Taylor v. Mosely

Campbell, J., delivered the opinion of the court. The bill shows a resulting trust in favor of the complainant as to the land which is the subject of controversy, and that the complainant has had the actual occupation and exclusive dominion and control of the land since September, 1873, supposing the title to be in himself, and but recently has learned that his son, who made the investment for him, took the title in his own name instead of to the complainant, with whose money the purchase was made. The question is, whether the resulting trust in favor of the complainant, who actually occupied the land as his residence, shall prevail over the claim of the mortgagee, who loaned money and took a mortgage of the land from the son of the complainant, whose legal title was on record, at a time when the complainant was openly, notoriously and exclusively in the actual possession of the land ? [547] The doctrine is firmly established in this State and elsewhere, that “ open, notorious and exclusive possession of real estate, under an apparent claim of ownership, is notice to those who subsequently deal with the title, of whatever interest the one in possession has in the fee; whether such interest be legal or equitable in its nature.” Wade on Notice, § 273; Dixon v. Lacoste, 1 S. & M. 70; Hall v. Thompson, 1 S. & M. 443 ; Wilty v. Hightower, 6 S. & M. 345; Walker v. Gilbert, 7 S. & M. 456; Jones v. Loggins, 37 Miss. 546; Bell v. Flaherty, 45 Miss. 694; Claiborne v. Holmes, 51 Miss. 146; Loughridge v. Bowland, 52 Miss. 546. There are some exceptions to the rule as thus stated, but this case is not within any exception. Counsel for the mortgagee contend that it was a fraud on the part of the complainant to permit the legal title to remain of record in his son, whereby he was enabled to obtain money on the faith of such title, and that the complainant should be estopped from setting up his secret equity against the mortgagee. The answer to this is, that the complainant’s possession was notice of his claim, sufficient to lead to inquiry of him as to the nature of his possession, which, it must be assumed, would have led to correct information, whereby the mortgagee would have been advised of the right of the complainant, and, therefore, the mortgagee must be held to have had notice of the right of the complainant, and, having notice of such right, the claim of the mortgagee is subordinate to it. A possessor of land may be estopped under some circumstances from claiming that his possession is notice of his claim to the land ; but the complainant in this case did nothing but occupy his own, — that for which his money paid, and which he supposed to have been conveyed to him. He is not estopped to claim his own against the mortgagee, who must be held to have known of his right, because she could have known by asking him, who to all appearances was owner. Decree overruling demurrer affirmed and cause remanded.