Martin v. Raleigh State Bank

*6 Ethridge, J., delivered the opinion of the court. The Raleigh State Bank, appellee herein, filed its bill in the chancery court of Simpson county, setting up that the appellants E. B. Martin, W. T. Martin, and Emma Martin were the original owners of certain lands involved in this suit, and that they borrowed certain money *7 from George M. Foreman & Co., for which they gave said company a deed of trust as security for the loan, the said deed of trust being properly recorded; that subsequently E. B., W. T., and Emma Martin borrowed certain other sums of money from the appellee and gave it a deed of trust on the same land, and wrote in the face of this deed of trust that it was a second deed of trust on the land involved in this suit; that subsequently the said E.. B., W. T., and Emma Martin gave Mims Williams a third deed of trust on the land involved in this suit; that the said appellants failed to pay the loan procured from George M. Foreman & Co., and the trustee in that deed of trust foreclosed it on the 7th day of July, 1924, to satisfy this indebtedness; that at said sale one W. P. Kent purchased the said land; that appellee did not appear at this sale and bid on same or take any steps whatever to protect its interest in the land, but permitted it to be sold. Neither did the appellee offer to' pay off the said Foreman deed of trust, which was superior to its deed of trust. After the sale was made, as above stated, Kent conveyed the title to the land purchased at the trustee’s sale to Mims Williams, who afterwards sold the said land to the appellants, taking a deed of trust thereon for the purchase money, which included the deed of trust formerly given to Williams and the amount of money which he had paid to Kent for his (Kent’s) title. ( After these transactions had taken place, and after the appellants had reacquired the property, as above stated, the appellee caused its trust in its deed of trust to be foreclosed and at a sale thereof bought the land and filed suit against the appellant, among other things, to secure possession, of same. The 'appellants first demurred to the bill, which demurrer was overruled, and then answered setting up that by virtue of the clause in the appellee’s deed of trust reciting that it was a second deed of trust and- subordinate to the Foreman deed of trust, and that appellee failed to pay off the Foreman deed of trust or appear *8 and buy in the land at the sale therein, that thereby ap-pellee lost its rights to proceed against the land, and that as the appellants had. purchased the said land through the chain of title resulting from the Foreman sale under that deed of trust, that appellee had lost its rights to proceed against the lands. Appellants also contend that it was the duty of the ap-pellee to discharge the superior lien to protect the property, and that it should not by its foreclosure of its deed of trust prevail over the rights of the appellants acquired as above stated. It was also set up by way of plea that Mims Williams should be made a party thereto, and it is now contended that it is error for the court to render the judgment it did without Williams being made a party to the lawsuit and without declaring the amount due Williams under his last deed of trust. The court sustained the prayer of the bank, the ap-pellee, as against appellant, but saved Williams’ rights under his deed of trust, declaring the right' of the bank to be subordinate to that of Williams under the last deed of trust, but failed and refused to fix the amount of Williams ’ deed of trust. The appellants rely upon Huzzey v. Heffernan, 143 Mass. 232, 9 N. E. 570, wherein that court held that where a grantor, in giving a- second mortgage, excepted from his warranty the first deed of trust and those acquiring title thereunder, and where afterwards the grantor reacquired the title to the property through foreclosure and mesne conveyances subsequent to the foreclosure to the original grantors, there was no estoppel because of the exception in the mortgage stated above. Appellants also rely upon McInnis v. Pickett, 65 Miss. 354, 3 So. 660. In this case, the record showed, and it was admitted by the parties, that William Kirkwood, deceased, was a common source of title and owned at his death the land in controversy. In September, 1848, Henry Kirkwood conveyed all of his interest in his father’s estate to W. R. and Alexander Kirkwood. In February, 1849, Nancy *9 Pickett (née Kirkwood) executed a deed to Alexander Kirkwood, reciting* that she thereby conveyed “all the right, title and interest I have in the estate of my father." William K. Kirkwood died in 1854, and Margaret Well (née Kirkwood) some time thereafter. Neither of them were married or left any issne. It was held by the conrt that this title conveying all of her right, title, and interest in the estate of her father did- not prevent hér subsequently from acquiring through inheritance, and that any title she might, subsequently to her conveyance, acquire to the estate of her father, would not inure to the benefit of her former grantee. The court, in its opinion, stated: ‘£ The conveyance by the plaintiff of all her ‘ right, title and interest in the estate of her father, deceased,’ did not estop her from asserting her title by descent cast upon her by the subsequent death of a brother or sister who were coheirs with her to her father. Any title she might subsequently to her conveyance acquire to the estate she conveyed would by our statute inure to her grantee, and she could not assert it. “The estoppel is coextensive with the estate, right or interest which the conveyance purports to pass. It did not purport to convey an estate which the grantor might at a future day derive by descent from her coheirs.” In the case of Bramlett v. Roberts, 68 Miss. 325, 10 So. 56, this court held that under section 1195, Code of 1880, a quitclaim deed of land passes all the interest the grantor has in the land conveyed and estops the grantor and his heirs from asserting a subsequently acquired adverse title to the lands conveyed. Judge Campbeul delivered a short opinion, which reads as follows: “We recognize the doctrine that the estoppel of a. conveyance of land is only ‘ coextensive with the estate, right or interest, which the conveyance purports to pass,’ as held in McInnis v. Pickett, 65 Miss. 354 [3 So. 660], hut the conveyances by Bramlett were not restricted to an estate less than the entire half interest conveyed by *10 each. He conveyed a half interest in the land by one instrument, and the other half by the other. The reference in the conveyance to the sheriff’s deed to him conveying the lands was for purpose of description of the lands, and not a particular interest conveyed. The sheriff’s deed purported to vest in him a fee simple, and his conveyances must be held to have been intended to pass a like estate. Therefore, any title to these lands subsequently acquired by him inured to and vested in his grantee, by virtue of section 1195 of the Code.” In the case of Edwards v. Hillier, 70 Miss. 803, 13 So. 692, the court held that where one, owning only an undivided interest in the land, conveys it by a deed purporting to pass the entire interest, and afterwards acquires the interest of his co-owner, the-title thus acquired inures eo instanti to his grantee; and it makes no difference that his deed to the purchaser contained a. misde-scription of the land, this having meantime been corrected by decree of the court. In the case of Leflore County v. Allen, 80 Miss. 298, 31 So. 815, the court held that under section 1235, Code of 1880, providing that a conveyance without warranty shall operate as a statutory quitclaim and release, and section 1195 of the same Code, that a quitclaim and release shall estop the grantor and his heirs from asserting a subsequently acquired title to the lands conveyed, a deed without warranty, in which a husband unites with his wife in conveying lands owned by her, will estop the husband and his heirs from asserting title to any interest therein which he may subsequently inherit from her; the word, “acquired,”-as used in the statute, relating to acquisition by descent as well as other methods. Under these authorities, we think the doctrine of the Massachusetts court is not applicable in this state, and that the title which the appellants acquired from Williams, subsequent to the giving of the deed of trust to the appellee, inures to the benefit of the beneficiary in the second deed of trust, and that the court was correct *11 in so holding, and that Williams was not a necessary party to the suit. The appellee had the right under its foreclosure sale to the possession of the property as against the rights of the appellants, and the defendant Williams would not he affected hy a decree to any snit to which he was not a party, had the court not expressly reserved his rights. As the court did expressly reserve his rights and make his lien superior to the title of the appellee, he was not in any manner injured, and the appellants ’ right was not affected, as they could not assert Williams’ rights for him. It follows from the foregoing views that the judgment must he affirmed. Affirmed.