Reddoch v. Williams

92 So. 831, 129 Miss. 706

Opinion

Sykes, P. J.,

delivered the opinion of the court.

This suit, was begun in the chancery court of Warren county by Marie and Joseph Reddoch, minors, by their next friend, against the appellees (defendants in the lower court) for the partition of a certain plantation named the Haynes Bluff plantation, situated in Warren county. In their bill the complainants set forth their claim of title each to an undivided one-twenty-fourth interest in the plantation. In the answer their claim is denied, and defendants claim further to be purchasers for value without notice. The defendants by cross-bill ask that the claim of complainants be cancelled as a cloud upon their title. The cause was tried upon pleadings, exhibits, and an agreed statement of facts, and the claim of the complainants was cancelled as a cloud upon the title of defendants, from which decree this appeal is here prosecuted.

The facts are undisputed, and we are confronted purely with questions of law.

The claim of the complainants rests upon the following facts:

In 1885 Mrs. Nancy Simmons, the owner of the Haynes Bluff plantation, died. Paragraph 1 of the codicil to her will .is as follows:

“First. I give and devise to Mrs. Bettie Cowan, my daughter, and wife of J. J. Cowan; and her children now living or hereafter born, one undivided half (J4) interest. . . . in the Haynes Bluff plantation. . . ,”

The other one-Wlf interest of this plantation Avas devised to her grandchildren Anna Elizabeth, Nancy Hndnall, and Annie Hare/ólm Simmons. When the codicil Avas Avritten and at the tini/e of the death of the testatrix, Mrs. Bettie Cowan had only two children living, Iavo daughters, Annie Laurie Cowan and Kate J. CoAvan, who Avere the only children ever born to Bettie CoAvan. In 1889 Bettie OoAvan executed a deed whereby she attempted to convey to her daughter Annie Laurie Barton an undivided one-half of a one-sixth interest to this plantation, and in the same deed conveying the other undivided one-half of a one-sixth interest to her other daughter, Kate J. Middleton, for her life, the remainder at her death to her child or children in fee. That -’part of the deed relating to the interest conveyed to Annie Laurie Bailón pertinent to this inquiry is as folloAvs:

“. . . The said Bettie S. Cowan does by these presents give, grant, convey, and warrant to her said daughter, Annie Laurie Barton, an undivided one-half (J4) of the said one-sixth (1/6) interest of,' in and to the said tract of land, linoAvn as the Haynes Bluff plantation, to have and to hold the same to the said Annie Laurie Barton for and during the term of her natural life, Avith remainder at her death to her laAvful child or children in fee; if she leaves any one or more surviving her; and, if she leaves none, then to her sister, the said Kate J. Middleton, until her own child, Barton St. Clair, shall become of lawful age, and then to him in fee; provided, that, if the said Kate J. Middleton should die before her said son, Barton St. Clair, becomes of laAvful age, then the said interest in said land shall revert to and vest in the grantor herein in fee; and, if she be dead, then to Nancy and Annie Simmons, children of her brother, Benjamin Simmons, in equal shares in fee simple.”

The one-sixth interest devised to Anna Elizabeth upon her death became vested by inheritance in her sisters Annie TTarcolm Simmons and Nancy Boss, each inheriting an undivided one-half interest. This one-half interest inherited by Nancy Boss Avas by her in 1895 conveyed to An nie Laurie Reddoch. In 1896 Annie Láiirie' Reddoch by deed conveyed to D. Bunch a one-half of a 'bne-sixth undivided interest in this property. This was the\>ne-half interest purchased from Nancy Ross. Later on Tjiat same year Annie Laurie Reddoch by warranty deed fox, valuable consideration conveyed to the same grantee Bbnch, bv particular description this plantation, which description is followed by these words: 1

“It is the intention of this conveyance to convey to said grantee all the interest of the grantor in and to the Hayne^ Bluff plantation in said county whether correctly de-r scribed above or not, said interest having been acquired', by said grantor under the will of Mrs. Nancy Simmons.” i

In 1900 Kate J. Bentley, nee Cowan, by warranty deed' conveyed to D. S. Burns a one-fourth interest in this plantation. This deed contains the following clause:

“It is the purpose and intention of this deed to convey and warrant to said D. S. Burns an undivided one-fourth interest in and to all the lands belonging to the Haynes Bluff plantation and all the lands belonging to Nancy Simmons at the time of her death not since disposed of by heirs and all the interest in said plantation inherited by the undersigned Kate J. Bentley from her mother, Mrs. Bettie Cowan.”

In 1904 Annie Laurie Reddoch disappeared, and is therefore presumed to have died in 1911. It is further agreed that Bettie Cowan died intestate in 1890, leaving as her heirs at law her two daughters, Annié Laurie Barton and Kate J. Middleton; that Annie Laurie Barton was the mother of only two children, namely, the complainants in this case.

The deed from Bettie Cowan to her two daughters, Annie Laurie Barton and Kate J. Middleton, was not recorded in Warren county until just before the bringing of this suit. It is also shown by the record that the defendants and those under whom they claim have been in possession of this plantation at least since 1896. It is unnecessary to set out in detail the chain of title of other defendants.

Briefly stated, it is the contention of the appellants that, under the codicil of the will of Nancy Simmons, Bettie Cowan and her two daughters, Annie Laurie and Kate J., each became vested with a fee-simple title to a one-third of an undivided one-half, or a one-sixth, undivided interest in this plantation; that by the Bettie Cowan deed she gave for life to her daughter Annie Laurie a one-half of this one-sixth, or a one-twelfth interest in this plantation, with remainder in fee to her two children, thereby vesting in these two children (the complainants) an undivided one twenty-fourth interest in this plantation, which interest they now hold, and are therefore entitled to have these lands partited.

This case Avas submitted to the court some time ago and has received at our hands a most careful consideration. We think it best for an understanding of this dpinion to take up and dispose of the questions as they are presented in the briefs of counsel. '

It is the contention of the appellee that this codicil to the will of Nancy Simmons devised a life estate to Bettie CoAvan Avith remainder in fee to her children; that this is made manifest because the devise is to unborn as well as children uoav living. The appellant contends that this created a fee-simple estate in Mrs. Bettie Cowan and children, in equal parts as tenants in common. As a matter of fact Mrs. CoAvan had at the time the codicil was written and at the time of the death of the testatrix but these two children. Mrs. Cowan and these children, as tenants in common, Avere devised in fee simple an undivided one-sixth interest in this plantation. In the language of the court in the case of Brabham v. Day, 75 Miss. 923, 23 So. 578, we think that the plain and obvious interpretation of the Avords of the codicil rests the fee in these three devisees as tenants in common. While there is a minority view to the effect that, where a devise includes unborn children, the contention of the appellee is correct, yet the vast ma jority of the courts hold, and in our judgment the sound view is, that the fee is devised to them as tenants in common. In fact, to hold otherwise would be to violate the unambiguous meaning of the codicil. There is a very interesting note in which the authorities are reviewed found in L. R. A. 1917B, 49 et seq.

It is next contended that the deed of Bettie Cowan was violative of section 2765, Code of 1906 (section 2269, Hemingway’s Code), and that under this section Annie Laurie Bartpn was vested with a fee-simple title to a one-twelfth undivided interest in the plantation. From a reading of the pertinent parts of this deed, which are set out above, it will be noted that this deed vests a life estate in Annie Laurie Barton with remainder at her death to her lawful child or children in fee. By these words there is no attempt whatever to create an estate tail. The usual words for creating such an estate are not used in this deed. This remainder is not limited to the heirs of her body as would be necessary in order to create an estate tail. It therefore follows that the first part of this section is not violated because no attempt was made to create an estate tail; consequently it is not converted into an estate in fee simple. It is not necessary to decide whether the second part of this section is violated.

It was the purpose' of Bettie Cowan to give a life estate to Annie Laurie Barton with remainder in fee to Annie Laurie’s child or children. This Avas thq dominant purpose and intent of the grantor of the deed. This Avas a complete disposition of the property. Therefore, if other limitations Ado!ate the statute, it is the duty of the court to hold valid those dispositions Avhich do not violate the statute, and in this case the remainder in fee to these two appellants does, not do so. This rule has been recognized in this state. We' find it alluded to in the latter part of the opinion of the court in the case of Gully v. Neville (Miss.), 55 So. 289, in the folloAAdng language:

“Another most ingenious effort to save the Avill is made by reference to the Avell-settled principle that, if the ulte rior limitation is void, nevertheless the will may be saved by dropping that ulterior limitation and leaving the rest of the will to stand. But this doctrine, a thoroughly well settled one, is subject to the necessary qualification that the principle cannot be applied where you cannot separate the ulterior limitation without interfering with the manifest purpose of the testator, as shown by the whole body of the will. ...”

This rule was recognized in the first opinion of the court in the case of Henry v. Henderson, 101 Miss. 751, 58 So. 354. On page 760 of 101 Miss., on page 357 of 58 So., it is said:

“In this connection we desire to say that, though an ulterior limitation of the estate devised is void, the whole provision, on that account, will not be declared void; but, upon the other hand, that portion of the will will be sustained in so far as it does not offend against the principal of perpetuities.”

While a suggestion of error was sustained and this cause differently decided as shown in 103 Miss. on page 48, 60 So. 33, we do not understand that the court meant in any way to modify the above quotation as to the law; in fact, a careful consideration of the second opinion' will show that the court necessarily recognized this as the true rule.

This rule"is thus stated in 22 A. & E. Ency. of Law (2 Ed.), p.723:

“Where an interest of estate is given by a deed or will with a limitation over on a specified contingency, such limitation, if it violates the rule against perpetuities, is for the purpose of determining the effect on the prior disposition of the property to be considered as stricken out, leaving the prior disposition to operate as if the limitation over had never been made.”

Again on the same page: “In accordance with the general rule which lias just been stated, where a disposition of property or of an interest therein is followed by a limitation over, the prior disposition is not invalidated by the fact that the limitation over is void for remoteness.”

This rule is thus well stated in the case of Church of Brattle Square v. Grant, 3 Gray (Mass.) 142, 63 Am. Dec. 725: “Upon this point we understand the rule to be that, if a limitation over is void by reason of its remoteness, it places all prior gifts in the same situation as if the devise over had been wholly omitted.”

21 R. C. L., p. 320, section 54: “When a part only of a gift- is invalid by reason of the rule against perpetuities, and the invalid limitation is an essential part of the general scheme of the will or gift, the several parts of the devise or the grant are treated as inseparable, and the whole is adjudged void. But where the various provisions of a will are in fact independent, and not for the carrying out of a common or general purpose, those which are contrary to the rule may be rejected, and the valid provisions upheld. The test is whether the rejected parts may be 'expunged without essentially changing the general testamentary scheme.”

In the third edition of the Rule Against Perpetuities by Gray it is there stated that: “If future interests created by any instrument are avoided by the rule against perpetuities, the prior' interests became what they would have been had the limitation of the future estates been omitted from the instrument. Thus, if an estate is given to A. for life, remainder to his children and their heirs* but, if the children all die under twenty-five, then to B. and his heirs, the limitation to B. is too remote, and the children of A. lake an indefeasible fee simple.”

From these authorities it follows that the conveyance to these two appellants in fee in the deed was not a violation of this statute, and was a valid conveyance.

It will be recalled that this deed of Bettie Cowan was not of record in Warren county. She died intestate leaving as her sole heirs at law Annie Laurie Reddoch, mother of these complainants and Kate J. Bentley (nee Cowan). It will also be recalled that Kate Bentley in 1900 by deed conveyed an undivided one-fourth interest in this plantation to D. S. Burns. This deed of Kate Bentley conveyed all of the apparent interest vested in her in this plantation at that time, namely, the one-sixth interest devised her by the will of Nancy Simmons and the one-half of the one-sixth interest apparently inherited by her as one -of the two heirs at law of Bettie Cowan. The deed from Bettie Cowan conveying life estates to her two daughters, Annie Laurie and Kate J., Avith remainder to their children, was not of record.

The appellees contend that they and those through whom they claim title are purchasers of these lands for a valuable consideration Avithout notice, and that under sections 2784 and 2787, Code of 1.90G (sections 2288 and 2291, Hemingway’s Code) the Bettie CoAvan deed is void. Section 2784, among other things, provides that a conveyance of land shall not be good against a purchaser for valuable consideration without notice unless properly acknowledged and lodged Avith the clerk of the chancery court for record. Section 2787 upon this question provides that conveyances of lands shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice unless properly acknowledged and lodged with the chancery clerk for record. It is admitted in this case that the Bettie Cowan deed Avas not lodged Avith the chancery clerk for record. The important question then presents itself Avhether or not these defendants are purchasers for válue without notice. The record shows that they had no notice of the Bettie Cowan deed. It is the contention of the appellant that these defendants were not purchasers from Bettie Cowan, and that these registry statutes only protect purchasers from the vendor in the unrecorded deed. This court had uniformly so held, the rule being as follows :

“The creditor, too, or purchaser, must be a creditor of, or-purchaser from, the grantor in the unregistered deed.” Dixon v. Cook, 47 Miss. 220; Miss. Valley Co. v. Railway Co., 58 Miss. 846; Chaffe et al. v. Halpin et al., 62 Miss. 1.

The appellees, hoAvever, claim that a purchaser from the heirs at laAV of a deceased person is protected by these stat utes, because the heirs at law, so far as the title to real property is concerned, stand in the shoes of and occupy the exact position of the deceased grantor. This exact question has not heretofore been decided by this court to our knowledge. This position of the appellees, upon reason and justice and the vast majority of adjudicated decisions in this country upon this point, is in our judgment correct. It is the duty of a prospective purchaser of lands to investigate the records pertaining to this title. He is charged with constructive notice of their contents. From these records he ascertains who the apparent owner is. If a previous owner of these lands be dead, he looks for a will, and, in. the absence of a will devising these lands, he ascertains who the heirs of the deceased are. In the absence of a will, these heirs are the apparent owner's of the land. They occupy the same position with reference to the title to this land that their ancestor, the grantor in the deed, occupied. This rule is stated in A. & E. Ency of Law (2 Ed.), vol. 24, p. 121, as follows:

“A purchaser from the heir of a grantor in a prior unrecorded conveyance is as much entitled to protection as if he had purchased directly from such grantor. A contrary doctrine was upheld in a few early cases, but these decisions Avere based on a clear misconception of the purposes of the recording acts.”

23 R. C. L. p. 249 states the rule thus: “An unrecorded deed is made noneffective as against a bona-fide purchaser Avho purchases without notice thereof from any one who in reality Avould possess the absolute title if it were not for the unrecorded instrument. In case of the death of the grantor in an unrecorded deed the heir becomes the apparent owner of the legal title, and it is equally important and equally as just that Ihe public may be alloAved to deal with him as Avith the original grantor, if living, and the general rule is that a purchaser from the heirs or representatives of a vendor, if he purchases and pays for the land, Avithout actual or constructive notice of the previous sale, is as fully within the spirit and equity of the recording acts as a second purchaser from the vendor himself.”

In Ann. Cas. 3.93.2B, there is an exhaustive case note on page 3289 wherein the authorities are collated. The holding in these cases is thus summarized:

“The question presented in the reported case is whether the rule that an unrecorded deed is ineffectual as against a subsequent bona-fide purchaser from the same grantor is applicable Avhere the subsequent purchase is from the heir of the original grantor. As in the reported case, the decisions passing upon this question have generally answered it in the affirmative. The rule may therefore be stated to be that, where a bona-fide purchaser of or from heirs complies with the requirements of the recording acts, he acquires a good title as against the grantee in an unrecorded deed from the ancestor.”

We therefore conclude that a purchaser for value without notice from the heirs of a grantor in a prior unrecorded deed is protected by these laws.

It is insisted however, for the appellant that these ap-pellees are not purchasers for value without notice:

First, because the deed of Annie Laurie Reddoch to Bunch only conveyed to him the interest in this plantation- acquired by her under the will of Mi*s. Nancy Simmons. Annie Laurie Reddoch made two conveyances to .1). Bunch. Before making them she owned the following interests in this plantation: First, a one-sixth undivided interest in fee devised her in the Nancy Simmons will; second, a life estate in a one-twelfth undivided interest, with remainder to her two children (the appellants) acquired by deed from her mother Bettie Cowan; and, third, a one-twelfth undivided interest in fee acquired by deed from Nancy Ross. Her first deed to Bunch conveyed the interest acquired from Nancy Ross, then leaving her with the two interests numbered 1 and 2, supra.. Owning these two interests in 3890, she made what purports to be a warranty deed to 1). Bunch describing the Haynes Bluff plantation. The particular description of this plantation is followed by tlie words above quoted. At tbe time of tliis conveyance Annie Laurie Reddoch was the real owner in fee of a one-sixth undivided interest as stated above. She was the apparent owner in fee of an undivided one-twelfth interest inherited from her mother, Bettie Oowan, as an heir at law, or in other words, so far as the record title is concerned, she apparently owned a one-sixth plus a one-twelfth or a one-fourth undivided interest, the same amount as her sister, Kate J. Bentley, owned. The clause in this deed states that it is the intention of the grantor to convey all of her interest in this plantation. So far this is perfectly clear and unambiguous and would certainly convey .this one-fourth undivided interest. However, this language is followed by this expression: “Said interest having been acquired by the grantor under the Avill of Mrs. Nancy Simmons.”

Strictly speaking, only this one-sixth interest was acquired immediately under the will of Nancy Simmons. However, Bettie Cowan, her mother, acquired her interest under the will of Nancy Simmons, one-half of which interest upon the death of Bettie intestate apparently passed to Annie Laurie, so she immediately acquired under the will of Nancy Simmons a one-sixth interest in this plantation and remotely acquired by virtue of this will a one-twelfth interest apparently; inherited from her mother. In this deed there was a good general granting clause, clear and unambiguous, of all of her interests in this plantation, followed by the somewhat ambiguous clause referring to this interest as having been acquired under the Nancy Simmons will. The rule announced in Barksdale v. Barksdale, 92 Miss. 166, 175, 45 So. 615, 617, is thus stated:

“The true principle here is this: That a good general grant will never be limited by a subsequent particular description unless it is'manifest that this particular description was meant to operate as a limitation; and this intention, that it shall so operate as a limitation, must be definitely expressed in the terms used in the particular description.”

Again, on page 176 of 92 Miss., on page 617 of 45 So.:

“Whatever is expressly granted, or covenanted, or promised, cannot be restricted or diminished by subsequent provisions or restrictions; but general or doubtful clauses precedent may be explained by subsequent words and clauses not repugnant or contradictory to the express grant, covenant, or promise.”

That it was her intention to convey all of her interest in this plantation to Bunch is further shown by the fact that after its execution she made no claim whatever to the ownership of any interest in it.

The second contention of the appellant upon this question is that, since there was a purchase only of her interest in the plantation, the appellees are not innocent purchasers for value without notice, citing 39 Cyc. 1694. That portion of text relied upon is as follows:

“If the deed purports and is intended to convey only the right, title, and interest in the land, as distinguished from the land itself, it comes within the strict sense of a quitclaim deed and will not sustain the defense of innocent purchaser.”

The following section, however, upon the same page, Avhich relates to the effect of registry acts, reads as follows :

“It is held in most jurisdictions that the rule that a purchaser by a quitclaim deed is not to be regarded as a 'bona-fide purchaser without notice of a prior incumbrance has no application where the registry laws require the recording of such incumbrance in order to make it a lien on lands in the hands of a subsequent purchaser” — citing very many authorities, among others that of Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 426, 37 L. Ed. 350.

In that case this question is discussed, and it is there held that, where a purchaser without notice for a valuable consideration received a quitclaim deed to lands, he is a purchaser for value under registry laws and protected by them. We think this is the correct doctrine, though in this case this is not. a quitclaim deed.

These appellees by deeds from Annie Laurie Reddock in D. Bunch and from Kate J. Bentley to Burns acquired from these grantors the apparent interest inherited by them from their mother, Bettie Cowan. They had no notice of this unrecorded deed, and these interests were purchased for a valuable consideration. They are therefore purchasers for value without notice under these two statutes, and this unrecorded deed of Bettie Coivan is void as to them.

The chancellor so held, dismissed the bill, and cancelled the claim of these appellants as a cloud upon the title of appellees. This decree was correct and is affirmed.

Affirmed.