Frye v. Rose

Sykes, J., delivered the opinion of the court. The appellees, as landlords, attached several bales of cotton under section 2838- et seq., Code of 1906 (section 2336 et seq., Hemingway’s Code), for the amount of one thousand, six hundred dollars rent claimed to be due them for the year 1917. This cotton was replevied by the appellant under section 2856 et seq., Code of 1906 (section 2354^et seq., Hemingway’s Code), It was agreed that the cotton was raised on the land of ap~ [794] pellees by tbe appellant during that year. The appellant claimed, however, that he only owed rent at the rate of eight dollars an acre for the land, which he had heretofore tendered the appellees, and which tender he made in open court. After the conclusion of the testimony a peremptory instruction was given in the circuit court in favor of the appellees, and judgment duly entered thereon, from which judgment this appeal is prosecuted. The facts in the case are undisputed, and are briefly as follows: A man by the name of Laughlan' was the owner of ninety-eight and four-tenths acres of land, in Coahoma county, and rented this land by written contract for the farming year 1916 to GL G-. Frye, appellant in this case. This contract was not recorded, and ended December 31, 1916. Frye lived on an adjoihing tract of land, and .under this contract with Laughlan was put in and held possession of the land and cultivated it during the year 1916. On the 12th of September,- 1916, Laughlan sold the land to Oscar Carr and W. A. Ritchie. Oarr. and Ritchie sold the .land on September 20, 1916, to J. H. Herrin. Under Herrin’s deed he was to be given possession January 1, 1917. After Herrin purchased the land, and some time during the month of September, 1916, he made a verbal contract with appellant, Frye, for the rent of this tract of land to Frye for the farming year 1917 for a rental of eight dollars an acre. On December 14, 1916, J. H. Herrin sold the land to the appellees. Herrin at the same time by written contract . rented this land from appellees for the year 1917 for a * rental of one thousand, six hundred dollars, for which he gave his note. . The appellees are nonresidents of the state of Mississippi, and their negotiations for the purchase of this land from Herrin were conducted through W. A. Ritchie, one of the vendors of this land to Herrin. All of the deeds above mentioned were duly recorded. Mr. Ritchie [795] testified that he lmew the appellant, Frye, was in possession of this land at the time Carr • and. Ritchie purchased it. At the timé of their purchase no inquiries were made by the appellees or their agent of Frye as to what right, title, or interest he claimed in the lands.Frye continued to occupy and cultivate the lands during the farming year 1917. In this suit the appellees claim that Frye is the sublessee of Herrin, who is the lessee from the appellees, and is liable for the one thousand, six hundred dollars rent Herrin agreed to pay appellees. This in effect is what the lower court held. It is the contention of the appellant that he is only liable for the eight dollars an acre, the amount the lands were rented to him by Herrin. The question to be decided is a narrow one, namely: What notice are the appellees to be charged with because of the possession of the appellant of this land at the time appellees purchased it? The appellees contend that this notice is restricted to the title of appellant for the farming year 1916, obtained by virtue of his unrecorded contract with Laughlan; that any rights he may subsequently have acquired under Herrin were not being exercised at that time, and could not be exercised until January, 1917; that, at the time the contract was made with'Herrin, Herrin was not in possession of the land. The appellant claims that his possession was not only notice of his contract for the year 1916, but of every other title or right of possession that he held at the time appellees purchased the land. It is unquestioned that at the time Herrin rented the land to Frye for the farming year 1917 he had a legal right to' do so. It also unquestioned that the oral contract entered into between Herrin and Frye is a valid and binding one. McCroy v. Toney, 66 Miss. 233, 5 So. 392, 2 L. R. A. 847. The right of a lessee-in a case of this kind has not heretofore been presented to this court. The question of possession, however, under an unrecord [796] ed instrument, and what notice the purchaser is .to he charged with therefrom, has been repeatedly passed upon by this court. The rule is thus stated in the case of Bell v. Flaherty, 45 Miss. 694, quoting from Perkins v. Swank et al., 43 Miss. 361: “Possession is a fact to put creditors and purchasers on inquiry as to the nature and extent of the estate of the vendee, and has the effect of charging with knowledge óf his actual estate and title” — citing Dixon v. Lacoste, 1 Smedes & M. 107. In the case of Bolton v. Roebuck, 77 Miss. 710, 27 So. 630, the' rule is announced that: “The possession by the person who occupies land puts the whole world on notice of, and inquiry as to, the extent of his claim.” , See, also Railroad Co. v. Sanders, 93 Miss. 107, 46 So. 241. The possession of the appellant, Frye, was sufficient to put the appellees upon inquiry as to Ms title to the premises, and a failure upon the part of the appellees so to do charges them- with notice of everything to which such an inquiry would reasonably have led. This inquiry would undoubtedly have led to a full disclosure of all rights ■ appellant claimed—not only the right of possession for the year 1916, but also that for the year 1917. Parker v. Foy, 43 Miss. 260, 5 Am. Rep. 484; Stovall v. Judah, 74 Miss. 756, 21 So. 614; Levy v. Holberg, 67 Miss. 526; 7 So. 431. This question is ably discussed in Pomeroy’s Equity Jurisprudence, vol. 2. (3 Ed.), sections 614-616. In section 616, after stating that there is some disagreement among the American decisions concerning the question of what rights and interests held by the occupant his possession is a constructive notice of, and after stating that the rule in England is that the possession of a tenant is not only notice of all rights and interests connected with the tenancy, but is also notice of all interests ac [797] quired' by collateral and even subsequent agreements, and that this rule bas been adopted by some of tlae American courts, which hold that a possession originally acquired by one right or in one manner is notice of all other rights subsequently and differently obtained and held by the occupant, unless there is something in the circumstances of the case which has actually misled the purchaser who is to be affected by the notice. In a note to this section this learned text-writer says: “In my opinion, these decisions are much more in harmony with the general doctrine than those others which have, speculated and drawn refined 'distinctions upon the amount of notice derived from the occupant’s original right to the possession. The reason upon which the whole doctrine. rests seems to be conclusive. The possession of a third person is said to put a purchaser upon inquiry, and he is charged with notice of all that he might have learned by a due and reasonable inquiry. Clearly a purchaser who is thus put upon inquiry is bound to inquire of the occupant with -respect to every ground, source, and right, of his possession; anything short of this would clearly fail to be the ‘ due and reasonable inquiry.’ ” The case of Crooks v. Jenkins, 124 Iowa, 317, 100 N. W. 82, 104 Am. St. Rep. 326, quotes with approval the above note from Mr. Pomeroy in a well-reasoned ease. In Finch v. Beal, 68 Ga. 594, quoting from a previous opinion of that court, the rule is laid down that: ‘ ‘ The actual possession-of land is notice to all the world of whatever rights the occupant really has in the premises, and the vendor cannot convey to any other person without such person being affected with notice. ” At the time of the appellees ’ purchase of this land the appellant had acquired by valid contract the right to the possession of the land for 1917, thereby extending his rightful possession during that’ year. There was no record title of appellant when appellees purchased. Ap798 pellees failed to make inquiry of appellant as to the nature, character, and extent of his rights in the land. Failing to do so they are charged with notice of what a reasonable inquiry of appellant would have ascertained and this inquiry would have disclosed, not only the lease from Laughlin, but also the lease_ from Herrin. This is a case where either the appellant or the appellees are to suffer for the bad faith of Herrin. The appellees, having failed to use diligence to ascertain under what title the appellant held, are therefore chargeable with notice of the 1917 lease. The pleadings in the case show that the appellant tendered the rental of eight dollars an acre. He occupied the land under his contract of lease with Herrin, and not as a sublessee of Herrin. He is therefore only liable for this amount. Judgment reversed, and judgment will be entered here in accordance with this opinion. Reversed, and judgment here.