Watson v. Vinson

Reed, J.,

delivered the opinion of the court.

This case involves the title to section 34, township 16, range 2 west, in Holmes county. In 1875 the land was oymed by James T. Williams. In that year it was assessed to him. On March 4, 1878, it was sold by the sheriff and tax collector of Holmes county for the nonpayment of taxes for 1877, and purchased by R. H. Watson. On October 5, 1878', R. H. Watson conveyed it to Dr. J. H. Watson. On February 7, 1880, James T. Williams, who owned the bottom title to the land, conveyed it to Peter Simmons. On March 3, 1880', Mr. Simmons conveyed an undivided one-half interest therein to W. A. Drennan. Messrs. Simmons and Drennan then borught suit to recover the land from Dr. J. H. Watson. This case appears to have been compromised, and on November 22, 1881, Messrs. Simmons and Drennan conveyed the land to Mrs. Abbie T. Watson, the first wife of Dr. J. H. Watson, for the consideration of six hundred and forty dollars. On December-15, 1881, Mrs. Watson and her husband executed a deed of trust on the land to secure a loan of six hundred and forty dollars, “money advanced for the purchase price” thereof.

Dr. J. H. Watson married Miss Abbie Vinson, his first wife, in January, 1880', and she died in January, 1884, leaving surviving her three infant children, the oldest being about three years old, and the youngest about one week. In 1886 Dr. Watson remarried; his second wife being Miss Fannie Smith. On February 17, 1887, there was a sale of the land under foreclosure of the deed of trust, and it was purchased by Dr. Watson, who took the title in his own name. In 18-78 the land was uncleared. Soon after the conveyance to him of the tax title, Dr. Watson began to clear and improve it. He continued in the use and control of the land till his death, which occurred July 11, 1912. For a time he resided *608 on the land. This property was devised by him to his second wife, Mrs. Fannie M. Watson, who survived him.

Appellees, who are the children of Mrs. Abbie T. Watson, the first wife, knew nothing of the deed from Messrs. Simmons and Drennan to their mother till after the death of their father. Soon after acquiring this information, they brought suit in chancery seeking to be declared owners, each of one-fourth undivided interest in the land'and praying for partition.

Dr. Watson had from time to time executed deeds of trust on the land to secure loans. At the time of his death several of these were unpaid, among them the deeds of trust in favor of appellants William Wormack and the Colonial & United States Mortgage Company.

The chancellor upon hearing sustained the bill of complaint,. decreed a sale for partition, and restricted the incumbrances to the one-fourth undivided interest which it was held was the share of Dr. Watson. The chancellor held that the tax deed to E. H. Watson was void. This appellants claim to. be error. The tax sale was made under the assessment in 1875. By act of the legislature approved March 6, 1875 (chapter 26, Laws of Mississippi of 1875), the tax assessors of the several counties were required to return their assessment books to the clerks of the board of supervisors on or before the 1st day of June, 1875, and annually thereafter. The tax assessor of Holmes county failed to comply with this law in 1875. There was a second session of the legislature in 1875 which was convened on July 27, 1875. By act approved July 31, 1875 (chapter 3, Laws of Mississippi Called Session 1875), the tax assessors in the counties where the assessment rolls had not been received and approved were required to file such rolls with the chancery clerk on or before the fourth Monday of August, at which time the board of supervisors were required to meet to receive, revise, correct, and equalize the rolls, and that certified copies be forwarded to the auditor on or before the last Monday in Sep *609 tember, 1875. This statute was not complied with. Tbe land rolls in Holmes1 county were not received by the board until tbe September meeting, 1875. Then the fourth Monday of September was set as tbe time to bear objections and equalize tbe assessments. Tbe land roll was sent to tbe auditor and filed with him in two parts, tbe first containing lands in town following tbe September bearing, and tbe second purporting to contain the balance of tbe lands in December, 1875. There was no approval by tbe board of supervisors of tbe land roll in 1875 or 1876.

It is contended by tbe appellants that an act of tbe legislature passed February 26, 1876 (chapter 149' of tbe Laws of Mississippi of 1876), cured tbe errors in tbe 1875 assessment. This act was for tbe purpose of authorizing tbe making of corrections on assessment rolls because they were “full of errors, informalities and improper assessments.” Tbe board was empowered to ■order a new assessment of tbe real estate, or could make corrections and equalizations on tbe rolls then in use. No new assessment was ordered in Holmes county in 1876, and tbe roll of 1875 was not approved. Tbe only information we have of tbe board doing anything with land assessments in that county in 1876, the courthouse of tbe county and all records therein having been destroyed by fire in 1893, is from several loose sheets in tbe state auditor’s office which contain a certificate by tbe chancery clerk that they constitute a copy of tbe changes and reductions in land assessments made by tbe board at tbe July term, 1876'. There is nothing to show on these sheets that tbe board held a meeting at tbe time specified for tbe purpose of correcting the roll and equalizing tbe, same. On tbe sheets referred to it is only shown that certain reduction were made in certain individual assessments. ¡ Tbe dealing with tbe roll in 1876, as shown in this case, is not curative of tbe errors in 1875. There is nothing on these sheets to show *610 approval of the roll. This should be done by order of the board of supervisors, and there is no order. It is. in proof that no order of approval was made in either 1875 or 1876. The errors in the assessment of 1875 have not been cured.

. We do not see any error of the chancellor in holding that the tax deed failed for the reason that, quoting from the final decree:

“The land tax roll upon which said sale was based was not filed and approved in the manner provided by law.” Stovall v. Conner, 58 Miss. 138 ; Fletcher v. Trewalla, 60 Miss., 963 ; Mitchum v. McInnis, 60 Miss., 945 ; Carlisle v. Chrestman, 69 Miss., 392 , 12 So. 257 ; Carlisle v. Goode, 71 Miss., 455 , 15 So. 119 ; Preston v. Banks, 71 Miss. 602 , 14 So. 258 .

Appellants claim that appellees are barred by the three-year statute of limitations (section 539, Rev. Code 1880;). The statute did not begin to run until one year from the day of the sale, which put it in operation March 4,1879. Before the expiration of the three years the deed had been made to Mrs. Abbie T. Watson, the first wife-of Dr. Watson, by which she was conveyed the legal title to the land by the owners thereof. This conveyance followed, and apparently was in settlement of an action brought by such owners to recover the land from Dr. Watson. It is shown that the transaction whereby the legal title was vested in his wife was conducted and consummated by Dr. Watson. ■ Surely it was his purpose to make his wife the legal owner of the land. Tie may have gone into possession and claimed the land under the tax title which he at the time believed to be good, but it is clear that, when it became necessary to purchase the good title to the land, it was taken in the wife’s name, and from then on the holding and occupation was properly under her title. Only a few days after the conveyance to Mrs. Watson, her husband joined her in executing a deed' of trust on the very land to secure a loan for' the purchase money paid Simmons and Dren-. *611 nan, the grantors. Under the facts of this case it cannot be said that Dr. Watson was holding and claiming the land adversely and against his wife. The three years’ actual occupancy was interrupted when Dr. Watson purchased the land for his wife, and the. title became vested in her.

Dr. Watson did not acquire full title to the land1 at the sale in foreclosure of the deed of trust given by his former wife, then deceased, and himself. When Mrs. Watson died in 1884,, intestate, her three children,, all very young, and her husband, were her heirs at. law, and they together inherited the land, each receiving an equal interest. His purchase of the land under-the deed of trust inured to the. benefit of all the cotenants. The title remained in the four as before the-sale.

Dr. Watson did not obtain entire title through adverse possession against his cotenants. These cotenants were his own children. When they, with their father, acquired title upon the death of their mother, they were mere babies. They were still very young when their father remarried, and still in early childhood when he attempted to obtain title by purchase in his own name at a foreclosure sale. They were certainly for some years after this in his household, subject to his control, under his care, and entitled to his support and guidance. There could be no running of the statute of limitations against them until they reached their majority. Then because of the relation of cotenancy, there must be proof of an ouster. We do not find this. In the beginning the father’s holding was certainly for his children as well as himself. We do not find it shown that there was any change in the manner of his possession and use. It was the same after his children grew up as when they were young. He never-told his children that the legal title to the land was ini their mother when she died. It has not been shown that; *612 the father at any time, by notice or act, expressed to his children thaat he was claiming exclusive possession, and denying their right.to any interest. There is no proof of repudiation or disavowal by Dr. Watson of the relation of cotenancy with his children. No hostile occupancy has been shown. The facts in this ease do not show that Dr. Watson, the parent, secured for himself the whole title to the land by adverse possession against his children.

It is claimed that appellees are estopped from questioning the rights of the loan holders to subject the entire title in the land to the collection of their indebtedness secured by deeds of trust executed by Dr. Watson. Appellees were in complete ignorance of their rights. They did not know until after their father’s death, of the conveyance to their deceased mother, and that they inherited interests in the land from her and were cotenants with their, father. The decision of this case as to this point is controlled by the holding of the court in the case of Mortgage Co. v. Bunckley, 88 Miss. 641 , 41 So. 502 . In that case it was claimed that one of the parties was estopped by conduct, because he was at the home of his father when the agent of the mortgage company was there to inspect the land for a loan of money to the father, who claimed to own all of the title thereto, and that he knew of the proposed loan, and was silent as to any claim of his own to the land. Deciding that this did not constitute an estoppel, the court, speaking through Special Judge Campbell, said: ' “The question is: Is he estopped by his silence? The truth is he did not know that he had any interest in the land. As stated by counsel for the mortgage company, ‘It was not considered in the family at that time, nor until after 1893, that the children of Nathan had any interest whatever in the property in controversy.’ His ignorance of his rights precludes the claim of estoppel by his mere silence. 11 Am. & Eng. Ency. Law, 433, 434b," and cases cited; Pomeroy, Eq. Jur., sec. 805; *613 Houston v. Witherspoon, 68 Miss. 190 , 8 So. 515 ; Hignite v. Hignite, 65 Miss. 447 , 4 So. 345 , 7 Am. St. Rep. 673 ; 7 Ballard on Real Property, p. 40. Apart from this, it is by no means certain that he knew of the loan being effected, and if he did, he was under no legal obligation to assert his claim, to interfere with the success of his father’s application for a loan.”

Appellants rely upon the case of Smith v. McWhorter, 74 Miss. 400 , 20 So., 870 , to sustain their position concerning the estoppel of appellees. It was therein decided, quoting from the headnote, that:

“A tenant in common who purchases the joint estate under a deed of trust will hold the same as trustee for all the tenants; but adult cotenants, with knowledge or sufficient information to charge them with knowledge, must elect within a reasonable time to hold the purchaser as a trustee; otherwise those who acquire rights in the property from him in good faith will be protected.”

In that case it appears that the parties were all of age when the arrangement was made by which the one tenant in common took the title in her name. In the case at bar appellees, the cotenants, were minors of tender years when the title by purchase at the trustee’s sale became vested in their father and cotenant.

Following the decision in the case of Mortgage Co. v. Bunckley, supra, we hold that appellees are not estopped.

Affirmed.