Lincoln v. Mills

Appellant's suit in ejectment was transferred to the Chancery Court, whereupon she filed her bill setting up that she was the owner of lot No. 7 of square 60, north of Main Street in the city of Columbus. This claim was sought to be based upon her purchase of this property at a foreclosure sale under a deed of trust executed by E.S. Moore in favor of C.L. Lincoln. The defendants are the heirs at law of Mrs. Alice H. Moore, who was the wife of E.S. Moore. The salient facts as shown by the testimony and by stipulation of counsel are as follows: This property being part of Sixteenth Section School Lands, was held by E.S. Moore under a ninety-nine year lease, dating from August 1, 1821. This lease, executed by the trustees of Franklin Academy, was "renewable forever" at the option of the lessee. (For history of these lands, see Street v. City of Columbus, 75 Miss. 822, 823, 23 So. 773.) It expired August 1, 1920. Prior to its expiration date E.S. Moore executed a deed of trust in favor of C.L. Lincoln to secure an indebtedness in the original sum of $1,878. Upon the expiration of the lease it was not renewed by E.S. Moore, although the records of the City of Columbus show that the sum of $5 was fixed as a charge for drafting renewal leases, and, further, that a receipt dated August 31, 1920, was by it issued in the *Page 519 name of E.S. Moore in the sum of $5.50, reciting that $5 was for attorney's fee and fifty cents was for notary fee for renewal lease. The deed of trust referred to was dated June 12, 1917. About a year after the expiration date of the lease on August 1, 1920, E.S. Moore and his wife, who had theretofore lived on other property, moved upon the property here involved and continued to occupy same as their home until their deaths, in the years 1936 and 1938, respectively. The deed of trust was marked satisfied and canceled by C.L. Lincoln by marginal notation dated October 10, 1924, which recited that a new renewal note and trust deed had been executed. A new deed of trust to secure the sum of $2,600 was in fact executed the same day, and this was later foreclosed and trustee's deed executed September 29, 1937, to appellant. In the meantime a lease to the property was executed by the City of Columbus (successors to the trustees of Franklin Academy) to Mrs. Alice H. Moore. This lease recited that it was "made in lieu of a lease made to the said Mrs. Alice H. Moore prior to August 1, 1920." It was dated October 20, 1925, and on that date duly lodged for record. Mrs. Moore resided thereon until her death thirteen years later. Upon the hearing the trial court decreed that the complainant (appellant) was not entitled to the property nor to the relief prayed for. There are many interesting questions presented by appellant relating to the status of Mrs. Moore as a resulting trustee or trustee ex maleficio holding this property under her lease for the use and benefit of the mortgagee, C.L. Lincoln, who had the right to assume and request that the renewal lease be executed to E.S. Moore, who alone had the option to renew. We shall not discuss these contentions, since appellees base their rights solely upon title by adverse possession through the ownership, use and control exercised under the color of title given by the lease to their mother, Mrs. Alice H. Moore. Upon the issue of adverse possession certain matters in pais are *Page 520 relevant. These include collection of rents on the property by Mrs. Moore prior to acquisition of her lease, and the payment by her of taxes upon assessments in her name after 1935. For a greater number of years, however, the land was assessed to Mr. Moore and tax receipts issued in his name. In 1923, 1924 and 1931, E.S. Moore, by marginal notations and a renewal deed of trust, acknowledged the indebtedness to C.L. Lincoln, asserting thereon that the property was not his homestead. In 1927 E.S. Moore gave a warranty deed to the property to L.J. Barksdale, a son-in-law, who in turn conveyed it back in 1931. These acts are such as would be relevant upon an issue of adverse possession to be resolved alone by circumtantial evidence. Yet the appellees' claim is based upon more solid ground. The lease was issued to Mrs. Moore by the city of Columbus in 1925, and the uncontradicted testimony shows that the husband not only had constructive knowledge of its execution, but had actual knowledge of its contents. On several occasions he had shown the lease to his daughters, and assured them that his wife owned the property. The children, upon these assurances during his lifetime, had expended the sum of $836.20 for repairs, in order that their mother might be provided with a comfortable home. Any attempt to reconcile all the acts of the several parties with any theory deducible from such acts as mere circumstances must fail. The contentions of opposing counsel, although vigorously asserted, are considerately restricted to charges which fall short of implications of fraud or connivance. It remains clear, however, and it is controlling, that there was at least color of title in Mrs. Alice H. Moore through the lease to her, and her assertions of ownership and control thereunder for over ten years, all of which was with the knowledge and consent of the husband. Regardless of whether a wife may be permitted to acquire, as against her husband, title to the homestead by the mere assertion of title or other acts in pais, it is settled *Page 521 in this state that, where the wife holds the homestead under color of title arising from a recorded conveyance in her name, and evinces her claim by acts of ownership and control, all to the knowledge of the husband, she may acquire complete title thereto by adverse possession for the statutory period. In Hartman v. Nettles, 64 Miss. 495, 8 So. 234, the husband held a deed from one Evans, who later under the mistaken notion that he could revoke the deed to the husband, executed another deed to the wife. In discussing the effect of the second instrument as color of title, the court said: "But this deed, though ineffectual of and by itself to vest any title in the wife, was sufficient color of title to ripen into a perfect one by the lapse of time. She has held possession under it for more than 20 years, claiming the land as her own; and, though the husband has also resided upon the premises and cultivated the lands, his occupancy has been in recognition of and in subordination to the wife's claim, and not in his own right as owner. Under such circumstances, the husband would be barred by limitation of any action to recover the possession from the wife; and, since the husband is barred, so also is the creditor, since he could only subject to sale under execution the interest of the husband in the land." In Massey v. Rimmer, 69 Miss. 667, 13 So. 832, the husband altered a deed by erasing his name as grantee and inserting the name of his wife. It was held that since this procedure, however irregular, was for the purpose of vesting title in the wife, the statute of limitations began to run in her favor from that time and that her title in the land was perfected after the lapse of ten years. See, also, Potter v. Adams, 125 Mo. 118, 28 S.W. 490, 46 Am. St. Rep. 478; McPherson v. McPherson, 75 Neb. 830, 106 N.W. 991, 121 Am. St. Rep. 835. In the instant case the husband's knowledge of and acquiescence in the issuance of the renewal lease in the wife's name furnish a pertinent analogy. *Page 522 The maturing of title to the land in the wife by adverse possession operated completely to divest not only the husband of any claim or right of title thereto, but also all creditors or lienors claiming through him, since the title of the wife is not a derivative but an independent paramount title. Niles v. Davis,60 Miss. 750; Gordon v. Anderson, 90 Miss. 677, 44 So. 67; McClanahan's Adm'r et al. v. Norfolk W. Ry. Co., 122 Va. 705, 96 S.E. 453; Virginia W. Va. Coal Co. v. Charles, 4 Cir., 254 F. 379; Potter v. Adams, supra; 2 C.J.S., Adverse Possession, 804, sec. 200. This is a case, the determination of which must cause loss to those who, though entirely without conscious fault, have builded their claims upon insecure assumptions not reinforced by law. The learned chancellor held that the equities and the law favored the appellees, to which view we are compelled to give assent. Affirmed.