In Meyers v. American Oil Co., 192 Miss. 180, 5 So.2d 218 (1941), however, the Supreme Court allowed a grantee with constructive notice of a defect in the grantor's title to invoke the doctrine of after-acquired title.Summary of this case from Mills v. Damson Oil Corp
December 20, 1941.
Where a husband and his family were residing on noncontiguous leased property when husband executed a deed of trust covering land to which he subsequently acquired title, such land was not husband's "homestead" when deed of trust was given.
That husband had no title to land when he gave plaintiff a deed of trust purporting to cover the land, and that husband and his family at a subsequent date had moved upon land and were making it their home when husband acquired title, did not warrant treating deed of trust as becoming operative as of date of acquirement of title by husband, and deed of trust was not void on ground that wife did not join in its execution.
The grantor and all persons in privity with him are "estopped" from afterwards denying that, at the time his deed of conveyance was executed, he was seized of property which his deed purported to convey, and mortgages and deeds of trust are within such rule, and the rule is extended by statute to quit claim deeds (Code 1930, sec. 2125).
The effect of the doctrine of "estoppel by deed" is the same as if in the deed itself, or in the mortgage, there had been inserted the express provision that it conveyed not only all title then possessed by grantor in property therein described, but all that he might thereafter acquire, and such estoppel runs with the land.
The relationship between mortgagor and mortgagee is such that neither shall do anything as respects the trust property which will impair rights of the other or embarrass enforcement of those rights.
A mortgagor is allowed to retain possession of mortgaged property until condition broken, or, more generally, until foreclosure, but upon the trust necessarily implied that he will not do or permit to be done anything which will lessen sufficiency of security or in derogation of its availability as such.
A mortgagor who did not own mortgaged land when deed of trust was executed, but who subsequently acquired title to land, could not impair mortgagee's rights by asserting a homestead in land, which was allegedly established after mortgagor acquired title, as against mortgagee.
APPEAL from the circuit court of Jasper county, HON. EDGAR M. LANE, Judge.
Jeff Collins, of Laurel, and Joe A. McFarland, Jr., of Bay Springs, for appellants.
Under the holdings in the case of Hinds v. Morgan, 75 Miss. 509, 23 So. 35-37, the verdict should have been for the appellant. Why should this appellant be in any less favorable position to claim his right to this place as his homestead than Hinds was in the case supra? Or the parties in the other cases cited in the Hinds case? They claimed property not contiguous to the property they were actually living upon with their families. The criterion by which their rights as exemptionists was determined was that the property was used and occupied by them every day to make their living. The law makes no discrimination against the man that happens to have his place in the edge of a country town.
In the case of Baldwin et al. v. Tillery, 62 Miss. 378 (1884), the requisites for a homestead are discussed fully and the extent to which a homestead may be used is given.
See, also, 26 Am. Jur. 51, sec. 83.
In the Baldwin case, supra, a building used exclusively for business purposes located on the same parcel of land as the place of residence and separated from the residence was held by the court to be a part of the exempt homestead and free from execution, etc.
This court has most always followed the universal policy of courts in construing most liberally the homestead laws and rights.
Although it might be contended that Henry (Dutch) Meyers could not avail himself of the title acquired after the execution of the deed of trust, appellants earnestly submit to this court that the deed of trust executed by her husband, Henry (Dutch) Meyers, while neither of them had any title whatsoever to this property, cannot affect Mrs. Henry (Dutch) Meyers' veto power as a wife to homestead property acquired subsequent to the execution of this deed of trust.
In determining whether the appellant, Mrs. Henry (Dutch) Meyers, has this veto power, the court's attention is called to the fact that she has in no ways or means waived her power of veto, nor has she done anything that would estop her from setting it up. When the deed of trust was given there was absolutely no legal title vested in Henry (Dutch) Meyers, or herself, and therefore no necessity for her joining in the execution of said instrument. Before title was again vested in either of appellants, this property was unquestionably converted into their place of permanent residence and homestead; and she has done nothing to prohibit her from setting up her homestead and veto rights subsequent to the vesting of title in her husband. Appellants submit to this court that the minute legal title was vested in Henry (Dutch) Meyers in the month of July, 1940, the homestead rights claimed herein by Mrs. Henry (Dutch) Meyers were vested in her and these rights rendered the purported foreclosure of the deed of trust by appellee void insofar as it conflicts with her present right to continue the use and occupation of said property as a place of residence.
Hannah, Simrall Foote, of Hattiesburg, for appellee.
We respectfully submit that the sole question involved in this case is answered in favor of the appellee by the plain provisions of the Homestead Exemption Statute.
See Section 1766 of the Code of 1930, as amended by Chapter 18 of the Laws of the Extraordinary Session of 1931.
It is also true that the appellants were actually occupying the property as their homestead in November, 1940, when the deed of trust was foreclosed; but this fact affords no relief for the appellants, since the rights of the parties were indelibly fixed by the situation that existed back in September, 1938, when the deed of trust was executed.
One of the appellants' counsel, Hon. Jeff Collins, rests the appellants' entire case upon the decision of this court in Hinds v. Morgan, 75 Miss. 509, 23 So. 35. We are in thorough accord with the law as announced in that case, but the pronouncements of that case have no application to the facts of this case.
Counsel says that the deed of trust was void when given, because the record legal title did not then rest in the husband and that, consequently, the validity of the deed of trust must be determined, not by the facts that existed when the deed of trust was given, but by the facts that existed when the legal title was vested of record in the husband. It is sufficient answer to say that the question of legal title of record or lack of legal title of record could in no way change the rights of the parties, as the subsequent record legal title acquired by the husband automatically inured to the benefit of the appellee. If this position be sound, then any person who gives a deed of trust on land and purports to convey a fee simple title, when, in fact, he owns a lesser title, could defeat his own contract by his own voluntary act to the prejudice of his creditor who had dealt with him in good faith.
There was an agreed statement of facts which we will here copy in lieu of a statement thereof to be made by us:
"It is agreed by and between the attorneys for the plaintiff and defendant that the defendant, Henry (Dutch) Meyers is a resident citizen of the Second District of Jasper County, Mississippi, and has been since 1931, and living with his wife and family as the head of the family; that on the 11th day of June, 1931, the defendant Henry (Dutch) Meyers bought and acquired by deed the property sued for herein by the plaintiff and since this time he and his wife have been using the said property as a place of business for the support of the family; that on September, 1938, he executed a deed of trust without his wife joining in the execution of it to the plaintiff, the American Oil Company, but he and his wife remained in possession of it; that on the 17th day of May, 1932, defendant deeded the said property to his wife, Elsie Meyers, which deed was recorded; that on the 30th day of Sept., 1937, Mrs. Meyers and her husband deeded the said land to Sue Ann Blackwell, for a loan of money, and the defendant remained in possession of said land and went on using it as before this deed was made; that on ____ day of July, 1940, Sue Ann Blackwell deeded the said land back to Henry (Dutch) Meyers; that on the 12th day of November, 1940, the said land was sold under the deed of trust given to the plaintiff, American Oil Company, when the plaintiff bought it in and took the title from the trustee in the deed of trust in itself; that then this suit was brought to oust the defendants from the possession; the justice of the peace gave judgment for the defendants upon the claim that the property was the homestead of the defendants, and the deed of trust was void because the defendant's wife did not join in the execution of the deed of trust.
"It is further agreed that the defendants all the time from the first purchase of said property until August, 1939, lived on a piece of property they had rented a short distance from this property in dispute, and had no other property in their name, except the property in question, and occupied no other property, except the property they had leased in this property, which they were using as place for their support, and the maintenance of their family; the family took daily their dinner and supper at the place in dispute, and took their breakfast at the place they had rented and slept at the place where they had rented; that the husband and wife both worked at the said place, wherein they had a restaurant and other business; that they claimed the said property as has been all the time their homestead, but they have never made any record declaration of it; that in August, 1939, they moved all their household goods into said property, and have lived there since, and installed butane gas and fixed it up generally for their dwelling; that the property occupied under the lease was not directly contiguous to the property in question, but was about three fourths of a mile distance therefrom."
It is the first contention of appellants that, under the particular facts, the property should be considered their homestead at the date of the deed of trust to appellant, although the family was at that time actually residing on the non-contiguous leased property three quarters of a mile away; and appellants quote at length from Hinds v. Morgan, 75 Miss. 509, 23 So. 35. A case more nearly in point is Nye v. Winborn, 120 Miss. 1, 81 So. 644. Without extending the discussion on this question, about which so much has already been written by this Court, we say no more than that in our opinion the property in controversy was not the homestead of appellants at the time the deed of trust was given to appellee by the husband.
The second contention of appellant seems to be that because the husband had no title to the property at the time he gave the deed of trust, and because the family at a subsequent date had actually moved upon the property, and was making it their home at the time the husband acquired his subsequent title, the deed of trust should be made to operate as of the date of the subsequent acquirement of the title by him, and therefore void because there was no joinder in its execution by the wife.
Nothing is better settled in this state than the rule that the grantor and all persons in privity with him shall be estopped from ever afterwards denying that, at the time his deed of conveyance was executed, he was seized of the property which his deed purported to convey, and that mortgages and deeds of trust are within this rule. By statute, sec. 2125, Code 1930, the rule is extended even to quit-claim deeds. The effect of this doctrine of estoppel by deed is the same as if in the deed itself, or in the mortgage, there had been inserted with valid force the express provision that it then and there conveyed not only all the title then possessed by the grantor in the property therein described, but all that he might thereafter acquire; wherefore to give that full and adequate efficacy to the rule which its nature and reasons require, there must be included as inherent in it the element that any after-acquired title, so far as concerns the grantor and his privies, relates back as of the date of the original deed — or, as sometimes phrased, the estoppel runs with the land.
And as between mortgagor and mortgagee there is a further consideration: The relationship between mortgagor and mortgagee is such that neither shall do anything as respects the trust property which will impair the rights of the other or embarrass the enforcement of those rights. The mortgagor is allowed to retain possession of the property until condition broken, or more generally until foreclosure, but upon the trust necessarily implied that he will not do or permit to be done anything which will lessen the sufficiency of the security or in derogation of its availability as such. A leading case on this subject is Clark v. Baker, 14 Cal. 612, 76 Am. Dec. 449.
Had appellant Meyers owned the complete title to the property at the time he gave the mortgage to appellee, the same not then being a homestead, none would contend that thereafter he could establish a homestead thereon, and thereby intercept the enforcement of the mortgage. Under the principles set forth in the foregoing paragraphs, the legal situation remains the same as respects a subsequently established homestead asserted in conjunction with an after-acquired title. To suggest that a grantor who conveys property without title thereto may afterwards maneuver himself, or those in privity with him, into a more advantageous position as respects that property than he could have occupied had he had complete right and title at the time of the conveyance, would be to propose that which upon its face carries its own refutation.