which she may not prevail. This rule is aptly applied in the following authorities, wherein the respective defendants in those cases may have been without any right of possession at all.
Clymer v. Powell, 56 Miss. 672; Hammel v. Atkinson, 82 Miss. 465.
Appellee was the owner of this land. She failed to pay the taxes for the year 1930 and on June 1, 1931, the land was sold for taxes to the Corinth Bank. Under the laws and constitution of this state appellee had two, but only two, years within which to redeem. During that time the tax purchaser's title was inchoate and incomplete, nevertheless it was "a perfect title to the land sold for taxes, but without the right of possession and subject to the right of redemption."
Section 3256, Code of 1930; Pool v. Ellis, 64 Miss. 555; Murphy v. Seward, 145 Miss. 727.
Appellee failed, however, to redeem the property and thereupon by virtue of the sale and the expiration of the redemption period, she lost not only her right of possession but her title as well.
Greene v. Williams, 58 Miss. 752.
Keeping in mind that, subject to the right of redemption, the title passed at the sale itself (Eureka Lbr. Co. v. Terrell, 48 So. 628), it becomes clear, we think, that appellee lost her right of possession to the land finally and completely just as soon as the period of redemption expired.
No duty is devolved by the law upon the tax purchaser to keep up subsequent taxes as a condition to the validity of his own tax title.
Murphy v. Seward, 145 Miss. 713.
If appellee owns the land, the redemption from the sale to the state inured to her benefit; if appellee ceased to be the "real owner" by virtue of the first tax sale and her failure to redeem therefrom, then certainly she was not the "real owner" at the time of the redemption from the later sale to the State. This, we submit, is bound to be true on a proper consideration of the facts.
Jamison v. Thompson, 65 Miss. 516; Greene v. Williams, 58 Miss. 752.
Appellee claims that appellant acquired no title to the property by his purchase from the Bank of Corinth on the ground, as we understand, that the Bank did not receive a deed to the land as provided by Section 3273 of the Code. We submit, however, that the counsel overlooks the fact that appellant is merely defending a suit wherein appellee must recover, if at all, upon the strength of her own right of possession and not on the weakness of that of the appellant.
Appellee claims also that if appellant did acquire such title by his purchase from the Bank "it inured to the benefit of the appellee, his landlord." We frankly concede that under the old English rule and in some of the states now counsel's position would be correct, but the weight of authority and decisions of our own court do not support that position.
35 C.J. 1246, sec. 602; 16 R.C.L. 668, sec. 155; Lyebrook v. Hall, 73 Miss. 509; Walker v. Harrison, 75 Miss. 665.
In its memorandum, the court calls for discussion of the question whether appellant's duty was "to restore possession of the land to her before attempting to assert any title he may have acquired adverse to her before surrendering possession of the land." Under the feudal system and in some jurisdictions now, before the tenant may set up an adverse title against his landlord he is required to surrender up the possession which he acquired under his tenancy so as to put the landlord in the vantage place of a defendant in possession. However, the present authorities on the subject are divided and in many jurisdictions actual surrender is not required.
35 C.J. 1352-3, secs. 616, 617; 16 R.C.L. 658, sec. 144.
We do not find, nor does counsel produce, a decision of the question in our own court. In numbers of cases wherein the point was not presented for decision there is dicta which would appear to support appellee's claim. Nevertheless this court has distinctly held in at least three decisions that the tenant may set up an adverse title against his landlord without surrender of possession provided the landlord has knowledge of the tenant's adverse claim.
Holman v. Bonner, 63 Miss. 131; Land Co. v. Ball, 68 Miss. 135; Greenwood v. Moore, 79 Miss. 201.
After appellant's acquisition of the tax title, his possession of the premises was in his own right and not in virtue of his tenancy.
T.W. Scott, of Eupora, for appellant.
Appellee must stand on the strength of her title and consequent right to the possession of this land or fail in this law suit, and unless she has been able to show title in herself then she has no right to recover possession of this land.
There is no question but that she had a perfect title to this land until she failed to pay the taxes of 1930 thereon and the land was sold for these taxes on June 1, 1931, and the filing by the tax collector of the list of lands sold to individuals thereafter, at which time this title was, by virtue of the provisions of Section 3256, Code of 1930, divested out of the appellee and invested in the Corinth State Bank, the purchaser at said sale.
After that time, under the provisions of said Section 3256, Code of 1930, she had the right to possession of said land until the 2nd day of June, 1933, and also the right to redeem said land from said sale, and the subsequent sale of the same made to the State of Mississippi in June, 1932, for the taxes of 1931, when she lost, by virtue of the time of the redemption from said sale of said land for the taxes of 1930, having expired, all right, title and interest that she had in said land.
During the trial of this cause, appellee testified that her brother, Mr. Edgar Sealey, was her duly authorized agent in the handling of this property and that he had full authority to represent her and to act for her in connection with said property, and the appellant testified, and his testimony was not denied, that before he made any attempt to purchase the title to this land from the Corinth State Bank, the purchaser at the sale for the 1930 taxes, in whom we contend this title had ripened by virtue of that sale, he went to Mr. Sealey, the agent of the appellee, and made known to him his intentions in the matter of the purchase of this land, and told him that he would not make the purchase if his sister, the appellee, objected or desired to make any effort to redeem or repurchase the land, and that he was told by Mr. Sealey, the agent, to go ahead and buy the land if he desired to do so, that his sister, the appellee, was not going to make any effort to keep it.
It appears to me that under the rule announced in the case of Kelso v. Robinson, 172 Miss. 828, 161 So. 135, and the long list of cases cited therein, that the doctrine of estoppel should apply in this case; that after her agent had encouraged the appellant to invest his money in this land, she should now be estopped from asserting title to the same.
We concede that when a tenant goes into possession of land under a rental contract that he is estopped to deny the title of his landlord without surrendering the possession of the land, unless there are conditions and circumstances that make it an exception to this general rule, but we contend that there are conditions and circumstances connected with this case that make it an exception to this general rule.
We think that these circumstances are that the title of the appellee to this land was limited at the time of the making of this rental contract by the fact that, at that time, the land had already been sold for the taxes of 1930 in June 1931, almost a year before the rental contract was made, and under the authority in Section 615 of Volume 35 Cyc., under the title, Landlord and Tenant, cited by the counsel for the appellee, this general rule only precludes the tenant from contesting the validity of the title of his landlord as it existed at the time of the making of the rental contract and possession was given, and by showing that the right which the landlord then had was limited in its nature and has since expired or been defeated, he may set up a claim in his own right, provided the repudiation of the tenancy and the adverse claim was made known to the landlord.
The record discloses that before the appellant made any effort to buy the outstanding tax title that had matured in the Corinth State Bank from the sale for the taxes of 1930 in 1931, he went to the duly authorized agent of the appellant and informed him of his intention, and was told by this agent to go ahead and either rent or buy the land if he so desired, that they were not going to pay any more taxes on it, and that the title would mature in the State in a short time.
In this case, the appellant was not in possession of the land under a rental contract at the time of its sale for taxes and, therefore, after giving notice to the landlord as he did, had a clear right to buy this tax title and assert it against her without first surrendering the possession.
The appellant unquestionably owns the title of the Corinth State Bank and that this title is good appears to be fully settled by the case of Murphy v. Seward, 110 So. 790.
I submit that the general rule of the estoppel of the tenant to deny the title of his landlord does not apply in this case and that it should be reversed and judgment entered in this court for the appellant.
S.E. Turner, of Carrollton, for appellee.
The facts show and it is admitted by counsel for appellant that appellee had a perfect title to the land in question until she failed to pay the taxes of 1930 thereon, and that the land was sold for these taxes on June 1, 1931, and the filing by the tax collector of the list of lands sold to individuals thereafter vested title in the Corinth State Bank, the purchaser at the tax sale, as provided in Section 3256 of Mississippi Code of 1930, and since the burden of proof rests upon the appellant in this cause, we contend that she has failed to prove her title by failure to introduce said tax list of lands sold to individuals.
For authority as to who can purchase land at tax sale, we cite the following authorities as bearing on the subject in this case.
35 Cyc. 1246, par. 602; Lyebrook v. Hallison, 19 So. 348, 73 Miss. 509; Walker v. Harrison, 25 So. 392, 75 Miss. 665; Bailey v. Campbell, 2 So. 645.
This is a suit for unlawful entry and detainer as provided for in Chapter 69 of the Mississippi Code of 1930, or for the possession of the land described in the declaration filed in said cause, and under the law, title deeds are admissible only for the purpose of showing who is entitled to the possession, but not for the purpose of proving title as shown in the following cases.
Murf v. Maupin, 75 So. 614, 113 Miss. 670; McCallum v. Gavin, 116 So. 94, 149 Miss. 885.
Forcible entry and detainer is a mere possessory action and not proper for trying titles.
Loreing v. Willis, 4 How. (5 Miss.) 383; Lobdell v. Mason, 15 So. 44, 71 Miss. 937; Cummings v. Kilpatrick, 25 Miss. 106; Clark v. Burgeois, 38 So. 187, 86 Miss. 1; McCallum v. Gavin, 116 So. 95, 149 Miss. 885.
The statement of facts as testified to by appellant, coupled with the statements made by appellee as a witness, does not justify the doctrine of estoppel.
Staten v. Bryant, 55 Miss. 261.
The doctrine of equitable estoppel is founded on the principle that he who seeks equity must do equity.
Berrier v. Kelly, 33 So. 974, 82 Miss. 233; Lake v. Perry, 49 So. 569, 95 Miss. 550.
Estoppel operates only in favor of one who, in reliance upon the act, representation, or silence of another, so changes his situation that injury would result if the truth were shown.
Davis v. Butler, 91 So. 279, 128 Miss. 847; Canal Com. Trust Sav. Bk. v. Brewer, 104 So. 424, 143 Miss. 146; Eagle Lbr. Co. v. Dewees, 135 So. 490, 163 Miss. 102; Day v. McCandless, 142 So. 486, 167 Miss. 832; Plant Flour Mills Co. v. Sanders Ellis, 157 So. 713, 176 Miss. 539.
Subject to certain exceptions and qualifications, no rule is better settled by the decisions than the general one that a tenant in undisturbed possession of the demised premises is estopped to deny the title of his landlord, as such title of the landlord existed in him at the time of the creation or the inception of the tenancy, before surrender of possession to the landlord.
Hawkins v. James, 69 Miss. 274, 13 So. 813; Love v. Law, 57 Miss. 596; Brown v. Issaquena County, 54 Miss. 230; Frazer v. Robinson, 42 Miss. 121; Richardson v. Borden, 42 Miss. 41; Griffin v. Sheffield, 38 Miss. 259; Deniston v. Potts, 26 Miss. 13; Cummings v. Kilpatrick, 23 Miss. 106; Stier v. Surget, 18 Miss. 154.
The estoppel to deny title applies not only to tenancies for a definite term of years, but also to a tenancy by sufferance or at will, or a tenancy created by a tenant holding over after his lease has expired.
Ezelle v. Parker, 41 Miss. 520; Griffin v. Sheffield, 38 Miss. 329; Wilson v. Peacock, 111 Miss. 116, 71 So. 296; 35 C.J., sections 467, 575, 579e, and 587(2); Rives v. Nesmith, 64 Miss. 807, 2 So. 174.
The possession of a tenant is consistent with the title of the landlord and therefore not adverse to him, and so long as the relation exists and is recognized between them, a tenant cannot dispute his landlord's title.
35 C.J., sec. 614.
In general, in order to initiate an adverse possession by the tenant, there must be a surrender of the premises to the landlord or an actual, open and notorious disclaimer of the landlord's title brought to his knowledge, or actual disseizin or ouster of the landlord.
35 C.J., sec. 615; Greenwood v. Moore, 79 Miss. 201, 30 So. 609; Jones v. Madison County, 72 Miss. 777, 18 So. 87; Meridian Land Co. v. Ball, 68 Miss. 135, 8 So. 316; Brown v. Issaquena County, 54 Miss. 230; Holman v. Bonner, 63 Miss. 131.
Before a tenant can claim title against his landlord, he must first as a tenant restore possession of the land to the landlord before attempting to assert any title he may have acquired adverse to the landlord before surrendering possession of the land.
35 C.J., Landlord and Tenant.
Under the facts and the law, we submit that the judgment of the lower court should be affirmed.
On December 2, 1935, the appellee instituted an unlawful entry and detainer proceeding against the appellant for the recovery of the possession of land alleged to be unlawfully withheld from her by the appellant. The case reached the court below on appeal thereto, where it was tried by agreement by the judge without a jury, resulting in a judgment awarding the possession of the land to the appellee.
The record presents several very interesting questions, but the answer we have to make to one lying at the threshold thereof renders it unnecessary to consider the others.
The land came into the ownership of the appellee and a sister of hers, under the will of their father, in January, 1933. It was rented to the appellant for the year 1934 under an oral contract therefor. At the end of the year the appellant failed to surrender possession of the land and refuses so to do. On November 26, 1935, the appellee received a deed from her sister to her interest in the land.
The appellant's claim to the right to continue in possession of the land is founded on a sale of the land for taxes to the Corinth State Bank in 1931, and the purchase thereof by him from the bank; and he says that, because of the fact that the sale for taxes was made before the beginning of his tenancy, he had the right to purchase the land from the purchaser at the tax sale and to assert the title thereby acquired against his landlord. This may be true, but he is without the right so to do until he has surrendered possession of the land to his landlord, pursuant to his rental contract therefor. When he has done this he may assert any title he has to the land under his tax sale purchase in a proper proceeding therefor. 2 McAdam on Landlord and Tenant (5 Ed.), 1477; 35 C.J. 1239; Rives v. Nesmith, 64 Miss. 807, 2 So. 174; Love v. Law, 57 Miss. 596; Griffin v. Sheffield, 38 Miss. 359, at page 390, 77 Am. Dec. 646; Wolf v. Johnson, 30 Miss. 513. Cf. Rhyne v. Guevara, 67 Miss. 139, 6 So. 736. But the appellant says that the appellee consented to his purchase of this outstanding title and is therefore estopped from objecting to his here setting it up against her. The facts on which this contention is based are: The land was rented to the appellant by Sealey, a brother of the appellee, acting for and in her behalf. Before the appellant purchased the land from the Corinth State Bank he had a conversation with Sealey in which Sealey told him "to go ahead and buy it or rent it, said it was going back to the state; that they wasn't going to pay any more taxes on it." The statement that it was going back to the state evidently refers to the fact that after the purchase of the land by the Corinth State Bank it was again sold to the state for taxes, from which the appellant redeemed the land after his purchase from the Corinth State Bank.
We will assume, but merely for the purpose of the argument, that, if Sealey was authorized by the appellee to make this statement, it would here estop her from complaining of the assertion by the appellant of the title, if any, acquired by him under his purchase of the land from the Corinth State Bank; the contention cannot prevail here for the evidence does not disclose that Sealey was authorized to make the statement. There is no evidence that he was expressly authorized by the appellee to make it, and the only evidence of the scope of his agency for her is that in answer to the question, "who had been managing and controlling it," the appellee replied: "I had in a way — I mean her interest (referring to her sister's interest), but I had my brother (meaning Sealey) look after it down here for me." This is insufficient to disclose that Sealey was in any way authorized to deal with her title to the land or surrender any rights she had thereunder.
Affirmed.