Nelson v. Ratliff

72 Miss. 656

• Court: Mississippi Supreme Court
• Decided: March 15, 1895
• Status: Published

Opinion

Cooper, C. J.,

delivered the opinion of the court.

By the deed of May 2, 1877, John Nelson divested himself of the entire legal estate in the lands thereby conveyed to W. H. H. Green, trustee. Subject to the debts primarily charged upon the land, he limited the beneficial interest therein to himself for life, with remainders to his five children, or to such of them as should not, during his life, dispose of their interests, with an ultimate limitation over to himsel-f, if all his children should, during his life, dispose of their interests in the land. It does not appear that the conditions on. which this ulterior limitation Avas to take effect ever existed, and there remained no estate in John Nelson, legal or equitable, which passed to his heirs at law by descent upon bis death. Whatever interest they had in the land, they took by the deed, and not by descent. By the conveyance to Green, a trust was created in favor of the beneficiaries named therein, and thereafter it ivould not have been within the power of the grantor and trustee to revoke or annul the deed. Isham v. Railway Co., 11 N. J. Eq., 227; Andrews v. Hobson, 23 Ala., 219; Roberts v. Lloyd, 2 Beav., 376. Green, the trustee, having accepted the trust and proceeded in its execution, could not, thereafter, by his own act or default, bring the trust to an end. 27 Am. & Eng. Enc. L., 321; Skipwith v. Cunningham, 8 Leigh (Va.), 211; 31 Am. Dec., 642; McArthur v. Gordon (N. Y.), 12 Law. Rep. Ann., 667; Cruger v. IIalliday, 11 Paige, 314; Brennan v. Wilson, 71 N. Y., 502; Henderson v. Sherman, 47 Mich., 267; Henderson v. Winchester, 31 Miss., 290; Perry on Trusts, § 274."

The facts that Green failed to interpose in the active defense of the proceeding instituted by Kells to foreclose a prior in-cumbrance, and that he afterwards permitted Kells to remain in the undisturbed possession of the land, claiming it under the sale m pcds by the heirs at law of the deceased trusted in the prior incumbrance, did not, and could not, terminate his relation of trustee for the beneficiaries named in the deed by which the property was conveyed to him. Notwithstanding his delinquency, the legal title remained in-him, and the statute of limitations began to run against him and in favor of Kells from the time that the latter, claiming under the deed, entered into the adverse possession of the land. If the trustee was barred by the statute of limitations, so also were the beneficiaries he represented. Code 1880, § 2694; Weir v. Monahan, 67 Miss., 434.

It is contended for appellants that they are not precluded from recovery by the bar of the statute of limitations, (1) because the evidence does not establish the fact of an adverse holding' by Kells and those claiming under him for the statutory period; (2) because, if the fact of such adverse holding is established, Kells and his representatives cannot invoke it against appellants, for the reasons (1) that Kells was a purchaser pen-dente lite; (2) that he had recognized the trust created by the deed from John Nelson to W. H. H. Green, and had participated in the fund arising under that trust, wherefore he could not afterwards repudiate it and enter into an adverse possession which the law will recognize as sufficient to put the statute in operation against the other beneficiaries until they are distinctly informed of the repudiation of the «trust and the assertion of the hostile titlp.

1. The evidence abundantly supports the finding of the fact involved in the decree of the chancellor, that Kells and his representatives have held adverse possession of the property for more than ten years subsequent to the adoption of- the code of 1880, and before the cross bill in this cause was exhibited.

2. Repeated consideration of the record has failed to impress us with the view that the principles of Ms pendens are at all applicable to the facts involved. So far as the facts are relevant to the controversy in this phase, they are as follows: Jobn Nelson, to secure a debt to Kells, executed a deed of trust to John E. Tarpley, as trustee, conveying the property in controversy, and giving the trustee power to sell the same and apply its proceeds to the payment .of the debt secured. After-wards Nelson executed another deed of trust to Green, trustee, on the property covered by the first, and some other, and by it provided that Green should take charge of the property, and from the rents derived therefrom pay off certain debts due by Nelson, including that to Kells, and, the debts being paid, should pay the rents to Nelson during his life, and, at his death, should convey the property to Nelson’s children (the appellants), as tenants in common. Nelson died in 1880, and Tarpley, the trustee in the first deed, having also died, Kells exhibited his original bill in this cause against the heirs at law of Tarpley, and against Green, the trustee in the second deed, and against the beneficiaries therein, seeking foreclosure of the deed of trust to Tarpley, trustee. Process was served upon some of the defendants, against whom decrees pro oonfesso were taken. In this condition of the proceeding, Kells, being advised that the heirs at law of Tarpley could execute the power of sale conferred by the deed, procured them to make the sale, and took no further steps in the suit. Under this sale, he entered into the possession of the property on January 11, 1881, and has held the same, under adverse claim, from that time. On September 21, 1891, the defendants against whom pro oonfesso had been taken, and those not served with process, filed their answer (an order having been secured setting aside the decrees pro oonfesso), which they made a cross bill against the executors of Kells. By this cross bill they seek to have him dealt with as a mortgagor in possession, and call for an account of the rents he has received from the property, and, the account having been taken, they pray that they may be permitted to redeem by paying any balance found to be due. The executors answered, setting up, among other defenses, the bar of the statute of limitations of ten years. In reply to this defense, the appellants contend that, as Kells had not entered an order dismissing his bill, the cause was, and yet is, a pending suit; that he was a purchaser pendente lite, and cannot .avail of the' bar of the statute of limitations, for the reason that the statute did not run during the pendency of the suit instituted by him to foreclose the deed of trust under which he now claims as purchaser.

The rule of Us pendens seems to have had its origin in the common law, but to have been formulated in one of the ordinances or rules established by Lord Bacon for the administration of equity jurisdiction. The twelfth rule was as follows: “No decree bindeth any that cometh in Iona fide by conveyance from the defendant before the bill exhibited, and is made no party, neither by the bill, nor the order; but when he comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of the court; then, regularly, the decree bindeth; but, if there were any intermissions of the suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.” Bennett on Lis Pendens, §§ 1-11. In its origin the rule seems to have been applicable only to those who purchased from the defendant, and now its most usual operation will be found in such cases. In proper cases, however, it is equally applicable as against a purchaser from the plaintiff. But we must not lose sight of the principle upon which the rule is based, nor so extend its operation as to confer new rights instead of protecting those already existing. The question involved in this cause seems to be, rather, whether by his act in exhibiting his bill, Kells thereby misled the defendants into the belief that he did not intend to attempt to have the sale1 m pais by the heirs of the trustee, and should, for that reason, be estopped to rely upon a title thus acquired, than that of Us pendens. None of the defendants to his bill had filed an answer thereto, and decrees pro confesso had been taken against those served with process. The court had neither taken the property into its possession, nor had any of the parties litigant prayed that it should do so. The simple question involved was whether the mortgage should be foreclosed by sale of the mortgaged property, and that the complainant was then entitled to such relief there seems to have been then no controversy. Nor is that right shown to have been then a doubtful one, by the facts now disclosed. If a stranger to the litigation had gone into possession of the property, claiming it adversely, either under a conveyance from the complainant or another stranger to the suit, and remained in sucli possession for the period required by law to secure a perfect title, it could not be true that the mere pendency of the suit would preclude him from relying upon the title arising from prescription. Kells stood in no worse attitude, so far as the doctrine of lis pendens is concerned, than a stranger would, for when the rule of Us pendens applies, ° it operates against the world. The difficulty in the claim of •the defendants now asserted by their cross bill is that it has arisen and become barred by lapse of time pending the suit, and rests upon the collateral and extrinsic circumstance that Kells put himself in the position of a mortgagee in possession by entering under what may have been a void trustee’s sale. It is not a question of preserving the status quo, but of defeating the operation of the statute of limitations which applies to a posses-' sion adverse and hostile in character and imputes to the possessor the legal title after the lapse of the statutory period. When the suit was instituted by Kells, the possession of the property was in those holding under Nelson or his trustee, Green, and this possession was not disturbed nor attempted to be, by the complainant. While the suit was pending, Kells, it may be by wrong, entered into the possession of the land. But his entry was under claim of title, and the lapse of time operating on the possession held by him and those claiming under him, by virtue of the statute, imputes to him the legal title. It is this title which the defendants seek to attack, and they are met by the obstacle that the title, originally imperfect, has been protected from assault by the lapse of time. We find nothing in the record supporting the view that the defendants were misled by the conduct of Kells, nothing by reason of which he shall be estopped to rely on the statute, and are of opinion that the rule of Us pendens is not applicable under the circumstances of this case.

The fact that Kells received from Green,. the trustee, payment of interest upon his debt, does not show that he waived or intended to waive, the benefit of his prior security. Nelson had a right to make payment to Kells, either personally or through the hands of another, and the receipt by Kells of such payments did not affect his claim under the prior incumbrance.

The decree is affirmed.