Opinion
No. 41913.
June 12, 1961.
1. Wills — notice — facts putting party on inquiry.
Where complainants knew that their grandfather was dead, each of them was charged with constructive notice of whether or not he had left a will.
2. Trusts — purchase by alleged fiduciary at trustee's sale — estoppel — adverse possession.
In suit by grandchildren claiming title to land involved under will of decedent and assailing rights of defendants to purchase at a trustee sale, where youngest of children became of age in 1925 and proof showed adverse possession for 40 years, complainants ratified purchase by the purchasers at the trustee's sale and were now estopped from attacking the sale.
Headnotes as approved by Jones, J.
APPEAL from the Chancery Court of Panola County; KERMIT R. COFER, Chancellor.
Lomax B. Lamb, Jr., Marks, for appellants Mrs. Lula H. Lamb, John S. Lamb, Joe W. Lamb, and Mrs. Dorothy L. Hughes.
I. The Court erred in failing to carry out the clearly expressed intention of the testator S.L. Herring with respect to his devise of the Anna Johnson tract. Ball v. Phelan, 94 Miss. 293, 49 So. 956, 23 L.R.A. (N.S.) 895; Milton v. Milton, 193 Miss. 563, 10 So.2d 175; Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Secs. 1738, 1743, 1771, 1773, Hemingway's Code 1917; Secs. 566, 571, 587, 605, Code 1942.
II. The Court erred in finding that the children of Mrs. Lula H. Lamb, though remaindermen without a present right of possession, have lost all interest in the Anna Johnson tract. Millsaps v. Shotwell, 76 Miss. 923, 25 So. 359; Shipp v. McKee, 80 Miss. 741, 31 So. 197, 32 So. 281, 92 Am. St. Rep. 616.
III. The Court erred in holding that the 1919 purchase of the AJ tract by J.L. Herring and E.B. Lamb failed to enure to the benefit of the devisees under the S.L. Herring will with respect to S.L. Herring's interest in the tract. Croft v. Alder, 237 Miss. 713, 115 So.2d 683; Griggs v. Griggs, 218 Miss. 433, 67 So.2d 450; Ham v. Ham, 146 Miss. 161, 110 So. 583.
IV. The lower court erred in holding that appellants have lost their rights in the AP tract by ouster, notice, adverse possession, the running of the statute of limitations or laches. Bailey v. Sayle, 206 Miss. 757, 40 So.2d 618; Comans v. Tapley, 101 Miss. 203, 57 So. 567, Anno. Cas. 1914B 3074; Hurst v. J.M. Griffin Sons, Inc., 209 Miss. 381, 46 So.2d 440, 47 So.2d 811; Nichols v. Gaddis McLaurin, Inc., 222 Miss. 207, 75 So.2d 625; Thomasson v. Kinard, 153 Miss. 398, 121 So. 109; Wilder v. Currie, 231 Miss. 461, 95 So.2d 563, 97 So.2d 384.
V. The Court erred in failing to give effect to warranty, express or implied, of partition deed and in allowing successors in title to J.L. Herring to oppress devisees of S.L. Herring with respect to S.L. Herring interest in the AJ tract. Williams v. Gray, 3 Maine 207, 14 Am. Dec. 234; 14 Am. Jur., Cotenancy, Secs. 50, 52.
E.C. Black, Marks, for appellants Edward Lindsey Lamb, Joe Lois Lamb, and Mrs. Pattie Love Trotter.
I. The decree of the lower court is against the weight of the law and the evidence.
II. The Court erred in admitting the deed from J.L. Herring, et ux to Warren Herron and the deed to W. Fredrick Meyers and the testimony in reference to the use and occupancy of said property.
III. The Court erred in holding that J.L. Herring and E.B. Lamb purchased at the foreclosure sale for their own use and benefit and not for the use and the benefit of themselves and their cotenants.
IV. The Court erred in holding that the purported partition deed was valid and the north 100 acres of the Johnson land was acquired by S.L. Herring thereunder and that thereby the relationship of tenants in common was dissolved.
V. The Court erred in holding that the ten (10) years' statute or any other statute was set in motion by the execution of the purported partition deed.
VI. The Court erred in holding that appellants were required to prove the non-delivery of the purported partition deed.
VII. The Court erred in holding that no confidential relationship existed between S.L. Herring and J.L. Herring.
VIII. The Court erred in holding that there was no confidential relationship between J.L. Herring and Joe Lois Lamb, Edward Lindsey Lamb and Pattie Love Trotter, who were his nieces and nephews, and devisees, under the will of S.L. Herring in which J.L. Herring was appointed and acted as executor.
IX. The Court erred in holding that J.L. Herring and E.B. Lamb were in full and complete charge of the land, occupying it as their land from the date of the foreclosure until E.B. Lamb sold to J.L. Herring in 1922 and that after E.B. Lamb conveyed J.L. Herring, he was in full and complete charge of the land occupying it as his own.
X. The Court erred in holding that the statutes of limitations ran against these appellants notwithstanding the estate of S.L. Herring was never closed.
XI. The Court erred in holding that the acts of the appellees herein and their predecessors in title constituted an ouster.
XII. The Court erred in holding that the claim of appellants herein were barred in any statute of limitation.
XIII. The Court erred in holding that these appellants were guilty of laches.
Collation of authorities: Alewine v. Pitcock, 209 Miss. 362, 47 So.2d 147; Anderson v. Boyd, 229 Miss. 596, 91 So.2d 537; Avera v. Turner Lumber Co., 230 Miss. 222, 92 So.2d 458; Bailey v. Sayle, 206 Miss. 757, 40 So.2d 618; Boyd v. Entrekin, 209 Miss. 51, 45 So.2d 848; Brown v. Alexander, 118 Miss. 848, 97 So. 842; Brown v. Henry Bros., 231 Miss. 729, 97 So.2d 642; Collette v. Long, 179 Miss. 65, 176 So. 528; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Cooper v. Cooper, 61 Miss. 676; Croft v. Alder, 237 Miss. 713, 115 So.2d 683; Dampier v. Polk, 214 Miss. 65, 58 So.2d 44; Denkman Lumber Co. v. Morgan, 219 Miss. 692, 69 So.2d 802; Edwards v. Hillier, 70 Miss. 803, 13 So. 692; Farmer v. Clarksdale Hosp., 213 Miss. 611, 57 So.2d 476; Fox v. Wilkins, 201 Miss. 78, 28 So.2d 577; Gaddis McLaurin, Inc. v. Nichols, 222 Miss. 207, 78 So.2d 471, 87 So.2d 673, 105 So.2d 459; Garner v. Garner, 117 Miss. 674, 78 So. 623; Ham v. Ham, 146 Miss. 161, 110 So. 583; Harris v. Byers, 112 Miss. 651, 73 So. 614; Hurst v. Griffin Sons, 209 Miss. 381, 46 So.2d 440; Jordan v. McKenzie, 30 Miss. 82; LaBlanc v. Bursby, 223 Miss. 415, 78 So.2d 456; Laster v. Ard (Miss.), 42 So.2d 737; Martin v. Partee, 121 Miss. 482, 83 So. 673; Mobile O.R. Co. v. Swain, 164 Miss. 825, 145 So. 627; Peebles v. Acker, 70 Miss. 356, 12 So. 248; Peeples v. Boykin, 132 Miss. 359, 96 So. 77; Roberts v. Roberts, 34 Miss. 322; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Spearman v. Hassey, 210 Miss. 851, 50 So.2d 610; Sutton v. Cannon, 135 Miss. 368, 100 So. 24; Swinney v. Cockrell, 86 Miss. 318, 38 So. 353; Taylor v. Chickasaw County, 70 Miss. 87, 12 So. 210; Vanzandt v. Vanzandt, 227 Miss. 133, 85 So.2d 792; Wilbourn v. Wilbourn, 204 Miss. 206, 37 So.2d 256; Wilder v. Currie, 231 Miss. 461, 95 So.2d 563, 97 So.2d 384; Wise v. Hyatt, 68 Miss. 714, 10 So. 37; Wren v. Gayden, 1 How. (2 Miss.) 365; Young v. Cook, 30 Miss. 320; Secs. 1738, 1743, 1771, 1773, Hemingway's Code 1917; Secs. 566, 571, 587, 605, 843, Code 1942; 24 C.J.S., Sec. 1972 p. 792; 30 C.J.S., Secs. 16, 128, 129 pp. 531, 551, 556; 31 C.J.S., Sec. 30 p. 209; 33 C.J.S., Sec. 147 p. 1105; 34 C.J.S., Executors Administrators, Sec. 733; 50 C.J.S., Secs. 782, 783 pp. 317, 318.
Dennis Baker, White Finch, Batesville; Barnett, Montgomery, McClintock Cunningham, Jackson, for appellees.
I. The appeal in this case constitutes an attempted appeal from an interlocutory decree without authority from the Court granting such appeal and was taken after the expiration of the time fixed in the statute for the taking of interlocutory appeals. Comans v. Tapley, 101 Miss. 219, 57 So. 567; Cook's Heirs v. Bay, How. (5 Miss.) 485; Craig v. Barber Bros. Contracting Co., 190 Miss. 182, 199 So. 270; Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901; Jones v. Cashin, 133 Miss. 585, 98 So. 89; McClanahan v. O'Donnell, 148 Miss. 178, 114 So. 336; Pennyan v. Alexander, 226 Miss. 419, 84 So.2d 691; Rees v. Rees, 188 Miss. 256, 194 So. 750; Repsher v. Bostic Lumber Mfg. Co., 113 Miss. 46, 73 So. 868; Sample v. Romine, 193 Miss. 706, 10 So.2d 346; Smith v. Atkinson, 193 Miss. 554, 10 So.2d 379; State ex rel. Brown v. Poplarville, 119 Miss. 432, 81 So. 124; Steele v. Shirley, 9 Sm. M. (17 Miss.) 382; Turner v. Simmons, 99 Miss. 28, 54 So. 658; Worley v. Pappas, 161 Miss. 330, 135 So. 348.
II. S.L. Herring died owning the north 100 acres of the Johnson tract subject to the deed of trust securing the unpaid indebtedness thereon, but out of possession of the 100 acres, same being adversely occupied by J.L. Herring and E.B. Lamb in contradiction of his title.
A. A conveyance of "all our undivided interest" purported to convey and only convey such interest as J.L. Herring, E.B. Lamb and F.A. Lamb had in such lands and the covenant of warranty is restricted to such interest. Howell v. Ott, 182 Miss. 252, 180 So. 52; Howard v. Wactor (Miss.), 41 So.2d 259.
B. The relation of tenancy in common between S.L. Herring, E.B. Lamb, F.A. Lamb and J.L. Herring was terminated by the partition deed, and S.L. Herring thereafter held the title to the 100 acres in severality.
C. The record shows there was a delivery of the partition deed. Archer v. Helm, 70 Miss. 874, 12 So. 702; Austin Clothing Co. v. Posey, 105 Miss. 720, 63 So. 244, 64 So. 5; Bullock v. Green, 224 Miss. 278, 80 So.2d 37; Jones v. Jones, 227 Miss. 1, 85 So.2d 580; Lang v. Jones, 224 Miss. 619, 80 So.2d 783; Wilbourne v. Wilbourne, 204 Miss. 216, 37 So.2d 775.
D. The delivery of the partition deed severed the relation of tenancy in common between S.L. Herring and the other co-tenants. Copeland v. West, 202 Miss. 106, 30 So.2d 610.
E. The delivery of the partition deed operated as an ouster of S.L. Herring as a tenant in common of the remaining portions of the Johnson tract. Moore v. Rotenberry, 188 Miss. 882, 196 So. 758.
F. When the partition deed to the 100 acres was placed of record, J.L. Herring, E.B. Lamb and F.A. Lamb remained in possession to the exclusion of S.L. Herring, and the statute of limitations growing out of their adverse possesison of the 100 acres began to run on delivery of the partition deed and exclusion from possession and did not cease to run on his death but continued to run and ripened into title on May 28, 1927. Batson v. Smith, 211 Miss. 428, 51 So.2d 749; Cummins v. Dumas, 147 Miss. 215, 113 So. 332.
G. The grantee and his successors in title are estopped to deny the recital in the partition deed that the purpose was for partition and that there was a partition of the land. McSwain v. Griffin, 218 Miss. 517, 61 So.2d 749; Nixon's Heirs v. Carco's Heirs, 28 Miss. 414; Robbins v. McMillan, 26 Miss. 434; Stevenson's Heirs v. McReary, 12 Sm. M. (20 Miss.) 9.
III. The tenancy in common between S.L. Herring and his co-tenants was terminated by the partition deed of March 21, 1917, and J.L. Herring took the title thereunder to the 100 acres in severality, and F.A. Lamb, J.L. Herring and E.B. Lamb took title to the remainder of the Johnson lands in severality and all took subject to the lien of the deed of trust on all of the Johnson lands. Therefore, E.B. Lamb and J.L. Herring were not tenants in common with S.L. Herring and his devisees when they purchased at the foreclosure sale, but they purchased in their own right, hostile to the S.L. Herring claim of title. Alewine v. Pitcock, 209 Miss. 362, 47 So.2d 147; Avera v. Turner Lumber Co., 230 Miss. 123, 92 So.2d 458; Boyd v. Entrekin, 209 Miss. 51, 45 So.2d 848; Ferguson v. Chancellor, 206 Miss. 518, 40 So.2d 275.
IV. The one-fourth interest of F.A. Lamb in the lands passed to J.L. Herring and E.B. Lamb by adverse possession.
V. The will of S.L. Herring, in devising a one-eighth interest in the Johnson lands to Joe Lois Lamb, Edward Lindsey Lamb and Pattie Love Lamb, the children of F.A. Lamb, under Item 7 of his will, operated to devise to them only one-half of his one-fourth interest in the 100 acres subject to the lien of the deed of trust thereon, and when this deed of trust was foreclosed, all of their expectant title passed to the purchasers at the sale, E.B. Lamb and J.L. Herring. Arrington v. Masonite Corp., 213 Miss. 817, 58 So.2d 10; Comans v. Tapley, supra; Marks v. Toney, 196 Miss. 572, 18 So.2d 452; Mobile O.R. Co. v. Swain, 164 Miss. 825, 145 So. 627; Norris v. Burnett, 108 Miss. 407, 66 So. 332; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641; State v. Woodruff, 170 Miss. 744, 150 So. 760; Vanlandingham v. Meridian Creek Drainage Dist., 191 Miss. 345, 2 So.2d 591.
VI. Item 6 of the S.L. Herring will in devising his daughter, Lula Herring Lamb, a life estate in a one-eighth interest with remainder over to her children operated to devise to them only his interest in the 100 acres subject to the lien of the deed of trust thereon, and when this was foreclosed, their title was lost to the purchasers at said sale. Bullock, Admr. v. Sneed, 13 Sm. M. (21 Miss.) 293; Campbell v. Brown, 6 How. (7 Miss.) 230; Gidden v. Gidden, 176 Miss. 93, 167 So. 785; Gordon v. James, 86 Miss. 719, 39 So. 18; Root v. McFerrin, 37 Miss. 1.
This case involves an undivided one-fourth interest in certain lands in Panola County. In 1909, one Johnson conveyed approximately 400 acres of land to S.L. Herring, J.L. Herring, F.A. Lamb and E.B. Lamb. S.L. Herring was the father of J.L. Herring, and the two Lambs were his sons-in-law. On January 3, 1914, all of them executed a deed of trust on said lands securing an indebtedness of $4,000 due January 1, 1915. On May 20, 1915, S.L. Herring executed the will that will be hereinafter mentioned.
On March 21, 1917, F.A. and E.B. Lamb and J.L. Herring conveyed to S.L. Herring 100 acres on the north side of this tract, stating that it was "in consideration of $10 paid in order to effectuate a partition of lands owned by grantors and grantee." This was a warranty deed and conveyed "all our undivided interests in the land." It was filed for record March 28, 1917. S.L. Herring died December 20, 1917, and in his will he named J.L. Herring and E.B. Lamb as executors. The will was probated January 4, 1918, and an order entered directing letters testamentary to issue to the executors. Nothing further seems to have been done in the estate. On January 6, 1919, trustee in the deed of trust above mentioned foreclosed same and the land was purchased by J.L. Herring and E.B. Lamb.
On February 17, 1922, E.B. Lamb conveyed to J.L. Herring, reciting in the conveyance that he was conveying an undivided one-half interest. J.L. Herring died on August 16, 1942, leaving as his only heirs his widow and his daughter, Mrs. Virginia Herring Jones, and the widow died February 28, 1952. F.A. Lamb died August 7, 1933, and E.B. Lamb died August 8, 1938. This suit was filed September 17, 1959. In the will of S.L. Herring, all of his property was devised to his widow, Mrs. Patty Nichols Herring, for and during the term of her life. She died March 27, 1929.
The will devised, subject to this life estate, an undivided one-eighth interest in the Johnson lands to three grandchildren, towit: Joe Lois Lamb, Ed L. Lamb, and Patty Love Lamb, who were the children of a deceased daughter of S.L. Herring. It also devised to a daughter, Mrs. Lula Herring Lamb, an undivided one-eighth interest in said land for her lifetime and on her death to her three children, John, Dorothy and Joe W. Lamb. The grandchildren, Mrs. Lula Herring Lamb, and her children were the complainants in the court below, and Mrs. Virginia Herring Jones was the defendant. The complainants claim title under the will aforesaid and assail the right of J.L. Herring and E.B. Herring to purchase at the trustee sale. The facts showed that E.B. Lamb conveyed his interest in said land as above stated to J.L. Herring and that J.L. Herring paid him $2,000 for his one-half interest.
Immediately after the purchase by Herring and Lamb under the trustee sale, they borrowed $4500 and placed a deed of trust upon the land. The testimony showed and the chancellor found that Herring and Lamb were acting in good faith. There was no attempt to show fraud.
Soon after the purchase, a portion of the Johnson land was conveyed to one Meyer and a house erected thereon on the public road. Thereafter another part of the land facing on the road was sold to a third party and a house erected thereon. These third parties entered into poscession of the parts they had purchased.
The youngest of the three grandchildren above mentioned became of age in 1925. Soon after the death of their grandmother they took possession of other lands which had been devised to them by their grandfather. J.L. Herring paid rent to Mrs. Lula Herring Lamb on lands other than the Johnson place which had been devised to her and her children. As stated above, the record showed and the chancellor found that J.L. Herring, and after his death, his wife and daughter, and after his widow's death, his daughter, had been in actual possession of these lands for a period of 40 years. The chancellor held that such a possession had existed and that the proof "overwhelmingly" showed adverse possession for 40 years. He further held that the partition deed above mentioned terminated the co-tenancy existing between the parties and that the three grandchildren were barred by limitations. The chancellor also held that under the will the executors were required to do nothing about the lands devised to Mrs. Lula Herring Lamb and her children; that this land went directly to her as a life tenant and to her children as remaindermen.
He further held that the 100 acres of land given to S.L. Herring in partition did not come under the authority of the executors, and that at the foreclosure sale whatever interest the life tenant, Mrs. Lula Herring Lamb, had was acquired by J.L. Herring and E.B. Lamb, her husband, and that the title of her children as remaindermen passed at the sale to said purchasers, their uncle and father. Of course, the deed of trust was prior, and a valid sale under it would destroy the rights of the remaindermen. The court was of the opinion that the foreclosure conveyance deprived all of the complainants, including the remaindermen, of their interest, and that the interest of Mrs. Lula Herring Lamb had been lost by ouster and adverse possession. It was argued that no statute of limitations would run until the estate of the grandfather was closed, but the court held that since no part of the land was administered by the executors, it was his opinion that the statutes would not toll by the failure of the executors to procure a discharge. The chancellor dismissed the bill.'
At the time the suit was filed, every contemporary who might have thrown light upon the situation except Mrs. Lula Herring Lamb was dead, and she was of such age and physical condition that she could not testify, so there was not available to the court or to the defendant any evidence other than the record surrounding the trustee's sale, and the facts relative to use and possession.
(Hn 1) The youngest complainant involved became of age in 1936, 23 years before the suit was filed. At the time the suit was filed, J.L. Herring had been dead for 17 years. Some of the plaintiffs testified they knew they were to inherit some land from their grandfather and had known that for years. Of course, they knew their grandfather was dead, and each of them was charged with constructive notice of whether or not he had left a will. Howard v. Wactor, 41 So.2d 259. The will as recorded would have shown exactly what their grandfather willed. The fact that J.L. Herring and E.B. Lamb, after the purchase at the trustee's sale, had disposed of certain portions of said land, of which complainants were charged with notice by the possession of the purchasers, certainly should have apprised them in the exercise of any diligence of the fact that J.L. Herring was claiming the property personally. (Hn 2) If the property was purchased by Herring and Lamb in a fiduciary or trust capacity, such conveyance was voidable only and the plaintiffs were charged with the duty of disaffirming such action if they desired so to do within a reasonable time. 90 C.J.S., Sec. 303, page 476. This they utterly failed to do and after waiting for a period of 40 years after the sale and 23 years after the youngest became of age, the complainants are held to have ratified such purchase by Herring and Lamb and to be barred and estopped from now attacking same, it being impossible because of the lapse of time for the defendant to present to the court any evidence other than the record and facts as to possession by J.L. Herring. The case is therefore affirmed.
Affirmed.
Lee, P.J., and Kyle, Ethridge and Gillespie, JJ., concur.