Opinion
No. 33535.
January 30, 1939. Suggestion of Error Overruled February 27, 1939.
1. ADVERSE POSSESSION.
Presumption existed that mortgagor's grantees held land subject to mortgage and not adversely to mortgagee in absence of contrary evidence.
2. ADVERSE POSSESSION.
Where owner of lots 5 and 6 executed a mortgage covering lot 5 and thereafter executed deeds covering lot 6 and a part of lot 5, the grantees' adverse possession did not begin, as against mortgagee, until after the foreclosure and purchase by mortgagee, since until that time grantees had right to possess and use land as their own.
3. REFORMATION OF INSTRUMENTS.
Evidence held not sufficiently clear and convincing to sustain decree reforming deeds of trust and trustee's deed on ground of mutual mistake regarding land included.
4. REFORMATION OF INSTRUMENTS.
To justify a decree reforming deeds of trust and trustee's deed on ground of mutual mistake regarding land included in deed, the evidence must show the mutual mistake beyond a reasonable doubt.
APPEAL from the chancery court of Quitman county; HON. R.E. JACKSON, Chancellor.
Cooper Thomas, of Indianola, for appellant.
Solemn written instruments, duly acknowledged, filed for record, which have continued for years and years, have been renewed from time to time and subsequently been foreclosed, will not be reformed more than twenty years after the original deed of trust was given, since the parties are estopped to set up such mistake, especially where they have known of the mistake for much more than ten years before any effort to reform.
We believe that every court in the land, including the United States Supreme Court, is committed to the substantial doctrine that no solemn written instrument will or should be reformed unless the evidence in support thereof shows the mistake beyond every reasonable doubt, or so clear and convincing as to leave no reasonable doubt that a mistake was made.
Norton v. Coley, 45 Miss. 125; Watson v. Owen, 107 So. 865, 142 Miss. 676; Progressive Bank v. McGehee, 107 So. 876, 142 Miss. 655; Rogers v. Clayton, 115 So. 106, 149 Miss. 47.
Alice W. Jamison and her successors in title waited all these years and never made any demand that any of the deeds of trust be corrected. Virginia O. Lamb and Verta Owens sat down all these years and never made any demand of Alice W. Jamison that their deed be corrected.
Sparta School v. Mendell, 138 Ind. 188, 37 N.E. 604; Popijoy v. Miller, 32 N.E. 713.
In 53 C.J., section 113 page 975, the doctrine is laid down that a man who can read and does not read an instrument which he signs or otherwise fails to exercise ordinary prudence is guilty of negligence which will bar his right to have the instrument reformed.
In 23 R.C.L., Reformation of Instruments, section 49, page 352, we find the doctrine laid down that delay under the general circumstances will deprive a party of the right of reformation by the lapse of time.
A party is estopped to seek reformation of an instrument if he has accepted benefits, or done such acts, or omitted to do acts whereby he shows that he must have known and understood the instrument as written when he received it, and accepted same without objection, or contributes to the mistake by his own wrong.
53 C.J., sec. 101, page 966; 23 R.C.L., sec. 45, page 349.
The cross bill charged a mutual mistake. The final decree was based on a supposed mutual mistake. What mistake or negligence did H.M. Seymour make? If we grant that Alice W. Jamison made a mistake; if we concede that she was ignorant of the true lines, yet, she intended to give a deed of trust on all of Lot 5. This was at most her own ignorance and was at most her own mistake, because she intended to give a lien on the whole lot. If the appellees claim that it was the mistake of Alice W. Jamison through her agent, then they are not entitled to reformation because if there is a mistake on the one side there must be fraud or inequitable conduct on the other side before reformation is granted. And this is no evidence of such on the part of H.M. Seymour.
53 C.J. 758, page 938.
It is seriously questioned whether or not after the valid foreclosure of a deed of trust the original grantor in such deed of trust can obtain reformation of the deed of trust in the absence of a showing that she was ignorant of her rights at the time of foreclosure. In other words, these complainants had known for years of the mistake when the foreclosure was made. They sat silently by and let the foreclosure be made, then they sat for six or seven more years before asking reformation.
53 C.J. 964, sec. 97.
The main ground upon which appellees claim title to the dispute area is that they have occupied the same for more than ten years.
Alice W. Jamison could not have claimed title by adverse possession as against H.M. Seymore because of the relation of mortgagor and mortgagee. When the appellees acquired title to the property and went into possession in November 1925 they did so while H.M. Seymour had a valid deed of trust on the land they were occupying. Therefore, the relation of purchaser, subject to mortgage, and mortgages continued to exist.
The possession of a mortgagor, or his assignee, is not only entirely consistent with the rights and estate of the mortgagee, but, as a general rule, cannot be adverse thereto until he has denied the mortgagee's rights under the mortgage and set up an exclusive title in himself, so openly and notoriously that the mortgagee must have known of the adverse claim.
1 R.C.L. 748, sec. 70; Thornley v. Andrews, 1 L.R.A. (N.S.), 1036.
Knox Lamb, of Greenwood, for appellees.
It was not proven that the land in controversy east of the bayou was in Lot five.
If the land in controversy was in Lot five, there was a mutual mistake in the instruments whereby the parties obtained title and these instruments were properly reformed.
Miles v. Miles, 84 Miss. 624, 37 So. 112; Brimm v. McGee, 119 Miss. 52, 80 So. 39; Birchett v. Anderson, 160 Miss. 144, 133 So. 129; Southwest Mortgage Co. v. Bannister, 128 So. 113; Spencer v. Spencer, 115 Miss. 71, 75 So. 770.
Appellants contend that appellees are guilty of laches. If anyone is guilty of laches in this case it seems to us that it is the appellant. Appellees purchased the property in 1925 and believed then, and still do believe, that their west line went to the bayou and that appellant's east line went to the bayou. They went into actual, open and notorious possession of the land and have been in such possession ever since. They had no reason to file a lawsuit to acquire that which they already legally owned. It is true that there was some discussion about whether the description was correct or not and they did take a bond of fate by having Jamison given them a deed describing the land in another way from the description given in the first deed, but by this they did not admit that they were not the owners of the land before they took the second deed. Mrs. Lamb and her sister maintained in their bill and Mrs. Lamb testified on the witness stand that she had always considered the land hers from the 30th day of November, 1925, to the time of the trial and had never done any act to show that she did not consider it hers. Appellees' attitude toward this land has never been a secret. On the other hand Mr. Johnson, Mr. Seymour's representative, testified that he had a map made in 1931 which showed that some of the land east of the bayou was in Lot 5. Yet the appellants knowing the appellees were in possession and knowing that they claimed the land as their own did nothing about the situation until June 1937. From the record there is nothing to show that appellees knew that appellant was even claiming the land. It was not encumbent on appellees to do anything.
Appellees have acquired title by adverse possession.
Appellees were in open, notorious, and exclusive possession of the land when the appellant took the deed of trust through which he claims. This was notice to the appellant of appellees' claim to the land.
Taylor v. Moseley, 57 Miss. 544.
The deed of trust executed in 1926 does not state that the indebtedness which it secures was a renewal of the indebtedness secured by the earlier deed of trust, or any part thereof. We, of course, readily admit that where a written instrument is renewed by another writing it is only necessary for the renewal to property identify the former debt so that calculations as to the amount due can be definitely made. If the 1926 deed of trust had referred to the prior debt in any way, it is possible that parole testimony could have been introduced to show accurately the amount of the debt which was renewed. Under the circumstances of this case we do not think parole testimony was competent. But granting, for the sake of argument, that parole testimony was admissible to definitely determine the amount of the renewal, appellant wholly failed to meet the requirements of our law in his attempt to prove by parole the debt of which this 1926 deed of trust was a renewal.
Sec. 2318, Code of 1930.
Where the original debt is evidenced by a written instrument which is properly identified and from which the definite amount due can be ascertained the new promise need not state the amount due, but otherwise it must.
Hart v. Boyt, 54 Miss. 547; Heflin v. Kinnard, 67 Miss. 522, 7 So. 493; Taylor v. DeSoto Lbr. Co., 137 Miss. 829, 102 So. 260; Richter Phillips Co. v. Phillips, 175 Miss. 248, 166 So. 393.
Argued orally by Forrest B. Cooper, for appellant, and by Knox Lamb, for appellee.
Appellant, Seymour, filed his bill in the chancery court of Quitman County against appellees, Mrs. Virginia O. Lamb, and her sister, Miss Verta Owens, to confirm and quiet his claim of title to 7.25 acres of land in Lot 5, Section 6, Township 27, Range 1, east, in that county, and to recover rent therefor. Appellees answered the bill denying the ownership of the land by appellant, and claiming ownership in themselves, making their answer a cross-bill asking that their claim of title be established and confirmed. Both sides claimed title through a common source, Alice Jamison, and, in addition, appellees claimed title by adverse possession for more than ten years. The chancery court granted the relief prayed for in the cross-bill, from which decree appellant appeals.
The following facts were established, without any substantial conflict, in the evidence: In 1916, Alice Jamison was the owner of Lots 5 and 6 in section 6, Township 27, Range 1, east, in Quitman County. Lot 6 adjoins Lot 5 on the east. While such owner, and in April of that year, appellant made her a loan of $6500, evidenced by her promissory note, to secure which she gave a deed of trust on Lot 5. On October 21, 1920, she executed another note and deed of trust to secure the same on Lot 5 in appellant's favor, and again on April 15, 1926, another to secure a note for $5600. In all these deeds of trust, the property conveyed was described as Lot 5, section 6, Township 27, Range 1, east, in Quitman County, Mississippi. The last one executed was foreclosed on February 15, 1930, appellant becoming the purchaser at the foreclosure sale, and receiving a deed accordingly.
A bayou runs through Lot 5 in a northerly and southerly direction near its east boundary. The evidence tended to show, and the chancellor found, that the true line between the two lots was not the bayou, as claimed by appellees, but was east of the bayou. The area between the true line and the bayou is the 7.25 acres in controversy, and is in Lot 5, not in Lot 6.
In the latter part of 1925 and the early part of 1926, Miss Jamison conveyed to appellees, by two deeds, Lot 6 and the 7.25 acres in controversy in Lot 5. They thereupon went into possession of the land conveyed and openly exercised acts of ownership thereof up to the time of the filing of the original bill in this cause in 1937.
The appellees base their claim on two grounds: (1) Open and notorious adverse possession under claim of title for more than ten years before the filing of the original bill; (2) the right to reform the deeds of trust and trustee's deed, under which appellant claims title, so as to exclude therefrom the 7.25 acres involved upon the ground that it was included through mutual mistake of the parties thereto. The chancellor did not pass on the first question, but held with appellees on the second. We will consider them in the order stated.
It will be observed that less than ten years elapsed between appellant's purchase at the foreclosure sale, and the filing of the original bill, but more than ten years elapsed between appellees' purchase and the filing of the original bill. The question is, did adverse possession begin with appellees' purchase or appellant's purchase? When appellees received their conveyance, appellant held a recorded unsatisfied mortgage on the property. We pass the question, whether title by adverse possession can be acquired as against a live outstanding mortgage (that subject is treated in 1 R.C.L., p. 748, sec. 70). It is unnecessary to decide that question because the evidence shows, without any substantial conflict, that such possession did not begin until after the foreclosure and purchase by appellant in 1930, less than ten years before suit. Appellant's right of possession did not begin until then. Alice Jamison was rightfully in possession as against appellant until she conveyed to appellees, and then the latter were in rightful possession under such conveyance until the foreclosure and purchase by appellant. Until that time, they had the right, as did Alice Jamison, to possess, improve, and use the land as their own. It was in fact their own, subject to the mortgage. The presumption is, they held it subject to the mortgage. There is no substantial evidence to overcome that presumption.
We are of the opinion that the decree reforming the deeds of trust and the trustee's deed on the ground of mutual mistake was not sufficiently supported by the evidence. Under the law to justify such a decree, the evidence must show the mutual mistake beyond a reasonable doubt. Watson v. Owen, 142 Miss. 676, 107 So. 865; Progressive Bank of Summit v. McGehee, 142 Miss. 655, 107 So. 876; Rogers v. Clayton, 149 Miss. 47, 115 So. 106; Harrington v. Harrington, 2 How. 701. In the Harrington Case, Judge Sharkey said that proof should be clear beyond a reasonable doubt; and that it was better that a doubtful written instrument should stand, than that a doubtful provision should be substituted by parol testimony.
It is true that there was some evidence to support appellees' contention, but it falls short of meeting the requirements of the law. In each of the three deeds of trust, the property was described as Lots 5 without any exception in the description. They were executed at different times during a period of about twenty years. Therefore, if a mistake was made, exactly the same one was made three times. There was ample evidence to show that no mistake was made. Certainly it was not shown beyond a reasonable doubt.
The result is a judgment here for appellant establishing his title to the land involved, but the cause is remanded to enable the chancellor to pass on what is a reasonable rental, and adjust the taxes, if necessary. Those questions were not passed on in the decree.
Reversed and remanded.