Jones v. Grimes

Smith, C. J., delivered the opinion of the court. Two questions’ are presented by this record: First, Can the bona-fide incumbrancer for value defense be here raised by demurrer; and, in event that question is answered in the affirmative, second, does it appear from the bill that appellees are bona-fide incumbrancers for value without notice of appellants’ claim of ownership of the land? The bona-fide purchaser or incumbrancer for value defense is an affirmative one, and must be raised by plea or answer, unless all the, facts necessary to establish it are alleged in the bill, in which event it can be raised by demurrer. Greaves v. Atkinson, 68 Miss. 598, 10 So. 73. The bill here under consideration alleges that appellees are incumbrancers, for value, and that the notice they had of appellants’ claim to the land is such as the law will imply, because- of appellants’ possession thereof at the time of the execution of the deeds of trust here sought to be canceled, thereby negativing knowledge or notice of such claim on the part of appellees from any other source, so that, in the event appellees were not charged with notice of appellants’ claim to the land because of their possession [878] thereof, it will appear from the bill that appellees are bona-fide incumbrancers for value. The first question, therefore, must be answered in the affirmative. It is admitted for appellee that: “While the general rule is that possession of land by one claiming some interest therein is notice to the world of the character and extent thereof, a well-defined exception to this rule is that possession of land, with claim of interest therein by a granter thereof, is not after the recording of the deed executed by him notice to an innocent purchaser for value from his grantee of his claim of an interest therein” but their contention is that this exception to this general rule is subject to the qualification ‘ ‘ that where the possession of the grantor, after his conveyance of the land, is long continued, a purchaser or mortgagee of the land is put upon notice of such possession, and is legally bound to make inquiry as to the rights or claims of the possessor to the land, and such possession becomes notice to the purchaser or mortgagee of the occupant’s claim and right to his possession, and thereby the original doctrine, that possession is notice, becomes operative,” in which they are supported by several authorities. We cannot admit the 'soundness of this qualification, for so to do would be to allow a grantor to deny the validity of his deed which, by being recorded, has been published to all the world as conveying title to the grantee therein, and which has been relied upon by subsequent purchasers, and thus defeat one of the main objects of our laws regarding the recording of conveyances. Hafter v. Strange, 65 Miss. 323; 3 So. 190, 7 Am. St. Rep. 659; Baldwin v. Anderson, 103 Miss. 463, 60 So. 578, in which case the possession of the grantor was from the 15th day of July until the 7th day of June of the next year. But it is said that the rule itself has no application here, for the reason that the deeds of trust sought to be canceled were executed after the death of John Jones, the owner of the land, and when it was in the possession [879] of appellees, his wife and children, the rule applying only to a grantor and not to persons claiming through him. This principle, conceding its soundness for the sake of the argument, cannot be availed of here, for the reason that' Katie Jones was one of the grantors in the deed, and the bill avers no change in the possession of the land after her husband’s death such as would arrest attention and excite inquiry, but ■ simply avers that Katie Jones has “continued in the use and possession of said property ever since, believing that she was the lawful owner thereof,” and “that complainants were, at the time each of said pretended deeds of trust were made and executed, living upon said property.” That Katie Jones had no title to the land at the time of the deed to Grimes is not material, for by joining in that deed she necessarily joined also in its assertion that the title to the land was by it vested in Grimes. The second question, therefore, must also be answered in the affirmative. Affirmed and remanded.