Harris v. Byers

73 So. 614, 112 Miss. 651

• Court: Mississippi Supreme Court
• Decided: October 15, 1916
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

This is an appeal from the chancery court of Oktib-beha county from a judgment overruling a demurrer to the hill; an appeal being granted to settle the principles of the case. The appellant Henderson Harris was formerly owner of the land in controversy, and conveyed to Horace Byers, father of the appellee, the tract of land described as “all of the land lying east of the Starkville & Macon.Road containing forty acres, more or less, and known as the fractional southwest quarter of the southwest quarter of section 33, township 18, range 15.” Afterwards Horace Byers conveyed to the appellee, Henry Byers, “the land described as the north end of fractional southwest quarter of southwest quarter of section 33, township 18, range 15, containing four acres, with the house on it.” At the time of the first conveyance there was a deed of trust given by Henderson Harris on the above lands, which were afterwards sold, and one D. A. Saunders purchased at the trustee’s sale, and afterwards sold to Henderson Harris and his wife, Sarah Harris. Sarah Harris is the daughter of Horace Byers, and after his death took possession of the property conveyed to Horace Byers by Henderson Harris, and was in possession at the time the suit was brought, and, the bill alleges, had been for about eight years. The deed from Henderson Harris to Horace Byers was a warranty deed. The bill prays for a cancellation of the claims as against the appellee’s four acres of land, and for an accounting for rents during the eight-year period in which the appellants have been in possession. The bill also sets out that Sarah Harris and Henderson Harris bought from D. A. Saunders the property in question, did not pay anything for the same, and that Sarah Harris was made a grantee for the purpose of depriving the appellee or the complainant of his right and title to the land. The appellants demurred to the bill on the ground principally that the bill did not show perfect title in the complainant and that the deed by which complainant claims title is void upon its face, and that the bill states no cause of action. The main reliance of the appellants to secure a reversal is that the deed is void.

The description of the deed from Horace Byers to Henry Byers is good. -See Selden v. Coffee, 55 Miss. 41; Swan v. Union Mortgage & Security Co., 75 Miss. 912, 23 So. 627; Goodbar v. Dunn, 61 Miss. 618.

Henderson Harris conveyed warranty title to Horace Byers, and, there being at the time of said warranty an outstanding deed of trust through which he now claims- title, and having obtained title subsequent' to said conveyance through said deed of trust, the title so acquired operates to his grantee and his assignees.

If Horace Byers did not own the entire north end of the southwest quarter of the southwest quarter, his conveyance of four acres off the north end of said subdivision would operate to carry four acres of land off the north end of whatever land he owned in said subdivision.

It follows from the foregoing that the judgment of the chancellor is affirmed, and the cause is remanded for further proceedings.

Affirmed and remanded.