Clark v. Rainey

Whitfield, J.,

delivered the opinion of the court.

So far as the issues between appellants and Mrs. McLin and A. E. Anderson, Jr., and R. C. Patty are concerned, we have, in this appeal, nothing before us, as the final decree very singularly pretermits any decision as to them, and the lands to which they assert claims, disposing of the rights of the other-appellees by dismissing the bill as to these other appellees, apparently solely on the finding of the chancellor that W. G. Greer was over twenty-two years of age when the bill was filed, August 23, 1889.

We do not think the testimony shows satisfactorily any resulting trust in Greer to the half interest in the land in the Arrington deed, which, on the face of that recorded deed, was in Bogle. The due-bill for $6,000, in Confederate treasury notes, was due January 1, 1865, and, apparently, paid then, but was made in October, 1864, when the contract of sale was made, and the deed was made September 5, 1866. It is not shown whether the due-bill was payable to Arrington and Kennedy jointly, or how. The testimony lacks clearness and definiteness. The purchase money was manifestly not paid at the time of the contract of purchase, and, if Greer furnished all the money, the due-bill was jointly made by Bogle and Greer, and indicates, so far as it speaks, a joint purchase. It is sufficient to say that, as to this land, the proof fails to show, satisfactorily and clearly, any resulting trust.

So far as the land in the Kennedy deed is concerned, the circumstances, independently of the testimony of Mr. and Mrs. Thomas, very strongly suggest that there was in Greer a trust in this land to the extent of an undivided half interest. Bogle wrote Greer that the trade was for “all of section 28, and northwest quarter of section 27, ’ ’ refers to it as the ‘‘ Heath-man land, ’ ’ and says Kennedy was present when he was writing, describing the land to him as an elegant tract. Bogle made this trade, ‘ ‘ acting for himself and Greer, ’ ’ in the language of the bill, pud as shown by his letter in October, 1864. *156 He took the Kennedy deed to himself alone, nevertheless, in November, 1865, nearly a year before he to'ok the Arrington deed to himself and Greer jointly, kept the deeds in his possession till May 11, 1868, some months after Greer’s death, in September, 1867, and on that day put both to record at the same time. He had manifestly been intrusted by Greer with the making and consummation of these contracts respecting all this land. But, granting this, the evidence shows White, CoL lins, Mrs. Farish, and Lake to be innocent purchasers for value, without notice, of whatever interest Bogle was shown to have by the record; and hence the trust avails nothing.

But, on the record, Greer was tenant in common with Bogle in the lands in Arrington’s deed, owning one undivided fourth interest in fee therein. Being a tenant in common with Greer, Bogle’s attempted purchase from the auditor March 24, 1871, taking title to himself to the whole of section 28, operated a redemption. Jones v. Merrill, 69 Miss., 747 ; McGee v. IIolmes, 63 Ib., 50; Allen v. Pool, 54 Ib., 323; Foxy v. Coon, 64 Ib., 465.

And Mrs. Bogle’s attempted purchase from the auditor, at the same time, of the title to the northwest one-fourth of section 27 also operated merely a redemption. Robinson v. Lewis, 68 Miss., 69 . And as White, Collins, Lake and Mrs. Farish all hold and deraign title under Bogle, they stand clothed also with the disability attaching to a tenant in common of buying in the tax title, and setting it up adversely to their tenant in common, Greer, or his heirs, these appellants.

Bogle and wife made their deed to White and Collins November 28, 1881, and they went into possession confessedly before the expiration of the year allowed for redemption against Baker’s tax title, Baker having bought at tax sale March 7, 1881, and having conveyed to White and Collins March 11, 1882. It will thus be seen that White and Collins, after having been constituted, by their deed from Bogle and wife, November 28, 1881,' tenants in common with appellants, and the duties and *157 obligations arising from their character as such tenants in common thus fixed by said deed, and after having taken possession of said lands under said deed, as tenants in common, bought from Baker, on March 11, 1882, his tax title. It is clear that such purchase operated also merely a redemption. Jones v. Merrill, 69 Miss., 747 , and authorities supra.

It follows that the complainants have a clear and perfect title to one undivided fourth interest in fee simple to the south one-half of section 28, and the northwest one-fourth of section 28, township 19, range 4 west, in Sunflower county, Mississippi — the lands now before us.

The various statutes of limitations have no application as to this interest in these lands thus held under Bogle, the original cotenant with Greer. These parties are all bound by .the deed of Arrington, which, being of record, charged them with notice of Greer’s interest.

The deeds of the auditor to Bogle and wife, of March 24, 1871, conveying these lands; the deed of Bogle and wife, of November 28, 1881, to White and Collins, conveying south half of section 28 aforesaid; the deed of Baker, of March 11, 1882, to White and Collins, and the deed to Baker, of March 7, 1881; the deed in trust from L. A. and J. C. Bogle to Jno. W. Brady, trustee, of date September 6, 1877; the deed from Tarry, substituted trustee, to Lake and Marshall, of date August 16, 1880; the deed from Marshall to Lake, of date January 20, 1882; the deed from S. Gwin, auditor, to Lake and Marshall, of date March 8, 1882, and the deed from T. H. Lake to M. E. Farish, of date December 15, 1888, all set out in the record, are hereby canceled and annulled, so far as they affect the appellant’s one-fourth interest in said lands.

The finding of the chancellor that W. G. Greer was, at the filing of the bill, over twenty-two years of age, is manifestly erroneous. The testimony of Bettie Greer and of her mother, Mrs. Thomas, speaking with the ‘ ‘ record of births ’ ’ in the family Bible before her, indisputably show that W. G. *158 Greer was born October 23, 1867, and she was, hence, not barred by the one year’s statute provided by §§ 531, 572, code 1880. W. G. Greer is, therefore, clearly entitled to one undivided one-twelfth interest in fee in north one-half of northeast one-fourth of -section 28, attempted to be conveyed by A. B. Smith to T. H. Collins by deed of date February 24, 1886, said land having been sold to 'the state on March 7, 1881, and bought from the state by said Smith, September 11, 1885. W. G. Greer is entitled to redeem her one-twelfth interest in said lands, and the said deeds just enumerated, to the state March 7, 1881, and from the state to A. B. Smith, of September 11, 1885, and Smith’s deed to Collins, of date February 24, 1886, are hereby canceled and annulled so far as they affect W. G. Greer’s undivided one-twelfth interest in said land.

The bill pi’ays for discovery and an account. The court below will have an account stated between appellants and ap-pellees, on full proof, not being bound by the exaggerated estimates attached to the answers of White and Collins as exhibits. The substantial rights of complainants are to be secured, as well as of respondents; and the fact that complainants called for discovery must be taken in connection with the fact that an accounting was called for, but has not been had. Complainants are not, in the attitude of this case, bound by the discovery, imperfectly and insufficiently made, and the exhibits in which it is contained.

The court below will carefully distinguish, in stating the account, between the rights of all the complainants to the one-fourth of south one-half of section 28, and northwest one-fourth of said section, and of W. G. Greer’s one-twelfth interest in north one-half of northeast one-fourth of section 28. As to the former, the three complainants are simply bound to return the sums paid for taxes, with six per cent, interest. Their one-fourth interest stands redeemed by the sales referred to. They will also be chargeable with the real value, .as shown on full proof, of such improvements as are permanent, and are entitled to one-fourth *159 of all rents of said lands. W. G. Greer, on the contrary, comes to redeem the said one-twelfth interest, under the terms prescribed in § 531, code 1880.

We will only add that the court below may, if the lands can be so divided as to give complainants their one-fourth in unimproved lands, if it deems it most consonant with equity, allow complainants to take their one-fourth in such unimproved lands, so as not to be improved out of their estate.

Decree reversed, and decree here accordingly as indicated, and cause remanded for an accounting on the principles indicated.