Lincoln v. Mills , 191 Miss. 512 ( 1941 )

DISSENTING OPINION. In my opinion the suggestion of error in this case ought to be sustained and the judgment appealed from reversed and judgment rendered here for appellant.

The controlling opinion states the material facts. There is no dispute about them. Under those facts it would be most unjust, unfair, and dishonest on the part of both the husband and the wife to permit her to acquire title against him by adverse possession or otherwise and thereby defeat his mortgagee when without dispute he owned the land at the time the first mortgage was taken. Husband and wife living together as such are one. They occupy a relationship of trust toward each other. There could be no such thing as adverse possession between them to the extent of affecting his mortgagee. Title by adverse possession of the land cannot be acquired unless such possession is open and notorious. Nor, on account of such trust relationship, can one acquire title from the other by conveyance. It is true there is no decision of our Court directly in point sustaining that view, but there are numerous cases announcing principles which mean exactly that. To illustrate: The cases holding that a tenant in common cannot acquire title against his co-tenant either by adverse possession or otherwise; the relation of trust between them prevents it. Shelby v. Rhodes, 105 Miss. 255, 62 So. 232, Ann. Cas. 1916D, 1306. The land owned in common tenancy, sold under a deed of trust given by a former owner, purchased by one of the co-tenants inures to the benefit of all. Beaman v. Beaman, 90 Miss. 762, 44 So. 987. If one of several co-tenants of land subject to a life estate buys in a tax title to the land, he will obtain an absolute title to the life estate but will hold the fee in trust for the co-tenants. Fox v. Coon,64 Miss. 465, 1 So. 629. If one of several tenants in common purchases the land at a tax sale, either by himself or through a third person, the title thus acquired inures to the benefit of all the co-tenants. Hardy v. Gregg (Miss.), 2 So. 358; Cohea v. Hemingway, 71 Miss. 22, 14 So. 734, 42 Am. St. Rep. 449. The husband of a co-tenant of lands cannot acquire title as against her co-tenants by purchase at a tax sale, for the reason that the law imputes to him knowledge of the facts which would make such a purchase by her void as against her co-tenants. Robinson v. Lewis, 68 Miss. 69, 8 So. 258, 10 L.R.A. 101, 24 Am. St. Rep. 254. A widow, holding an interest in land as tenant in common, as one of the owners of her husband's estate, does not acquire title thereto merely by an act of purchase by tax deed. Falkner v. Thurmond (Miss.), 23 So. 584. Where a married woman permits her husband to manage her separate property, she cannot repudiate his acts, nor assert a resulting trust as against a bona fide purchaser from the husband. Coleman v. Semmes, 56 Miss. 321.

If Hartman v. Nettles, 64 Miss. 495, 8 So. 234, and Massey v. Rimmer, 69 Miss. 667, 13 So. 832, hold to the contrary, they ought to be overruled upon the ground that they are unsound and most harmful in their effects. However, there is a very marked difference between the facts of those cases and the present case. In neither of those cases was a mortgagee creditor's rights involved. In one it was the rights of a simple, unsecured creditor, and the other the rights of the heirs of the husband. There was nothing in either of those cases to call the attention of the legislatures which have convened since to the principles announced in the controlling opinion in the present case.

I am therefore unable to see how the failure of the legislature to act amounted to an approval of the principles here involved.