Summary
In Federal Land Bank of New Orleans v. Newsom, 175 Miss. 114, 161 So. 864, it appeared that Dr. T.C. Newsom died testate on July 13, 1906, leaving the following will: "I give and bequeath to my son Bruce D. Newsom during his natural life and then to the heirs of his body the lands in Panola County, Mississippi, described as Section 7, except the South half of the Southwest quarter, in Township 8, Range 9, comprising 560 acres more or less.
Summary of this case from Carter v. Sunray Mid-Continent Oil Co.Opinion
No. 31732.
June 3, 1935.
1. PERPETUITIES.
Will devising land to testator's son for life and then to son's bodily heirs held effective to make life tenant's children remaindermen in fee, notwithstanding statute limiting suspension of alienation where subsequent provisions in will were dependent on contingencies which did not in fact occur (Code 1930, section 2114; Code 1892, section 2436).
2. WILLS.
Portions of will which violate statute limiting suspension of alienation are rejected and valid portions are enforced, if enforcement is practicably possible and will not defeat dominant purpose of will (Code 1892, section 2436).
3. VENDOR AND PURCHASER.
Statute making "conveyances" void as to purchasers for value without notice of lands in any county wherein conveyance is not recorded held inapplicable to "wills" (Code 1930, sections 2146, 2147).
4. WILLS.
"Will" differs from "conveyance" in that conveyance takes effect and is irrevocable on delivery, whereas will, although delivered, is not effective until death of testator and in meantime is revocable.
5. WILLS.
Statute providing that authenticated copies of wills may be recorded in any county is not mandatory (Code 1930, section 1613).
6. EVIDENCE.
Court may take notice of fact that it has not been the practice to record domestic wills in counties other than that of original probate (Code 1930, section 1613).
7. MORTGAGES.
Domestic will when probated and recorded in county in which testator resided at time of death constituted notice throughout state to subsequent mortgagee of land in Mississippi devised by will, without necessity of recording will in county wherein land was situated (Code 1930, sections 1599, 1613, 1629, 2146, 2147).
8. LIFE ESTATES.
Life tenant who entered into possession under will granting him life estate only, could not, as against remaindermen, acquire fee-simple title by procuring forfeited tax titles.
9. TAXATION.
Mortgagee who paid delinquent taxes and redeemed mortgaged property from tax sale held subrogated to lien of state for taxes, as against remaindermen, though mortgagor at time of giving deed of trust had only life estate in property.
ON SUGGESTION OF ERROR. (In Banc. Feb. 24, 1936.) [166 So. 345. No. 31732.]APPEAL AND ERROR.
Contentions not decided by chancellor and not necessarily involved in matters he did decide, and not raised or argued in briefs or oral arguments before Supreme Court, would not be considered by Supreme Court.
ETHRIDGE and McGOWEN, JJ., and SMITH, C.J., dissenting.
APPEAL from the chancery court of Panola county. HON. N.R. SLEDGE, Chancellor.
James McClure, of Sardis, for appellants.
The sole purpose of construing a will is to arrive at the intention of the maker and this intention must be determined from the whole instrument construed in light of the circumstances surrounding the maker and at the time of the execution thereof.
Henry v. Henderson, 103 Miss. 48, 60 So. 33.
The limitation contained in sub-paragraph "d" provides that in case of the death of one of said children without leaving any child living, the lands devised to such child who shall die without leaving a child is devised to the other two of the testator's children equally during their natural lives, which constituted a devise to more than two donees then living, which is prohibited by the statute and under the terms thereof the first donee takes a fee simple estate in the lands devised.
Section 2446, Code of 1892; section 2776, Code of 1906; Smith v. Muse, 134 Miss. 827, 98 So. 436.
The named devisees of the last will and testament acquired a fee simple title to the lands devised to them.
The statute law that was in effect at the time that Dr. Newsom died was brought forward into the 1930 code without change. The pertinent section of this code which provides in what county wills shall be proved is section 1599.
Sections 1613, 2146, Code of 1930; Carrollton v. North Carrollton, 109 Miss. 494.
A will, when established, transfers title to real estate as effectually as is done by the terms of a deed.
Klein v. McNamara, 54 Miss. 90, 105; Reddoch v. Williams, 129 Miss. 272, 92 So. 831.
Since a purchaser of land from the heirs of a grantor in a prior unrecorded deed is entitled to the protection of the recording acts, why would not a purchaser from the heirs of a testator in an unrecorded will not be protected under the recording statutes? I respectfully submit that the same reason and logic which support the court in upholding the rights of a purchaser from the heirs of a grantor in a prior unrecorded deed support and uphold the rights of a purchaser from the heirs of a testator whose will has not been recorded in the county in which the lands are situated.
Holland v. Nance, 102 Tex. 177, 114 S.W. 346; Belt v. Adams, 125 Miss. 387; Virginia Trust Co. v. Buford, 86 So. 356, 516.
A tenant for life cannot acquire a tax title to defeat the estate of the remainderman. That rule, however, does not apply to the facts alleged in the complainants' bill.
The following sections of the Mississippi Code of 1930 contain the law relative to the tax liens and the liability of property for taxes:
Sections 3120, 3121, 3122, 3264 and 3265; also see Grenada Bank v. Young, 104 So. 166.
The broad principles governing the doctrine of subrogation are well settled and liability upheld in this jurisdiction but in all the statements of the doctrine there is the exception that a mere volunteer is never entitled to relief. The problem therefore is to determine who is or is not a volunteer. A volunteer is one who has nothing to do with the transaction or who officiously intrudes himself without public or private invitation, into a matter which is none of his business, intermeddler. But to say that one who has nothing to do with the transaction is a volunteer, and, that on the other hand, one who has some legitimate concern therein is not a volunteer still does not fully cover the question for the latter statement in the converse would be no accurate summary of the rule.
Love, Supt. of Banks, v. Robinson, 137 So. 499, 161 Miss. 585; Robinson v. Sullivan, 102 Miss. 597, 59 So. 846; Staples v. Fox, 45 Miss. 667.
It has frequently been held that where a mortgagee has paid taxes which it was the duty of the mortgagor to pay, the mortgagee is thereby subrogated to the rights of the state which had a lien on the land for taxes. So one who in good faith or who pays taxes on property with the intention of protecting a lien thereon is entitled to be subrogated to the lien of the state or municipality, although the lien supposed to exist and for the protection of which the person pays the taxes does not in fact exist.
25 R.C.L. 1368, par. 51; Childs v. Smith, 51 Wn. 457, 99 P. 304, 130 A.S.R. 1107; Stone v. Tilley, 100 Tex. 487, 123 Am. St. Rep. 819; Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S.W. 593; Dunsmuir v. Port Angeles Gas, Water, E.L. P. Co., 30 Wn. 586, 71 P. 9; Beyer v. Investors' Syndicate, 31 N.D. 247, 153 N.W. 476.
A mortgagee who pays taxes to protect the mortgaged property is subrogated to the tax lien upon the property, and such lien is not subject to the operation of the statute of limitations, and the mortgagee is entitled to recover the tax payments, even though the mortgage be no longer enforceable.
Catlin v. Mills, 140 Wn. 1, 47 A.L.R. 545, 247 P. 1013; Utah State Bldg. L. Assn. v. Perkins, 53 Utah, 474, 173 P. 950.
The payment of taxes in good faith in protection of a claim of lien establishes an equitable lien upon the property for the amount so paid, and it is immaterial whether a mortgage under which the person paying taxes was claiming was valid or invalid.
Union Cent. L. Ins. Co. v. Chesterley, 100 Wn. 260, 170 P. 558; Gillette v. Oberholtzer, 45 Idaho 571, 264 P. 229; Aultman T. Co. v. Jenkins, 19 Neb. 209, 27 N.W. 117; Hudson v. Moon, 42 Utah 377, 130 P. 774 ; Goodnow v. Litchfield, 63 Iowa, 275, 19 N.W. 226, 123 U.S. 549, 31 L.Ed. 199, 8 Sup. Ct. Rep. 210.
Butler Snow and L.F. Easterling, of Jackson, for appellants.
The difference between a will and a deed is principally as to the time in which the conveyance will take effect. Sometimes it is difficult to determine whether an instrument is a deed or a will. In either case it is a transfer of property. There can be no difference in reason between a deed from A. to B. conveying certain property and a will from A. to B. conveying the same property. In either case it is a transfer of title and ownership and a necessary step or link in the chain of title. In the case of ejectment or a bill to try title the proof of one is just as essential as the proof of the other, and we submit that within the spirit, the reason and the letter of the statutes, a will is an instrument affecting the title to land and recordable in the county where the land is situated.
Section 1613, Code of 1930.
There is a presumption of intestacy.
Sielbeck v. Grotham, 248 Ill. 435, 94 N.E. 67, 21 Ann. Cas. 229.
Whenever the death of any person is shown, until rebutted, the presumption is that he died intestate, and that his estate descends in pursuance of the laws of inheritance.
Schmidt v. Brown, 226 Ill. 590, 80 N.E. 1071, 11 L.R.A. (N.S.) 457, 117 Am. St. Rep. 261; Warvelle on Ejectment 366; Lyon v. Kain, 36 Ill. 362.
It is a general rule that, in the absence of all evidence to the contrary, a person shown to be dead is presumed to have died intestate.
Sims v. Boynton, 32 Ala. 353, 70 Am. Dec. 540; Murphy v. Crowley, 140 Cal. 141, 73 P. 820; Stephenson v. Doe, 8 Blackf. 508, 46 Am. Dec. 489; Stokesberry v. Reynolds, 57 Ind. 425; McClanahan v. Williams, 136 Ind. 30, 35 N.E. 897; Pennsylvania Mort. Trust Co. v. Moore, 150 Ind. 456, 50 N.E. 72; Baxter v. Bradbury, 20 Me. 260, 37 Am. Dec. 49; Jacobs v. Fowler, 135 App. Div. 713, 119 N.Y.S. 647; Mitchell v. Thorne, 134 N.Y. 541, 32 N.E. 10, 30 Am. St. Rep. 699; Barson v. Mulligan, 191 N.Y. 306, 84 N.E. 75, 16 L.R.A. (N.S.) 151; Lyon v. Kain, 36 Ill. 362.
We apprehend that the above is the universal rule on this subject, so, therefore, appellant had the right to assume and presume that the decedent, T.C. Newsom, had died intestate, and the affidavits furnished and the application for the loan in question go further than is required under this presumption. All the appellant had to ascertain from the face of the record was that all of the heirs of T.C. Newsom had conveyed their interest in the land in that county to the party from whom they acquired title. Having ascertained this fact, and having acted thereon in good faith and for a valuable consideration, to wit, the loan of twenty thousand dollars, it should be protected by the recording statutes and by this presumption. Going further than the presumption, the said mortgagors to the appellant, in the application and in the affidavits furnished, showed that the decedent had died intestate, which fact was borne out, buttressed and supported by the records of Panola county.
Reddoch v. Williams, 129 Miss. 706, 92 So. 831.
It certainly seems to us most apparent on this record that the appellant is entitled to and should be protected, under the facts averred, to the full extent of the balance due upon its mortgage, and the amount expended thereunder. This, it seems to us, is simple, natural and substantial justice.
Virginia Trust Co. v. Buford, 86 So. 356, 123 Miss. 572; Belt v. Adams, 125 Miss. 387, 87 So. 666.
The Belt v. Adams case is certainly authority for holding that a will is effective as an instrument of conveyance of land, and also that an innocent purchaser who purchases without any notice of the will will be protected against the will. Of course, the converse of this proposition is that one taking with notice of the will, or of a deed for that matter, could not assert the rights of an innocent purchaser for value without notice.
Choteau v. Jones, 11 Ill. 300, 50 Am. Dec. 460; Anthony v. Wheeler, 130 Ill. 128, 17 A.S.R. 281.
An innocent purchaser for value without notice will be protected against any instrument affecting the title to land which is not recorded in the county where the land is situated. The same reasoning, the same justice, the same equity which applies to a deed would also apply to that of a will.
There certainly should not be different rules applying to different instruments when the instruments themselves operate as conveyances of title as steps in the chain of title.
It seems obvious that the real and true meaning and intent of the testator was that if any child left heirs of the body, the land bequeathed to such child should go in the descending stream to the heirs of his body in perpetuity.
It is axiomatic that a will takes effect from the time of the death of the testator and must be construed and is controlled by the law existing at the time of the death of the testator. The court in construing a will and applying the principles of law thereto will endeavor to look at it through the eyes of the testator as at the time of his death.
Rong v. Haller, 123 N.W. 471, 26 L.R.A. (N.S.) 825; Re Wilcox, 194 N.Y. 288, 87 N.E. 497; Gray Rule against Perpetuities 231; 28 R.C.L., 211, 213, 214, 215; Himmel v. Marshall, 294 Ill. 557, 128 N.E. 641, 13 A.L.R. 609.
Our two-donee statute is not a rule of construction but a rule of law. Courts use rules of construction to ascertain the purpose and intent of the testator, and when this intent is arrived at, then they measure it by the statute on perpetuities to determine whether or not the will is valid or invalid.
It is the universal rule that courts do not make wills for persons; they only construe them. Courts will not add to nor take away from the will. We believe that all the statutes governing the alienation of property in this state, when construed together, plainly evince the legislative idea that the intent of the testator was the primary object to be arrived at; that when construed and determined that a testator intended in the whole plan and purpose of his will to violate the two-donee statute or any other statute, then the effect of these statutes is to invalidate the entire will, being non-separable, and the property of the decedent be divided according to the laws of descent and distribution.
Reid v. Voorhees, 216 Ill. 236, 3 Ann. Cas. 946; Thompson v. Green, 145 Miss. 365, 110 So. 788; Reddoch v. Williams, 92 So. 831, 129 Miss. 706; Anderson v. United Realty Co., 79 Ohio St. 23, 86 N.E. 644, 51 L.R.A. (N.S.) 477; Johnson v. Delome Land Planting Co., 77 Miss. 15, 26 So. 360; Davenport v. Collins, 48 So. 733; Banking Co. v. Field, 84 Miss. 646, 37 So. 139, 51 So. 449, 96 Miss. 716; Wallace v. Wallace, 114 Miss. 591, 75 So. 449; Powell v. Brandon, 24 Miss. 342; Caldwell v. Willis, 57 Miss. 554; Dibrell v. Carlisle, 48 Miss. 691.
The principle that, though an ulterior limitation of an estate devised be void, the will may be sustained by dropping the limitation and leaving the rest of the will to stand, cannot be applied, where the provision cannot be separated without interfering with testator's manifest purpose as shown by the will.
Gully v. Neville, 55 So. 289; Smith v. Muse, 134 Miss. 827, 98 So. 436; Caldwell v. Willis, 57 Miss. 574; Ward v. Cooper, 13 So. 827, 69 Miss. 789; Nicholson v. Fields, 71 So. 900, 111 Miss. 638; Granberry v. Swayze, 140 Miss. 726, 106 So. 442.
The devise to Nathan W. Newsom, being a conditional devise to him in fee subject to being defeated by his dying without leaving a child living at the time of his death — as in the case of the other devisees, there is no clear devise to the children of the deceased son, in case he died leaving children, and the law will not imply such a devise. The courts will not undertake to make wills or to supply deficiencies therein unless it is manifestly required to carry the intent of the testator into effect.
Ball v. Phelan, 94 Miss. 293, 23 L.R.A. (N.S.) 895, 49 So. 956; Anderson v. United Realty Co., 51 L.R.A. (N.S.) 477.
It is our contention that the will here in question construed at the time of the death of the testator in 1906 in the light of what might happen and not what actually did happen, is void because it violates the two-donee statute, and, therefore, as to the property in Panola county, it is our contention that the decedent died as though intestate. It seems perfectly plain that in case any one of the children had died without leaving a living child, the dead child's land would have descended one-half of the life estate to each living brother and one-half of the fee in remainder in the heirs of the body of each living brother, and so on. It is, therefore, perfectly obvious that the will as drawn and correctly interpreted intended to pass the title in remainder beyond the lives of two donees then in being.
John W. Crisler, of Clarksdale, and Herbert Holmes, of Senatobia, for appellees.
Probate of will is notice in all counties.
Section 1599, Code of 1930.
The language of section 1599 is mandatory. Not so with the language of section 1613, which has to do with the recording of authenticated copies in any county desired.
Town of Carrollton v. Town of North Carrollton, 109 Miss. 494, 69 So. 179, 68 So. 483; State ex rel. Cowan, District Attorney, v. Morgan, 147 Miss. 121, 122 So. 865.
It will be observed that in the case just cited a public duty was involved and yet the court refused to construe the word "may" as "shall" and held that the statute vested a discretion in the Board of Supervisors. In the case at bar no public duty is involved, as was in the Carrollton case, and the statutes which are in pari materia with section 1613 indicate that this section 1613, which says that authenticated copies may be recorded in any county, indicates that it was not the intention of the legislature that the statute should be mandatory.
Section 2146, referring to the recording of conveyances, is in unmistakable mandatory language.
Reddock v. Williams, 129 Miss. 706, 92 So. 831.
A will is not a conveyance.
13 C.J. 902; 2 Words Phrases, page 1576.
The probate of Dr. Newsom's will in Tate county, his domicile, was effectual notice throughout the state.
68 C.J. 1226, par. 1088W; Carpenter v. Denoon, 29 Ohio St. 379; Rodney v. McLaughlin, 97 Mo. 426, 9 S.W. 726; Rodney v. Landau, 104 Mo. 251, 15 S.W. 962; Wolf v. Brown, 142 Mo. 612, 44 S.W. 733.
The will does not violate the statute against perpetuities.
Sections 2764, 2765 and 2776, Code of 1906; Section 2114, Code of 1930; Stigler v. Shurlds, 131 Miss. 648, 95 So. 635; Henry v. Henderson, 103 Miss. 48, 60 So. 33; Hawkins v. Hawkins, 72 Miss. 749, 18 So. 479; Halsey v. Gee, 79 Miss. 193, 30 So. 604; Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Davenport v. Collins, 95 Miss. 358, 48 So. 733, 96 Miss. 716, 51 So. 449; Thomas v. Thomas, 97 Miss. 697, 53 So. 630; Redmond v. Redmond, 104 Miss. 512, 61 So. 552; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Shannon v. Riley, 153 Miss. 815, 121 So. 808; Darrow v. Moore, 135 So. 484, 142 So. 448.
But let us assume for the sake of the argument that the will contains ulterior limitations which violate the two-donee statute. Conceding this to be true, the fee to the property still vests in the minor children of Bruce D. Newsom, since these ulterior limitations can be stricken out and the intention of the testator given full effect.
Reddoch v. Williams, 129 Miss. 706, 92 So. 831; Lazard v. Hiller, 145 Miss. 449, 110 So. 855.
No adverse rights are conferred by state patents.
Robert v. Lewis, 119 Miss. 628, 81 So. 481.
The Federal Land Bank is not entitled to subrogation for taxes.
60 C.J. 707, sec. 19B, and 708, sec. 21 (3); 61 C.J. 950, sec. 1227 (b); Ft. Dodge Building, etc., Assn. v. Scott, 86 Iowa 431, 53 N.W. 283; Marshall v. Beason, 165 S.W. 75; Bryant v. Nelson-Frey Co., 94 Minn. 305, 102 N.W. 859; Burkham v. Manewal, 195 Mo. 500, 94 S.W. 520; Iowa Homestead Co. v. Des Moines Navigation R.R. Co., 17 Wall. 153, 167, 21 L.Ed. 622; Adams v. Taylor, 149 Miss. 750, 115 So. 878.
Applying the principles announced in the above cases, it is apparent that subrogation does not lie in the case at bar. The Federal Land Bank was not only a mere volunteer, but its negligence in delaying an adjudication was such as to bring upon it the condemnation of the time honored maxim: "Equity aids the vigilant and not those who slumber on their rights."
Argued orally by L.F. Easterling and James McClure for appellant and by John W. Crisler and Herbert Holmes for appellee.
Dr. Thos. C. Newsom died testate in Tate county on July 13, 1906, the decedent having at the time a fixed place of residence in said county. Shortly thereafter his will was probated in that county. He left surviving him as his sole heirs at law his widow, Mrs. L.J. Newsom, and three minor children, namely, Thos. C. Newsom, Bruce D. Newsom, and Nathan W. Newsom. At the time of his death, Dr. Newsom, the testator, was the owner of several tracts of valuable land. So far as concerns the parcel involved in this case, the will devised the same as follows:
"I give and bequeath to my son Bruce D. Newsom during his natural life and then to the heirs of his body the lands in Panola County, Mississippi, described as Section 7, except the South half of the Southwest quarter, in Township 8, Range 9, comprising 560 acres more or less." There are subsequent portions of the will providing for contingencies, but since the contingencies mentioned have never happened and could not now affect the above specific devise, we omit any quotation of those provisions.
On the attainment of his majority, Bruce D. Newsom married and there were born to him two children, Mary Jane Newsom and Nancy Cavett Newsom, who now survive. Bruce D. Newsom died in 1928.
It must have been supposed theretofore that there was some question as to the validity of the will of Dr. Thos. C. Newsom; for it is found that on July 15, 1918, the widow quitclaimed to Bruce D. Newsom all her interest in the described land, and the two brothers, soon thereafter, on attaining their majority did the like. And while the land records of Panola county showed that Dr. Newsom, at the time of his death, was the owner of said lands except for the tax title now to be mentioned, the tax records disclosed that all of the land described was sold to the state in 1875 for the taxes due thereon for the year 1874. In the years 1919 and 1920, members of the Newsom family procured forfeited tax land patents from the state covering in the aggregate all said lands, which title or claim of title they conveyed to Bruce D. Newsom. All the deeds herein mentioned were duly recorded.
In 1924, Bruce D. Newsom applied to the land bank for a large loan on said lands and furnished an abstract of title thereto. The will of Dr. Newsom had not been recorded in Panola county, and the abstract did not disclose the existence of the will. The bank made the loan taking therefor a deed of trust on said lands in the belief that Bruce D. Newsom was the owner of a fee-simple title. After the death of Bruce D. Newsom, the payments on the loan became in arrears, and also the taxes thereon. The taxes were not paid for the year 1930, and on April 6, 1931, the lands were sold to the state for the said delinquent taxes. The taxes for the years 1931 and 1932 were not paid, and on April 5, 1933, the bank redeemed the tax sale and paid the remaining delinquent taxes.
On April 12, 1934, the bank filed its bill to foreclose the deed of trust, and to have included therein by way of subrogation a lien for the taxes paid as aforementioned. The bill sets up all the facts in ample detail. The defendants, the two children of Bruce D. Newsom, demurred to the bill, and from the ruling of the chancellor both sides were granted appeals.
The first point in controversy between the parties is the contention by appellants that the will of Dr. Newsom is void under the so-called two-donee statute, section 2436, Code 1892, in effect at the time of the execution of the will and at the death of the testator. There has, of course, never been any intimation anywhere that that statute made any interference with the right of a testator to devise lands to a certain person for life with remainder to the heirs of the body of that person. That the statute did not interfere with that right was, in effect, so held in Lazard v. Hiller, 145 Miss. 449, 110 So. 855, 112 So. 585, and it could not be held otherwise in view of section 2114, Code 1930, which is a re-enactment of the same section in previous Codes. Bruce D. Newsom was the life tenant named in the will, and as to this particular land the first donee thereunder, and his two children, Mary Jane Newsom and Nancy Cavett Newsom, are the immediate remaindermen in fee. The fact that subsequent portions of the will, providing for contingencies which as to these two children have never happened, might make the will void as to those claiming under a state of facts brought about by the contingencies, does not in the slightest affect the right and title of the two children above named as the remaindermen in fee upon the death of their father, the life tenant. The rule is that those portions of the will which violate the statute are rejected, while the valid portions are allowed to stand and are enforced, if practicably possible and so long as so to do will not defeat the dominant purpose of the will. Reddoch v. Williams, 129 Miss. 706, 92 So. 831; Lazard v. Hiller, supra. The two children above named have now taken, therefore, as remaindermen, a fee-simple title under the will, as it was the principal purpose of the will that they should do, so far as they are concerned. Stigler v. Shurlds, 131 Miss. 648, 95 So. 635.
The second point made by appellants is that because the will had not been recorded in Panola county in which county the lands here in question are situated, the will was ineffective as an instrument of title as against appellant bank which took the deed of trust without actual notice of the existence or contents of the will. It has been decided in this state that a foreign will is ineffectual as to lands in this state unless and until the will has been probated in this state, Virginia Tr. Co. v. Buford, 123 Miss. 572, 595, 86 So. 356, 516, but the exact question now before us has not been decided by our court, nor by any other Supreme Court, as counsel for both sides inform us after a diligent search among all the reported cases.
Appellants argue that a will is the equivalent of a conveyance; and that since sections 2146, 2147, Code 1930, make unrecorded conveyances void as to purchasers for value without notice of lands in any county wherein the conveyance is not recorded, the failure to record the will in Panola county entitles the bank to the protection of those sections. A will differs from a conveyance in vital particulars among which is that a conveyance takes effect and is irrevocable upon delivery, whereas a will although delivered is not effective until the death of the testator and in the meantime is revocable. The authorities generally agree that a will is not a conveyance. See cases cited, 13 C.J., p. 903, note 78.
Appellants rely also upon section 1613, Code 1930, which in its concluding sentence provides that "authenticated copies of such wills may be recorded in any county in this state;" and they argue that the word "may" in that sentence should be construed as meaning "shall." The conditions which require a court to construe the legislative word "may" as meaning "shall" are not present here. In addition, we may take notice of the course of practice in legal matters, and in so doing we know that in the long length of years during which this provision has been a part of the statutes it has not been the practice to record domestic wills in other counties than that of the original probate, except for convenience, as, for instance, where subdivisions of many lots are being sold to many different purchasers, and a will lies back of the chain of title to all the several lots or parcels.
When an examiner of a land title finds that the title has come down by mesne conveyances from the government to John Doe, and the succeeding conveyance in the chain of title is from the heirs at law of John Doe, three questions present themselves to the examiner of the title: (1) Did John Doe leave unpaid probated debts which stand as a charge against the land in the hands of the heirs? (2) Did John Doe die testate or intestate? and (3) If intestate, who, in actual fact, were or are his heirs at law? In order to ascertain the facts upon the first inquiry, it is necessary to examine the record of estates in the office of the chancery clerk of the county where the deceased had at the time of his death a fixed place of residence. Section 1629, Code 1930. And that is exactly the same county where the will of the deceased will be found if the deceased died testate, and in the same file of estate papers. Section 1599, Code 1930. And these same papers will often disclose the names of the heirs at law. Since the examiner is obliged, at his peril, to examine the estate papers in the estate of John Doe in the county in which John Doe at the time of his death had a fixed place of residence, and which will disclose the probate of the will, if there be any will, there is no substantial reason for any mandatory requirement that the will be recorded in other counties, and we hold that it is not so required. A domestic will, when probated and recorded in the county in which the testator had at the time of his death a fixed place of residence, is notice throughout the state, without the necessity of recording the will in any other county.
The third point involved is the contention by appellants that although B.D. Newsom had only a life estate under the will, he obtained a fee-simple title through the forfeited tax titles of 1875 acquired by him in 1919 and 1920. There is but little said in the argument on this subject, and we will deal with it only briefly, and to the effect that appellants' contention is not well taken. During the continuance of the life estate, a life tenant who has entered into possession under the deed or devise granting to him the life estate cannot acquire outstanding hostile claims against the title under which he went into possession, and this applies equally to any person holding under the life tenant. This is the general rule under the weight of authority, some of the cases so holding being found in 21 C.J., p. 942, notes to sec. 74. This rule runs so strongly that it is said that "a tenant for life cannot acquire an outstanding paramount title and gain any rights as against the remainderman by claiming thereafter to hold by adverse possession unless it appears that he has clearly renounced all claim as tenant to the knowledge of the remainderman." 17 R.C.L. p. 643.
The fourth point is the prayer by appellants that the bank be reimbursed by way of subrogation in respect to the taxes paid by the mortgagee, and we think the chancellor was correct in upholding that prayer. There is respectable authority to the contrary, but both upon principle and the weight of authority, we prefer the rule that where a mortgagee pays the taxes on the mortgaged property to preserve the title from forfeiture to the state or to an individual tax purchaser, the mortgagee will be subrogated to the lien of the state or municipality although the lien for the protection of which the mortgagee paid the taxes turns out to be an invalid lien. 25 R.C.L., pp. 1368, 1369; Childs v. Smith, 51 Wn. 457, 99 P. 304, 130 Am. St. Rep. 1107; Stoops v. Bank, 146 Ark. 127, 225 S.W. 593; Utah, etc., Ass'n v. Perkins, 53 Utah, 474, 173 P. 950; Gillette v. Oberholtzer, 45 Idaho, 571, 264 P. 229; Aultman Co. v. Jenkins, 19 Neb. 209, 27 N.W. 117; Goodnow v. Litchfield, 63 Iowa, 275, 19 N.W. 226; Litchfield v. Goodnow's Adm'r, 123 U.S. 549, 8 S.Ct. 210, 31 L.Ed. 199. It may be that in an exceptional case the rule of justice would not require the stated subrogation, but we do not think the facts here present an occasion for an exception.
Affirmed, and remanded.
ON SUGGESTION OF ERROR.
Upon the coming in of the suggestions of error, and upon examination of them, it was determined to remand this case to the docket for consideration and determination by the full court in banc. Upon such consideration the court has unanimously concluded that the original opinion published in 161 So. 864-867, is correct so far as concerns the first, second, and third points therein decided; and the majority has concluded that the fourth point dealt with in the original opinion also was correctly decided and dealt with in that opinion, so that the said original opinion stands as written.
The point was raised in our consultations that to uphold and apply the doctrine of subrogation in respect to the taxes paid by appellant would be to allow appellant now to foreclose and sell said property under said tax lien, whereas the former remaindermen who had become the owners of the fee at the time of the tax sale and the payment of the taxes necessary to redeem, being infants at said time, would otherwise have had a period of two years beyond their coming of age in which to have redeemed and thereby to have paid all the taxes involved herein. It is true that as a general principle a party is not entitled to the right of subrogation in respect to the payment of taxes if to be used in such manner as to shorten the time within which the primary taxpayer otherwise could discharge the obligation, Love v. Robinson, 161 Miss. 585, 591, 137 So. 499, 78 A.L.R. 608, but at most that consideration as applied to this case would operate only (1) to postpone the time when the foreclosure of the tax lien held by appellant could take place, or (2) to require the foreclosure to carry the same privileges of redemption which the minors would have been able to exercise had the taxes not been paid, or (3) to require some other such arrangement in the decree as will preserve the equities of all parties in the respects mentioned. It would not affect the existence of the lien itself.
But these points were not decided by the chancellor, and evidently were not raised in the hearing of the demurrers before him, for it has not been mentioned either in the briefs or in the oral arguments before us. In affirming and remanding, we will leave entirely open for argument before the chancellor and for his conclusions and decree thereon the points mentioned under the foregoing numerals. He has not decided those points, and to attempt to pass on them here would be to review matters not decided by the chancellor, not necessarily involved in what he did decide, and not raised or argued by any of the parties.
Affirmed and remanded.
In this case the life estate had terminated by the death of the life tenant before the payment of taxes by the mortgagee of the life tenant. Consequently, the mortgagee had no further interest in the property; was a stranger so far as the taxes were concerned; and was a pure volunteer, having no interest to protect or duty to perform with reference to the estate.
It is well settled that a person who volunteers to pay the taxes for another has no rights against the property taxed or its owner.
It is true the bank may have thought it was paying the taxes to protect the fee, but it had notice of the exact estate of the mortgagor in its chain of title, and is charged with all that appears therein and all that reasonable inquiry would disclose.
The case of Griffing v. Pintard, 25 Miss. 173, clearly shows that there is no subrogation in favor of one who pays the taxes for another.
I think the judgment should be reversed and the bill dismissed in this case.
McGowen, J., and Smith, C.J., concur in this dissent.