Myers v. Viverett

Smith, G. J., delivered the opinion of the court. (After stating the facts as above.) A. The instrument under which appellants claim title, in so far as [340] it deals with the land therein described, is not a will, but is a deed by which the land was conveyed to appellants, subject to a life estate reserved to the grantors. McDaniel v. Johns, 45 Miss. 632; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147. B. There is no merit in the contention of counsel for appellee that, conceding the instrument under which appellants claim title is a deed, and not a will, the statute of limitations commenced to run against appellants upon the death of their father, and therefore appellee’s title is .now perfect by adverse possession. Appellee’s possession did not become adverse to appellants until the death of both of the life tenants. C. When appellee purchased the land, he was charged with notice of appellants’ title thereto, although the record of the deed under which they claim had been destroyed by fire, and it had not then been again recorded. Myers v. Buchanan, 46 Miss. 397. Appellee contends, however, that section 3185 of the Mississippi Code of 1906, first enacted in 1892, operates retrospectively, so that the record of appellants’ deed which was destroyed by fire did not constitute constructive notice thereof longer than three years after its destruction; it not having been again placed on the record within that time. This statute has no such retrospective effect. Its clear meaning is: First, that a record which had been lost, stolen, or destroyed prior to the time the statute became operative shall not constitute constructive notice longer than three years from such time, “unless within that time the instrument shall be again placed on the record or proceedings be begun to perfect the record;” and, second, that a record lost, stolen, or destroyed after the statute became operative shall not constitute constructive notice longer than three years from the time of the loss, theft, or destruction thereof “unless within that time the instrument shall be again placed on the record or proceedings be begun to perfect the record.” [341] D. Mrs. Livingstone, Adams, and appellee each had •constructive notice of the deed under which appellants claim title. It does not appear from the evidence th^it .any one of them relied upon any act or statement of appellants as indicating that they claimed no interest in the land, and the record does not present a case of estoppel because of the acceptance of benefits. Appellants, therefore, are not now estopped from asserting title to the land. 1 E. There is no merit in appellee’s contention that the evidence does not disclose a common source from which his and appellants’ titles are derived. If Mrs. Shepherd’s only interest in the land was the life estate reserved in the deed under which appellants claim, the common source of title was her husband, Benjamin Shepherd. If Mrs. Shepherd, and not her husband, was, in fact, the owner of the land, she is the common-source -from which the titles of the parties hereto aré derived. Reversed, and decree here in accordance with the prayer of appellants’ bill. Reversed. On Suggestion of Error. The decree of the court below was on a former dayl xeversed, and decree rendered here in accordance with the prayer of appellants’ bill, except that the cause was remanded for the purpose of ascertaining the amount due •appellants for rent. The suggestion of error filed herein by appellee will be •overruled; but our former judgment will be amended so as to include appellee’s claim for improvements in the account to be stated in the court below. Suggestion of error overruled.