Cross References —

Definition of term “land” see §1-3-25.

Definition of term “written,” see §1-3-61.

Lis pendens, see §§11-47-1 et seq.

Limitations of actions concerning land, see §§15-1-1 et seq.

Deeds in tax sales, see §§27-45-23,89-1-27.

Condominiums, see §§89-9-1 et seq.

Deeds by executors and administrators, see §91-7-223.

Release of powers of appointment, see §91-15-1 et seq.

Abolishment of disability of coverture, see §93-3-1.

Necessary elements of valid conveyance between husband and wife, see §93-3-9.

Sale of land by guardian, see §93-13-51.

Removal of disability of minority in relation to real estate, see §93-19-1.

JUDICIAL DECISIONS

1. In general.

2. Character of instrument as deed or will.

3. Deed in consideration of support.

4. Conveyance of future interest.

5. Conveyance to take effect in future.

6. Restrictive covenants.

7. Reservations and exceptions.

8. Vesting of title in grantee—generally.

9. —Extent of rights acquired.

10. —Priority of other interests.

11. — —Notice.

12. Effect of grantor's mental state.

13. Delivery and acceptance of deed.

14. Construction of particular terms.

15. Miscellaneous.

1. In general.

In suit to cancel recorded deed, where nondelivery of deed is alleged, the burden of proving nondelivery is on one claiming nondelivery. Wilbourn v. Wilbourn, 204 Miss. 206, 37 So. 2d 256, 1948 Miss. LEXIS 356 (Miss. 1948).

This section [Code 1942, § 831] is applicable to devises by will, as well as to conveyances by deed, since a will is a writing signed under an authorization for delivery upon the happening of the event which is to vest title in the devisee. Ricks v. Merchants Nat'l Bank & Trust Co., 191 Miss. 323, 2 So. 2d 344, 1941 Miss. LEXIS 128 (Miss. 1941).

Statute held to remove all restraints on transfer of real estate. Hamilton v. Jackson, 157 Miss. 284, 127 So. 302, 1930 Miss. LEXIS 255 (Miss. 1930).

This section practically abolishes the doctrine of champerty in reference to lands. Cassedy v. Jackson, 45 Miss. 397, 1871 Miss. LEXIS 89 (Miss. 1871), limited, Wallace v. Okolona Sav. Institute, 49 Miss. 616, 1873 Miss. LEXIS 153 (Miss. 1873).

2. Character of instrument as deed or will.

A purported conveyance of “all my right, title, interest and claim in and to” described lands, stating that it is understood that the grantor “shall have and hold all her right and title to above described property so long as she shall live, but at her death [grantee] shall claim and hold all right and title”, operates as a present conveyance with reservation of a life estate, and is not invalid as an attempted testamentary disposition. Buchanan v. Buchanan, 236 Miss. 751, 112 So. 2d 224, 1959 Miss. LEXIS 372 (Miss. 1959).

An instrument, which was executed and acknowledged in form of a deed and duly delivered and the consideration therefor paid, and which by its plain terms immediately vested the title to the land in the grantee, subject only to the reservation of the right of possession of the grantor as long as he lived, must be given effect as a valid deed. Tanner v. Foreman, 212 Miss. 355, 54 So. 2d 483, 1951 Miss. LEXIS 456 (Miss. 1951).

An instrument in the words and form of, and describing itself as, a deed, acknowledged and recorded as a deed, is a deed and not a will notwithstanding a provision reserving a life estate to grantor and that title should vest in grantee at grantor’s death. Watts v. Watts, 198 Miss. 246, 22 So. 2d 625, 1945 Miss. LEXIS 190 (Miss. 1945).

Instrument purporting to convey land to grantee for consideration of $10 and other valuable consideration, providing that grantee was to cultivate the land free of rent, pay the taxes, and support grantor during the remainder of her life, title not to pass until grantor’s death, was a “deed” rather than a “will,” whereby grantee acquired, during grantor’s lifetime, title charged with obligation to support grantor for balance of her life. Hald v. Pearson, 197 Miss. 410, 20 So. 2d 71, 1944 Miss. LEXIS 308 (Miss. 1944).

In determining whether an instrument is a deed or a will, the court must ascertain and give effect to intention of the parties as gathered from entire instrument, in light of circumstances surrounding its execution. Carter v. Dabbs, 196 Miss. 692, 18 So. 2d 747, 1944 Miss. LEXIS 250 (Miss. 1944).

The difference between a deed and a will is that by means of the former a present interest passes, while the latter takes effect only at the death of the testator. Hald v. Pearson, 197 Miss. 410, 20 So. 2d 71, 1944 Miss. LEXIS 308 (Miss. 1944); Watts v. Watts, 198 Miss. 246, 22 So. 2d 625, 1945 Miss. LEXIS 190 (Miss. 1945).

Instruments labeled warranty deeds, containing operative words of conveyance usual to warranty deeds, whereby grantors, who intended to execute deeds, purported to convey land in fee simple reserving to themselves a house and the use of pasture and ten acres, were deeds and not wills, notwithstanding provision, following grantee’s promise to pay specified annual amounts to grantors until their deaths, that at that time the property is to be the grantee’s, where instruments also provided that if grantee failed to make full annual payments the “deeds” are null and void. Carter v. Dabbs, 196 Miss. 692, 18 So. 2d 747, 1944 Miss. LEXIS 250 (Miss. 1944).

Instrument conveying land, postponing possession and use of land by grantee until grantor’s death, was valid deed and not a will. Graham v. Triplett, 148 Miss. 299, 114 So. 621, 1927 Miss. LEXIS 63 (Miss. 1927).

Instrument granting all property that grantor might die seized and possessed of, with provision that grantee pay certain sums to relatives held a will and not a deed. Martin v. Graham, 114 Miss. 653, 75 So. 447, 1917 Miss. LEXIS 76 (Miss. 1917).

Estimate in form of deed held to be deed and not will, though using words “I will this property.” Brinson v. Sandifer, 90 Miss. 41, 42 So. 89, 1907 Miss. LEXIS 30 (Miss. 1907).

3. Deed in consideration of support.

Deed for support of grantor not cancelled for breach of agreement where it provides no lien, nor forfeiture on condition broken; such deed not set aside on ground grantor did not understand terms, in absence of timely application. Wynn v. Kendall, 122 Miss. 809, 85 So. 85, 1920 Miss. LEXIS 477 (Miss. 1920).

Deed in consideration of support of grantor not cancelled for failure to perform agreement where it contained no provision for forfeiture and reserved no liens to secure performance. Lowrey v. Lowrey, 111 Miss. 153, 71 So. 309, 1916 Miss. LEXIS 258 (Miss. 1916).

4. Conveyance of future interest.

This statute removes all restraints on the inter vivos transfer of interests in real estate whether present or future. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

This statute makes good as a deed a conveyance of a future interest. Buchanan v. Buchanan, 236 Miss. 751, 112 So. 2d 224, 1959 Miss. LEXIS 372 (Miss. 1959).

Where a testatrix devised to her two daughters a life interest in certain real estate with the remainder over to their descendants, bequeathed one dollar each to her other children, and devised to the same two daughters the rest of her estate both real and personal, the two daughters having no children, took a fee to the realty. Oliphant v. Skelton, 230 Miss. 518, 93 So. 2d 181, 1957 Miss. LEXIS 392 (Miss. 1957).

A conveyance of a life estate by the holder thereof to the remaindermen named in the deed to the grantor is valid. Ricks v. Riddell, 200 Miss. 122, 26 So. 2d 782, 1946 Miss. LEXIS 273 (Miss. 1946).

Conveyance of remainder reserving life estate in grantors held valid. Stubblefield v. Haywood, 123 Miss. 480, 86 So. 295, 1920 Miss. LEXIS 46 (Miss. 1920).

5. Conveyance to take effect in future.

Instrument executed by owner and wife purporting to convey land to son, containing provision that “this deed of conveyance is not to be delivered, or so considered delivered during” the lives of the grantors, but death of both shall constitute a full and complete delivery, and the land shall immediately vest in fee simple in him, was testamentary in character and ineffective as a deed; and the surviving grantor and widow of the owner could not effectively make a delivery upon her deathbed, as she was without power to amend the intention and purpose of her deceased husband. Palmer v. Riggs, 197 Miss. 256, 19 So. 2d 807, 1944 Miss. LEXIS 293 (Miss. 1944).

Conveyances by instruments to take effect at maker’s death are not within rule that conveyances may be made to vest in future, since instruments conveying interests to vest in future must take effect in praesenti, and maker must part with all right to thereafter dispose of land otherwise. Tapley v. McManus, 175 Miss. 849, 168 So. 51, 1936 Miss. LEXIS 72 (Miss. 1936).

Instrument in form of deed, not to become effective until death of maker, is testamentary and cannot operate as a deed. Tapley v. McManus, 175 Miss. 849, 168 So. 51, 1936 Miss. LEXIS 72 (Miss. 1936).

In instrument conveying land to take effect after maker’s death, habendum clause that grantee should have and hold premises to her, her heirs and assigns forever, did not modify express testamentary provisions so as to convey present interest, but only limited and defined estate granted. Tapley v. McManus, 175 Miss. 849, 168 So. 51, 1936 Miss. LEXIS 72 (Miss. 1936).

Instrument in form of deed, not to become effective until death of maker, cannot operate as a deed, so that maker of such instrument could have it canceled on ground that grantee was attempting to interfere with maker’s use and occupation of land. Tapley v. McManus, 175 Miss. 849, 168 So. 51, 1936 Miss. LEXIS 72 (Miss. 1936).

Instrument providing that, in consideration of donee caring for her during life, donor did “bargain, sell, convey and warrant” to him land, but providing transfer not to take effect until death of donor, is not a valid deed. Kelly v. Covington, 119 Miss. 658, 81 So. 485, 1919 Miss. LEXIS 44 (Miss. 1919).

6. Restrictive covenants.

In suit to quiet title to land in which decree involves meaning of restriction in deed against operation on property of textile industry, decree for neither side can rest on testimony of experts in textile trade as to meaning of term “textile industry” when their own disagreement and divergence of understanding of its significance make manifest that phrase is ambiguous and not solvable by uniform trade understanding. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

In suit to quiet title, when phrase in restrictive covenant is shown by expert witnesses to be ambiguous, situation justifies resort to further aid of construction, that of negotiations and conversations leading up to adoption of restrictive covenant. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

Provision in deed to school trustees that in case land ceased to be used as school property land was to revert back to grantor became effective when trustees abandoned building on land, transferred pupils to another consolidated school, enlarged its facilities through successive bond issues and serviced pupils of old school district by busses from new school, and heirs of grantor took possession of property, destroyed buildings without objection by trustees, placed land upon tax rolls and asserted dominion over land. James v. Gulf Refining Co., 206 Miss. 781, 41 So. 2d 2, 1949 Miss. LEXIS 300 (Miss. 1949).

Restrictions intended to limit the use of property to a particular purpose should be clearly defined and understood by the parties. Frederic v. Merchants & Marine Bank, 200 Miss. 755, 28 So. 2d 843, 1947 Miss. LEXIS 359 (Miss. 1947).

A resolution in the minutes of the board of directors of a grantor bank which recited that the proposed grantee explained that land would be used for a specified purpose, even if such recitals had been contained in the deed of conveyance, did not impose an enforceable restriction on the use of the property. Frederic v. Merchants & Marine Bank, 200 Miss. 755, 28 So. 2d 843, 1947 Miss. LEXIS 359 (Miss. 1947).

Where grantors conveyed property to be held by grantee as long as it should be used for waterworks purposes, and later delivered deed to another, city claiming under both deeds owned fee simple title. Hamilton v. Jackson, 157 Miss. 284, 127 So. 302, 1930 Miss. LEXIS 255 (Miss. 1930).

Intent to subject estates to restrictions on alienation or encumbrance or liability for life tenant’s debts must be clearly expressed. Montroy v. Phillips, 134 Miss. 345, 98 So. 775, 1924 Miss. LEXIS 261 (Miss. 1924).

7. Reservations and exceptions.

A reservation in a deed whereby the grantors purported to retain a reversionary interest in minerals was ambiguous and would be construed against the grantors where the grantors did not own a reversionary interest, but owned only a remainder in the mineral interest. Deason v. Cox, 527 So. 2d 624, 1988 Miss. LEXIS 209 (Miss. 1988).

Grantee who accepts deed containing reservation or exception of all minerals in lands conveyed with full knowledge of language and import of deed cannot obtain reformation of deed to eliminate reservation, despite his dissatisfaction and protestations at time of its execution. Holland v. Bass, 45 So. 2d 743 (Miss. 1950).

Reservation in deed of all minerals made part of consideration is not inconsistent with status of deed as being cast in warranty form. Holland v. Bass, 45 So. 2d 743 (Miss. 1950).

Provision in deed reserving life estate to grantor and providing that title should vest in grantee at grantor’s death does not postpone vesting of title until death of grantor but passes an immediate interest or right, with full enjoyment thereof, postponed until grantor’s death. Watts v. Watts, 198 Miss. 246, 22 So. 2d 625, 1945 Miss. LEXIS 190 (Miss. 1945).

Reservation of an undivided one-fourth interest in all minerals, oil and gas “that might hereafter be discovered on the lands herein described,” reserved to grantor and its assignees a present, undivided one-fourth interest in the minerals that might be found in the land, as tenants in common of the grantee, with the right, by necessary implication from the reservation itself, to enter upon the land to ascertain the presence of and remove minerals that might lie therein. McNeese v. Renner, 197 Miss. 203, 21 So. 2d 7, 1945 Miss. LEXIS 286 (Miss. 1945).

In order for a reservation in a deed to be operative it must withhold from the grant something which would have passed by the deed but for the reservation. Barataria Canning Co. v. Ott, 84 Miss. 737, 37 So. 121, 1904 Miss. LEXIS 90 (Miss. 1904).

If there is a patent ambiguity in the description of land excepted from a conveyance, the exception, not the deed, is void for uncertainty. McAllister v. Honea, 71 Miss. 256, 14 So. 264, 1893 Miss. LEXIS 163 (Miss. 1893).

8. Vesting of title in grantee—generally.

Quitclaim deed to 80 acres of farmland in Mississippi which an Alabama corporation claimed it received from a real estate investment company (‘‘debtor’’) before the debtor declared bankruptcy was invalidunder Miss. Code Ann. §89-1-1 because it was not signed by an individual who had the power to represent the debtor, and even if the deed was somehow valid, a trustee who was appointed to administer the debtor’s Chapter 7 bankruptcy case had the power under 11 U.S.C.S. § 544 to avoid the deed because the deed was not recorded before the debtor declared bankruptcy. Smith v. Dynasty Grp., Inc. (In re Heritage Real Estate Inv., Inc), — B.R. —, 2017 Bankr. LEXIS 3618 (Bankr. S.D. Miss. Oct. 17, 2017).

Earlier instrument sufficed to transfer the father’s partnership interest in the subject property to the son where the instrument had been signed, sealed, and delivered, it evinced the father’s intent to transfer title to all partnership property to the son, and the property had been purchased and treated as partnership property. White v. White (In re White), 234 So.3d 1210, 2017 Miss. LEXIS 351 (Miss. 2017).

Decedent’s transfer of land to herself as trustee for the benefit of her four children and the heirs at law of any of such children who should die during the continuance of the trust, with provision for distribution of the trust to the beneficiaries upon the death of the trustee or her termination of the trust, vested the property in the trustee and beneficiaries so that trust property was not part of decedent’s gross estate so as to be subject to federal estate taxes. Hays' Estate v. Commissioner, 181 F.2d 169, 1950 U.S. App. LEXIS 4012 (5th Cir. 1950).

Execution by husband and wife of deed to homestead property to son, delivery of deed to clerk and its recordation, son being overseas in war, vested record and legal title to property in son, which could not be destroyed by destruction of recorded deed by mother. Wilbourn v. Wilbourn, 204 Miss. 206, 37 So. 2d 256, 1948 Miss. LEXIS 356 (Miss. 1948).

One who by his tenant is in actual possession under a deed to a part of a tract of land conveyed to him thereby, there being no adverse possession, is deemed in legal possession of the whole tract conveyed. Houston v. National Mut. Bldg. & Loan Ass'n, 80 Miss. 31, 31 So. 540, 1902 Miss. LEXIS 314 (Miss. 1902); Seals v. Williams, 80 Miss. 234, 31 So. 707, 1902 Miss. LEXIS 236 (Miss. 1902).

9. —Extent of rights acquired.

Deed to property executed by wife conveys only interest in property owned by her, which is an undivided one-half interest when wife owns interest by reason of deed naming husband and wife as grantees, and deletion of husband’s name from deed after its delivery to grantees does not increase interest of wife in property. Prater v. Prater, 208 Miss. 59, 43 So. 2d 582, 1949 Miss. LEXIS 408 (Miss. 1949).

Conveyance by cotenant of all his right, title and interest, conveys to grantee merely such right as grantor has in land, usual covenants are restricted to such interest, and grantee becomes substituted for grantor as tenant in common with other tenants. Howard v. Wactor, 41 So. 2d 259 (Miss. 1949).

Deed to railroad of a right-of-way for 200 feet through land of grantor, identifying no particular strip with that certainty which a conveyance of the fee would require, and reserving to grantor rights as to timber and of cultivation, conveyed only a floating easement or right of usage. New Orleans & N. R. R. v. Morrison, 203 Miss. 791, 35 So. 2d 68, 1948 Miss. LEXIS 323 (Miss. 1948).

Where an easement will satisfy the purpose of the grant, a fee will not be included in the grant unless expressly provided. New Orleans & N. R. R. v. Morrison, 203 Miss. 791, 35 So. 2d 68, 1948 Miss. LEXIS 323 (Miss. 1948).

Where a life estate is created by a deed which provides that the holder shall have a fee-simple title should the remaindermen predecease the life tenant, without issue the life tenant, by virtue of such provision, has an executory interest in the land which is not conveyed in a deed of the life estate from the holder thereof to the remaindermen, and the grantees of the life estate cannot convey a fee-simple title on the strength of such conveyance to them of the life estate. Ricks v. Riddell, 200 Miss. 122, 26 So. 2d 782, 1946 Miss. LEXIS 273 (Miss. 1946).

A deed to a strip of land limiting the grantee’s interest to “a private easement or for street purposes only” does not authorize the grantee to take exclusive possession of the land. Lott v. Payne, 82 Miss. 218, 33 So. 948, 1903 Miss. LEXIS 121 (Miss. 1903).

The grantee in a deed conveying only title to land cannot maintain trespass as assignee of the grantor. Blodgett v. Seals, 78 Miss. 522, 29 So. 852, 1900 Miss. LEXIS 180 (Miss. 1900).

A grantee’s covenant to pay a stipulated rent, contained in and constituting the consideration of the deed to him, is binding between the assignee of the covenant and the assignee of the land in fee. Wright v. Hardy, 76 Miss. 524, 24 So. 697, 1898 Miss. LEXIS 96 (Miss. 1898).

A conveyance of land vests in the grantee by way of assignment all rights of action and defense that his grantor had in respect thereto. Fink v. Henderson, 74 Miss. 8, 19 So. 892, 1896 Miss. LEXIS 97 (Miss. 1896).

10. —Priority of other interests.

A grantee in a voluntary conveyance takes subject to all existing equities against his grantor, and cannot afterward acquire the lands at or through a tax sale freed from such equities if the grantor could not have done so. North American Trust Co. v. Lanier, 78 Miss. 418, 28 So. 804, 1900 Miss. LEXIS 81 (Miss. 1900).

A grantee of land takes subject to a prior unrecorded deed from his grantor of which he has actual notice. Henderson v. Cameron, 73 Miss. 843, 20 So. 2, 1896 Miss. LEXIS 213 (Miss. 1896).

11. — —Notice.

A purchaser of land from a life tenant is not entitled to recover from the remainderman, or have a lien on the remainder interest, for the cost of improvements made on the property by him, and equity will not, on the mere ground of the remainderman’s silence, relieve one who is perfectly acquainted with his rights, or has the means of becoming so, by examining the land records or otherwise, and the purchaser from the life tenant may not claim the benefit of an estoppel when he does not examine the land records, even if the true owner remains silent at a time when he knows another is about to purchase the land or make improvements thereon. Collier v. King, 251 Miss. 607, 170 So. 2d 632, 1965 Miss. LEXIS 888 (Miss. 1965).

Purchaser of land with notice from public records that owner is dead at the time is charged with constructive notice of whether or not owner left will, if not, who were heirs at law, and whether debts of deceased had been paid. Howard v. Wactor, 41 So. 2d 259 (Miss. 1949).

Mortgagee for value and without notice, not chargeable with unrecorded assignment of lease. Corinth Bank & Trust Co. v. Wallace, 111 Miss. 62, 71 So. 266, 1916 Miss. LEXIS 241 (Miss. 1916).

Deed to land with “party wall agreement and party ownership agreement thereunto appertaining, and easements and tenements,” sufficient to put grantee on notice of any such encumbrances. Binder v. Weinberg, 94 Miss. 817, 48 So. 1013, 1909 Miss. LEXIS 363 (Miss. 1909).

12. Effect of grantor's mental state.

The grantees of a deed, who had a fiduciary relationship with the grantor, overcame the presumption of undue influence in the execution of the deed, where the grantor, along with her 3 children, initiated seeking preparation of the deed, the grantor expressed her intent to convey the property to the grantees several weeks prior to the execution of the deed, the attorney who prepared the deed testified that the grantor knew what she was doing when the deed was executed, and the grantor remained in complete control of her finances at all times. Vega v. Estate of Mullen, 583 So. 2d 1259, 1991 Miss. LEXIS 119 (Miss. 1991).

Marriage ties alone do not constitute a “confidential relationship” sufficient to raise a presumption of undue influence. Smith v. Smith, 574 So. 2d 644, 1990 Miss. LEXIS 787 (Miss. 1990), aff'd, 672 So. 2d 1194, 1996 Miss. LEXIS 226 (Miss. 1996).

The date of execution of the deed should be the critical time when considering the standard of “weakness of intellect” or “great weakness of mind” with respect to the mental capacity to execute a deed. Furthermore, the “before and after” rule, applied in cases of permanent insanity, should not apply in cases involving a “weakness of intellect. Smith v. Smith, 574 So. 2d 644, 1990 Miss. LEXIS 787 (Miss. 1990), aff'd, 672 So. 2d 1194, 1996 Miss. LEXIS 226 (Miss. 1996).

There was sufficient evidence to rebut a presumption of undue influence with respect to the conveyance of a farm by a father to his sons where the father was “very sharp” mentally, aware of his family and finances, strong-willed, and, although he lived with one of the grantees at the time of the conveyance, also lived at various times with others and, therefore, was not solely dependant on the grantees. Miner v. Bertasi, 530 So. 2d 168, 1988 Miss. LEXIS 368 (Miss. 1988).

The burden of proving lack of mental capacity rests on the party seeking to have the deed of conveyance set aside. Clear and convincing evidence is required to establish lack of mental capacity and the crucial time in such incapacity is when the document is executed. In re Conservatorship of Stevens, 523 So. 2d 319, 1988 Miss. LEXIS 95 (Miss. 1988).

In order to be capable of executing deed, grantor must have mentality sufficient to enable him to understand and appreciate the nature and effect of the transaction. Puryear v. Austin, 205 Miss. 590, 39 So. 2d 257, 1949 Miss. LEXIS 449 (Miss. 1949).

Deed of well-educated man signed by mark, shortly before death, at time when blood transfusion was being administered and when grantor was of advanced age, ravaged by disease, weak and irrational, conveying all grantor’s property to his brother, without consideration, and including in description in deed land and lease not owned by grantor and about which he made no comment, is entirely void because of grantor’s mental incapacity. Puryear v. Austin, 205 Miss. 590, 39 So. 2d 257, 1949 Miss. LEXIS 449 (Miss. 1949).

Deed from mother to two daughters is not presumptively void because of confidential relationship between parties, or because of undue influence, when parties lived in residence together, mother could not speak English and daughters acted as her agents in all her business transactions and acted as her interpreters. Dantone v. Dantone, 205 Miss. 420, 38 So. 2d 908, 1949 Miss. LEXIS 439 (Miss. 1949).

13. Delivery and acceptance of deed.

Where a widow assigned and acknowledged a warranty deed conveying her farm to her niece, reserving a life estate to herself, which deed was handed to her brother with the instructions to keep and deliver it to the niece upon the widow’s death, which instructions were followed, there was a valid delivery from the widow to the niece in view of the undisputed testimony that the grantor reserved no right to recall the deed, and that the delivery to the brother was unequivocally to hold for the niece. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

Grantee manifests acceptance of deed when, upon discovery of recorded deed, he claims property conveyed and takes possession. Wilbourn v. Wilbourn, 204 Miss. 206, 37 So. 2d 256, 1948 Miss. LEXIS 356 (Miss. 1948).

Delivery of deed, after proper execution, to chancery clerk for recording is constructive delivery to grantee when it is apparent either from words or acts of grantor that it is his intention to treat deed as being delivered. Wilbourn v. Wilbourn, 204 Miss. 206, 37 So. 2d 256, 1948 Miss. LEXIS 356 (Miss. 1948).

A valid conveyance presupposes a complete delivery, which does not mean a mere manual possession of the document of conveyance, but a transfer, as by livery of seizin, which constitutes a deliberate present investiture of title. Palmer v. Riggs, 197 Miss. 256, 19 So. 2d 807, 1944 Miss. LEXIS 293 (Miss. 1944).

A deed made to two grantees may be delivered to and accepted by one of them so as to invest him with an undivided interest in the land and yet be ineffectual as to the other for want of a delivery to and acceptance on his part. Chapman v. White Sewing-Mach Co., 76 Miss. 821, 25 So. 868, 1899 Miss. LEXIS 24 (Miss. 1899), modified, Chapman v. White Sewing-Mach. Co., 77 Miss. 890, 28 So. 749, 1900 Miss. LEXIS 57 (Miss. 1900).

14. Construction of particular terms.

The wording of a deed which provided that “we hereby bargain, sell, convey and warrant to the Trustees of Oakgrove Consolidated High School and their successors the following described land. . . ” could only connote a conveyance absolute and the grantors’ children would not be heard some 50 years later to say that the grantors’ intent was something entirely different from what was expressed in the plain and simple legalese in the recorded instrument of conveyance. Garraway v. Yonce, 549 So. 2d 1341, 1989 Miss. LEXIS 453 (Miss. 1989).

While the trend of the law in the construction of deeds has been extremely strict, and the words of the deed have been paramount in determining the type of conveyance executed rather than the true intent of the grantor, the new trend and interpretation of this rule of law is toward ascertaining the true intent of the grantor when dealing with conveyances by deed, as has been done in construing conveyances by will in this state for almost a hundred years. Avant v. Wells, 244 So. 2d 398, 1971 Miss. LEXIS 1329 (Miss. 1971).

A deed which recited that the grantor did “hereby warrant, sell and convey” certain land to his wife for a named consideration, but further provided that after the death of the wife, by fee simple, the property be equally divided between two named persons, sufficiently showed that it was the intention of the grantor to convey to his wife a life estate only, and upon her death a remainder to be divided equally between the two named persons. Avant v. Wells, 244 So. 2d 398, 1971 Miss. LEXIS 1329 (Miss. 1971).

Where the recitals of a deed announce a purpose to invest a life estate in the grantee, with remainder to his children, but the granting party conveys the land in fee simple to the grantee and his heirs, the grant controls. Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341, 1901 Miss. LEXIS 114 (Miss. 1901).

15. Miscellaneous.

In order to have merger of title, it is necessary that first and second deeds of trust be owned entirely by the same party. Merchants Nat'l Bank v. Stewart, 608 So. 2d 1120, 1992 Miss. LEXIS 137 (Miss. 1992).

Separate deeds may be used to sever estate in the entirety under narrow range of circumstances whereby both spouses act in concert pursuant to common purpose and without derogation of other’s right of survivorship. Thus, separate deeds could be used by husband and wife to sever estate in the entirety where both deeds were executed, acknowledged and recorded at same time and place, and ownership arrangement regarding the property was clearly division of marital property in anticipation of spouses’ impending divorce. Newton v. Long, 588 So. 2d 192 (1991).

An otherwise valid warranty deed would not be set aside for failure of consideration; if there were any failure of consideration, the result would be addressed by awarding damages, rather than a cancellation of the deed. Vega v. Estate of Mullen, 583 So. 2d 1259, 1991 Miss. LEXIS 119 (Miss. 1991).

Where land is described in a deed by township, range and section, so that it may be located with absolute certainty, it is of no importance to the validity of the conveyance that the lands or a portion thereof are recited as lying in an incorrect county. Holliman v. Charles L. Cherry & Assoc., Inc., 569 So. 2d 1139, 1990 Miss. LEXIS 204 (Miss. 1990).

One who relies upon a conveyance by deed is not precluded from claiming adversely possessed land even though the land description in the deed does not include contiguous land adversely possessed by the predecessor in title. Stallings v. Bailey, 558 So. 2d 858, 1990 Miss. LEXIS 157 (Miss. 1990).

A deed which conveyed a “2 and one-half/32 and one-half (2.5/32.5)” mineral interest in one land parcel comprising 25 acres and another land parcel comprising 7.5 acres, “containing in the aggregate of 32.5 acres” conveyed a full and undivided 2.5 mineral acres out of the aggregate of 32.5 acres, rather than an undivided 2.5/32.5 fractional interest from each acre in the 25-acre track and also from each acre in the 7.5-acre track. Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 1990 Miss. LEXIS 63 (Miss. 1990).

If a party who contemplates purchasing a piece of property wishes to protect himself or herself against the possibility that he or she may be unable to secure financing adequate to make the purchase, it is incumbent upon that party to so provide by clear language in the contract. Otherwise, this is a risk the buyer assumes when he or she executes the contract. Osborne v. Bullins, 549 So. 2d 1337, 1989 Miss. LEXIS 448 (Miss. 1989).

Although, ordinarily, previous negotiations or contracts are merged into a deed of conveyance, certain preliminary stipulations, such as are independent and collateral, and not such preliminary agreements as would be merged in the conveyance, survive the deed and confer independent causes of action. Knight v. McCain, 531 So. 2d 590, 1988 Miss. LEXIS 435 (Miss. 1988).

Where a remainderman affirmatively misled a purchaser from the life tenant into believing that if he purchased the property he would get a good title, and the remainderman thereafter observed the day to day progress of the construction by the purchaser of a home upon the property without any mention of his remainder interest, the purchaser was entitled to a lien for the value of the improvements he had so constructed. Collier v. King, 251 Miss. 607, 170 So. 2d 632, 1965 Miss. LEXIS 888 (Miss. 1965).

Under this section, a residuary devise or bequest carries everything the testator has attempted but failed to dispose of, unless a contrary intention appears from the will. Oliphant v. Skelton, 230 Miss. 518, 93 So. 2d 181, 1957 Miss. LEXIS 392 (Miss. 1957).

One who purchases real property on faith of public records from wife does not occupy position of innocent purchaser for value as to interest of husband when deed conveying property to husband and wife has been altered before recording by deletion of husband’s name from deed as one of the grantees. Prater v. Prater, 208 Miss. 59, 43 So. 2d 582, 1949 Miss. LEXIS 408 (Miss. 1949).

Purchaser of property under forgery is not exalted by law into preferred position of innocent purchaser for value and thief can give no title. Prater v. Prater, 208 Miss. 59, 43 So. 2d 582, 1949 Miss. LEXIS 408 (Miss. 1949).

Purchaser of real property who refuses to carry out contract to purchase on other grounds cannot, on appeal from judgment in favor of vendor, raise the objection to form of deed tendered that it required vendee to pay taxes, since grantor did not have opportunity to meet this objection, which he might have corrected had any request been made that he do so. Vanlandingham v. Jenkins, 207 Miss. 882, 43 So. 2d 578, 1949 Miss. LEXIS 399 (Miss. 1949).

Lessor not obligated to put lessee in possession without express provision therefor, as tenant has statutory power to evict an intruder. West v. Kitchell, 109 Miss. 328, 68 So. 469, 1915 Miss. LEXIS 159 (Miss. 1915).

A deed that describes land by section, township and range is not void for uncertainty because it does not describe the state and county in which the land is situated. Ladnier v. Ladnier, 75 Miss. 777, 23 So. 430, 1898 Miss. LEXIS 22 (Miss. 1898).

Unless specially authorized by the terms of the instrument, a trustee in a deed of trust is unauthorized to appoint another to act in his place. Carey v. Fulmer, 74 Miss. 729, 21 So. 752, 1897 Miss. LEXIS 54 (Miss. 1897).

OPINIONS OF THE ATTORNEY GENERAL

A tax lien is extinguished once the State acquires property, not necessarily when the deed was recorded. Miller, February 23, 1995, A.G. Op. #95-0039.

RESEARCH REFERENCES

ALR.

Conveyance or reservation of minerals as including minerals recoverable only by open pit mining. 1 A.L.R.2d 787.

Restrictive covenants, conditions, or agreements in respect of real property discriminating against persons on account of race, color, or religion. 3 A.L.R.2d 466.

Rights as between vendor and vendee under land contract in respect of interest. 25 A.L.R.2d 951.

Deeds: meaning of terms “dwelling” or “dwelling house” or “house” as used in the conveyance or exception or reservation clauses. 38 A.L.R.3d 1419.

Validity and construction or restrictive covenant requiring consent to construction on lot. 40 A.L.R.3d 864.

Pre-emptive rights to realty as violation of rule against perpetuities or rule concerning restraints on alienation. 40 A.L.R.3d 920.

Covenant in deed restricting material to be used in building construction. 41 A.L.R.3d 1290.

Applicability of statute of frauds to agreement to rescind contract for sale of land. 42 A.L.R.3d 242.

Specific performance of land contract notwithstanding failure of vendee to make required payments on time. 55 A.L.R.3d 10.

Construction and operation of “optional agreement-flat payment” land contract under which optionee has right to take title when periodic payments (otherwise to be treated as rent) equal agreed price. 55 A.L.R.3d 159.

Independent option to purchase real estate as violating rule against perpetuities or restraints on alienation. 66 A.L.R.3d 1294.

Specificity of description of premises as affecting enforceability of contract to convey real property-modern cases. 73 A.L.R.4th 135.

Effect of Federal Home Mortgage Disclosure Act of 1975 (12 USCS §§ 2801-2809) on enforcement of state disclosure and antiredlining statutes against federal financial institutions. 57 A.L.R. Fed. 322.

Am. Jur.

14 Am. Jur. 2d, Champerty and Maintenance §§ 11 et seq.

5A Am. Jur. Pl & Pr Forms (Rev), Champerty and Maintenance, Forms 31, 32 (answer alleging that conveyance was champertous).

8 Am. Jur. Pl & Pr Forms (Rev) Deeds, Forms 14-18 (jury instructions as to what constitutes delivery of deed).

7 Am. Jur. Legal Forms 2d, Deeds §§ 87:231 et seq. (reservations and exceptions).

13 Am. Jur. Proof of Facts 2d 483, Delivery of Deeds.

17 Am. Jur. Proof of Facts 2d 283, Voluntary Grantor’s Mistake in Conveying more than was Intended.

38 Am. Jur. Proof of Facts 2d 633, Dedication of Land to Public Use.

CJS.

14 C.J.S., Champerty and Maintenance

Barratry and Related Matters § 16.

14 C.J.S., Champerty and Maintenance; Barratry and Related Matters § 16.

26A C.J.S., Deeds §§ 164 et seq.

Cross References —

Definition of term “written,” see §1-3-61.

Operation of decree of chancery court as conveyance, see §11-5-85.

Land office certificates vesting title in land, see §13-1-131.

Statutes of frauds, see §§15-3-1 et seq.,89-1-47.

Conveyances by attorney in fact, see §87-3-3.

Requirement that spouse join in conveying homestead, see §89-1-29.

Requirements for valid conveyance between husband and wife, see §93-3-9.

JUDICIAL DECISIONS

1. In general.

2. Instrument executed by agent acting under parol authority.

3. Delivery.

4. Miscellaneous.

1. In general.

A severance from a joint tenancy to a tenancy in common is not a conveyance when it arises from the course of dealing, but is simply a change from one form of ownership to that of another form and arises by the operation of law. Bird v. Stein, 102 F. Supp. 399, 1952 U.S. Dist. LEXIS 4742 (D. Miss. 1952), rev'd, 204 F.2d 122, 1953 U.S. App. LEXIS 3982 (5th Cir. Miss. 1953).

No estate in land passed under this section by verbal gift. Smith v. Taylor, 183 Miss. 542, 184 So. 423, 1938 Miss. LEXIS 267 (Miss. 1938).

To establish title by estoppel, evidence must show all necessary elements of estoppel. Roberts v. Bookout, 162 Miss. 676, 139 So. 175, 1932 Miss. LEXIS 122 (Miss. 1932).

Mortgagee for value without notice is not chargeable with unrecorded assignment of lease. Corinth Bank & Trust Co. v. Wallace, 111 Miss. 62, 71 So. 266, 1916 Miss. LEXIS 241 (Miss. 1916).

License to go on land and take turpentine from trees, is not an interest in land requiring writing. Newton v. Long, 107 Miss. 349, 65 So. 460, 1914 Miss. LEXIS 91 (Miss. 1914).

At common law “land,” embraced both soil and natural products such as trees growing upon and affixed to it. L. N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, 1910 Miss. LEXIS 286 (Miss. 1910), limited, Merrill Engineering Co. v. Capital Nat'l Bank, 192 Miss. 378, 5 So. 2d 666, 1942 Miss. LEXIS 5 (Miss. 1942).

When reasonably possible, conveyances should be so construed as to render them operative. Swan v. New England Mortg. & Sec. Co., 75 Miss. 907, 23 So. 627, 1898 Miss. LEXIS 40 (Miss. 1898).

This section forbids a verbal agreement between two adjoining proprietors that a division wall, built in part upon the land of each, shall be the sole property of one of them. Weems v. Mayfield, 75 Miss. 286, 22 So. 892, 1897 Miss. LEXIS 124 (Miss. 1897).

A parol agreement authorizing the cutting of standing trees is within this section. Walton v. Lowrey, 74 Miss. 484, 21 So. 243, 1896 Miss. LEXIS 165 (Miss. 1896).

A license to use land is good only to those in whose favor or for whose use it is given. Agnew v. Jones, 74 Miss. 347, 23 So. 25, 1896 Miss. LEXIS 186 (Miss. 1896).

A verbal lease of land to begin at a future fixed time, and to continue not more than one year, is valid. McCroy v. Toney, 66 Miss. 233, 5 So. 392, 1888 Miss. LEXIS 95 (Miss. 1888).

Real estate cannot be passed or incumbered for a longer period than one year by a mere deposit of the title deeds. Gothard v. Flynn, 25 Miss. 58, 1852 Miss. LEXIS 142 (Miss. 1852).

2. Instrument executed by agent acting under parol authority.

Agent under parol authority may execute written contract binding principal to exchange of lands. Hopper v. McAllum, 87 Miss. 441, 40 So. 2, 1905 Miss. LEXIS 159 (Miss. 1905).

Inasmuch as a lease of land for more than one year must be by deed the appointment of an agent to make it must be by deed. Lobdell v. Mason, 71 Miss. 937, 15 So. 44, 1894 Miss. LEXIS 16 (Miss. 1894).

An instrument executed by an agent who is only verbally authorized purporting to rent land for more than one year is invalid as a lease for the time over one year, but in equity it is good as a contract binding the principal to execute a lease. Lobdell v. Mason, 71 Miss. 937, 15 So. 44, 1894 Miss. LEXIS 16 (Miss. 1894).

3. Delivery.

Where a widow assigned and acknowledged a warranty deed conveying her farm to her niece, reserving a life estate to herself, which deed was handed to her brother with the instructions to keep and deliver it to her niece upon the widow’s death, which instructions were followed, there was a valid delivery from the widow to the niece in view of the undisputed testimony that the grantor reserved no right to recall the deed, and that the delivery to the brother was unequivocally to hold for the niece. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

Delivery may be constructive as well as actual, it being sufficient if the words or acts of the grantor manifest his intention to treat the deed as having been delivered. Frederic v. Merchants & Marine Bank, 200 Miss. 755, 28 So. 2d 843, 1947 Miss. LEXIS 359 (Miss. 1947).

Where owner put purchaser in possession of house under oral agreement to sell, and executed but did not deliver deed, there was no change of interest or title. Osler v. Atlas Assurance Co., 127 Miss. 511, 90 So. 185, 1921 Miss. LEXIS 253 (Miss. 1921).

Deposit of deed to be delivered by depository to grantee after grantor’s death, if without reservation, is sufficient delivery to vest title. Wilson v. Bridgforth, 108 Miss. 199, 66 So. 524, 1914 Miss. LEXIS 189 (Miss. 1914).

Act of grantor placing deed in tin box among his private papers in wardrobe used by him and wife, did not constitute delivery to wife. Ligon v. Barton, 88 Miss. 135, 40 So. 555, 1906 Miss. LEXIS 122 (Miss. 1906).

If a deed be once effectually delivered, no subsequent acts of the grantor can disparage the title conveyed. Hall v. Waddill, 78 Miss. 16, 27 So. 936, 1900 Miss. LEXIS 71 (Miss. 1900).

To effect a valid delivery of a deed the grantor must part with it so absolutely and irrevocably as never thereafter to have the right to recall it. Hall v. Waddill, 78 Miss. 16, 27 So. 936, 1900 Miss. LEXIS 71 (Miss. 1900).

4. Miscellaneous.

The statutory signing requirements of §§15-3-1,89-1-3,89-1-29 and91-9-1 [repealed] were satisfied with respect to a deed of trust relating to homestead property, even though the wife neglected to sign the deed of trust document, where her signature appeared on the 2 attachments to the deed of trust-the property description and the adjustable rate mortgage rider-which constituted an integral part of the deed of trust. United Miss. Bank v. GMAC Mortgage Co., 615 So. 2d 1174, 1993 Miss. LEXIS 21 (Miss. 1993).

The wording of a deed which provided that “we hereby bargain, sell, convey and warrant to the Trustees of Oakgrove Consolidated High School and their successors the following described land. . . ” could only connote a conveyance absolute and the grantors’ children would not be heard some 50 years later to say that the grantors’ intent was something entirely different from what was expressed in the plain and simple legalese in the recorded instrument of conveyance. Garraway v. Yonce, 549 So. 2d 1341, 1989 Miss. LEXIS 453 (Miss. 1989).

A conveyance of land executed to a corporation in violation of the Mississippi Blue Sky Law (Laws, 1916, ch. 97) was utterly void and imparted no notice to subsequent purchasers, nor did it set in motion the running of the 10-year statute of limitations. Mississippi State Highway Com. v. Smith, 197 So. 2d 212, 1967 Miss. LEXIS 1503 (Miss. 1967).

Alteration of deed by deletion of name of one of two grantees named in deed when it was delivered does not operate to pass title to grantee whose name remains in deed as title to one-half interest in property which has vested in grantee whose name was deleted can pass only by instrument of writing. Prater v. Prater, 208 Miss. 59, 43 So. 2d 582, 1949 Miss. LEXIS 408 (Miss. 1949).

One who purchases real property on faith of public records from wife does not occupy position of innocent purchaser for value as to interest of husband when deed conveying property to husband and wife has been altered before recording by deletion of husband’s name from deed as one of the grantees. Prater v. Prater, 208 Miss. 59, 43 So. 2d 582, 1949 Miss. LEXIS 408 (Miss. 1949).

Deed to property executed by wife conveys only interest in property owned by her, which is an undivided one-half interest when wife owns interest by reason of deed naming husband and wife as grantees, and deletion of husband’s name from deed after its delivery to grantees does not increase interest of wife in property. Prater v. Prater, 208 Miss. 59, 43 So. 2d 582, 1949 Miss. LEXIS 408 (Miss. 1949).

Instrument purporting to be a deed, which has no grantee, either corporation or person, in being is void; deed for school and church purposes to Collins Graveyard and Collins School House was ineffectual, where no corporations so named were known in the community. Morgan v. Collins School House, 160 Miss. 321, 133 So. 675, 1931 Miss. LEXIS 172 (Miss. 1931).

Deed for support of grantor not cancelled for breach of agreement where it provides no lien nor forfeiture on condition broken; such deed not set aside on grounds grantor did not understand terms in absence of timely application. Wynn v. Kendall, 122 Miss. 809, 85 So. 85, 1920 Miss. LEXIS 477 (Miss. 1920).

A deed conveying lands in a legal subdivision described as a corner or fractional corner of the same containing a certain area is not void for uncertainty. Swan v. New England Mortg. & Sec. Co., 75 Miss. 907, 23 So. 627, 1898 Miss. LEXIS 40 (Miss. 1898).

A deed conveying “lot 36 in the town of Webb” is not void for uncertainty, since the courts will take judicial notice of the municipal subdivisions of the state and that they are in the counties to which they belong. Wilkerson v. Webb, 75 Miss. 403, 23 So. 180 (Miss. 1897).

A verbal agreement by the owner to convey land to a county for school purposes, by which third parties are induced to erect a schoolhouse thereon, is an irrevocable license for the purpose for which it was made as long as the house is used for the purpose specified. Agnew v. Jones, 74 Miss. 347, 23 So. 25, 1896 Miss. LEXIS 186 (Miss. 1896).

The section does not prevent the vesting of the title to lands by virtue of an adverse possession for the statutory period, though the holding were begun under a parol gift or purchase. Davis v. Davis, 68 Miss. 478, 10 So. 70, 1891 Miss. LEXIS 52 (Miss. 1891).

RESEARCH REFERENCES

ALR.

Rights as between vendor and vendee under land contract in respect of interest. 25 A.L.R.2d 951.

Applicability of statute of frauds to agreement to rescind contract for sale of land. 42 A.L.R.3d 242.

Statute of frauds: validity of lease or sublease subscribed by one of the parties only. 46 A.L.R.3d 619.

Specificity of description of premises as affecting enforceablilty of contract to convey real property-modern cases. 73 A.L.R.4th 135.

Specificity of description of premises as affecting enforceability of lease. 73 A.L.R.4th 236.

Am. Jur.

23 Am. Jur. 2d, Deeds §§ 105 et seq.

49 Am. Jur. 2d, Landlord and Tenant §§ 60-64.

38 Am. Jur. Proof of Facts 2d 633, Dedication of Land to Public Use.

CJS.

26A C.J.S., Deeds § 39.

51 C.J.S., Landlord and Tenant §§ 21 et seq.

JUDICIAL DECISIONS

1. In general.

2. Deeds to railroads.

1. In general.

Section 89-1-5, which provides, in part, that “the words deemed necessary by the common law to transfer an estate of inheritance” are no longer necessary to create a fee simple, does not alter the principle that reservations or exceptions expressed in doubtful or ambiguous language are, as a general rule, construed most strongly against the grantor and in favor of the grantee. Deason v. Cox, 527 So. 2d 624, 1988 Miss. LEXIS 209 (Miss. 1988).

Under a land sale contract providing for reconveyance to the vendor in the event that industrial facilities were not developed on the property within five years, a condition which was not satisfied, the purchaser was required to convey fee simple title (including timber rights) where, although timber rights had been reserved to the vendor in the original deed and were later conveyed to the purchaser for separate consideration, the rights under the timber deed expired while the property was possessed by the purchaser and thus, merged into the ownership under the original deed. Forbes v. Columbia Pulp & Paper Co., 340 So. 2d 734, 1976 Miss. LEXIS 1732 (Miss. 1976).

Language in a will that all of the testator’s property was to pass to his wife and daughter and their descendents created a fee simple in the wife and daughter and not a life estate. Bradford v. Federal Land Bank, 338 So. 2d 388, 1976 Miss. LEXIS 1620 (Miss. 1976).

A devise of all testator’s property, except a certain parcel, to his wife, was construed to give her the fee notwithstanding an expressed desire that testator’s daughter should receive all property that her mother should have at her death. Wheeler v. Williams, 235 Miss. 142, 108 So. 2d 578, 1959 Miss. LEXIS 412 (Miss. 1959).

Under this section decedent’s transfer of land to herself as trustee for the benefit of her four children and the heirs at law of any of such children who should die during the continuance of the trust, with provision for distribution of the trust to the beneficiaries upon death of the trustee or her termination of the trust, vested the property in the trustee and the beneficiaries, so that the trust property was not part of decedent’s gross estate so as to be subject to federal estate taxes. Hays' Estate v. Commissioner, 181 F.2d 169, 1950 U.S. App. LEXIS 4012 (5th Cir. 1950).

Devise of land without words of inheritance vests fee-simple title. Strickland v. Delta Inv. Co., 163 Miss. 772, 137 So. 734, 1931 Miss. LEXIS 6 (Miss. 1931).

Devise to two daughters providing that in case of daughters’ predeceasing testatrix, their children were to inherit each mother’s share, or if one died without children whole estate was to go to other, or if both died without children estate was to go over, was a contingency providing against death of daughters before testatrix, and upon their survival of testatrix they took a fee simple. Nations v. Colonial & United States Mortg. Co., 115 Miss. 741, 76 So. 642, 1917 Miss. LEXIS 260 (Miss. 1917).

2. Deeds to railroads.

While Miss. Code Ann. §89-1-5 contained a presumption that a fee simple title passes unless expressly limited, there also existed a presumption of an easement when a deed failed to specifically identify a tract of land to be used for a railway, and where the railroad’s deed gave it a right to enter upon and hold the property, but did not convey the land itself, and the language that the conveyance was against the grantors and their heirs and assigns forever was not in the granting clause, the railroad only had a right of way, and thus, the interest that plaintiff potential purchasers of an industrial plant acquired from the railroad, through a quit claim deed for the property that adjoined the industrial plant, was only a right of way, and the potential purchasers’ claim of trespass against defendants, the industrial plant seller and the ultimate buyer, failed on defendants’ motion for summary judgment. Fibre Corp. v. GSO Am., Inc., 2005 U.S. Dist. LEXIS 37906 (S.D. Miss. Dec. 8, 2005).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Deeds § 23.

CJS.

26A C.J.S., Deeds § 42.

Cross References —

Partition of property, see §§11-21-1 et seq.

Larceny by cotenant, see §97-17-63.

JUDICIAL DECISIONS

1. In general.

2. Tenancy in common.

3. Joint tenancy.

4. Tenancy by entirety.

5. Conveyances to trustees.

6. Miscellaneous.

1. In general.

This section does not apply to mortgages or choses in action. Vaughn v. Vaughn, 238 Miss. 342, 118 So. 2d 620, 1960 Miss. LEXIS 411 (Miss. 1960).

The law does not favor joint estates with the right of survivorship. Cross v. O'Cavanagh, 198 Miss. 137, 21 So. 2d 473, 1945 Miss. LEXIS 176 (Miss. 1945).

The statute does not apply to conveyances made before its passage. Gresham v. King, 65 Miss. 387, 4 So. 120, 1888 Miss. LEXIS 4 (Miss. 1888).

2. Tenancy in common.

A reservation or conveyance of a fractional interest in minerals creates a tenancy-in-common between the parties as to the minerals. Thornhill v. System Fuels, Inc., 523 So. 2d 983, 1988 Miss. LEXIS 172 (Miss. 1988).

The rule which prevents one tenant in common from purchasing an outstanding title to the common property and setting it up against his cotenant is founded upon a confidential relation which is presumed to exist between them, and has no application where the circumstances surrounding them negative any such relation, and show that they, though in law tenants in common, are not such in fact, and are asserting hostile claims against each other with reference to the common property. Bayless v. Alexander, 245 So. 2d 17, 1971 Miss. LEXIS 1349 (Miss. 1971).

Where a will provided that two legatees were to take the dividends from certain bank stock for life with the power to sell stock upon agreement among themselves, the remainder to go to two named remaindermen, the relationship created was that of tenancy in common between the legatees, so that upon the death of one legatee his interest would pass to the remaindermen. Birmingham v. Conger, 222 So. 2d 388, 1969 Miss. LEXIS 1530 (Miss. 1969).

A conveyance to two or more individuals is presumed to create a tenancy in common in the named individuals, absent evidence rebutting such a presumption. Chevron Oil Co. v. Clark, 291 F. Supp. 552, 1968 U.S. Dist. LEXIS 12565 (S.D. Miss. 1968), aff'd in part and rev'd in part, 432 F.2d 280, 1970 U.S. App. LEXIS 7176 (5th Cir. Miss. 1970).

Where a trustee, who was the owner of a one-half interest in land, and a woman, who was the record owner of a one-half interest of the surface and three-tenths of the minerals in the land, were tenants in common, upon the conveyance by the trustee to a third person of his one-half interest, the third person became a tenant in common with the woman. Anderson v. Boyd, 229 Miss. 596, 91 So. 2d 537, 1956 Miss. LEXIS 642 (Miss. 1956).

Under will devising brother one-sixth, two sisters each one-third, and former wife one-sixth of remainder, their interest was estate in common, and admissions against interest by less than all of them were not admissible in will contest. Nebhan v. Mansour, 162 Miss. 418, 139 So. 166, 139 So. 878, 1932 Miss. LEXIS 120 (Miss. 1932).

Residuary legacy of real estate to two nephews for their lives made nephews tenants in common. Henry v. Henderson, 103 Miss. 48, 60 So. 33, 1912 Miss. LEXIS 138 (Miss. 1912).

Conveyance to “Pink Boutwell and wife” created tenancy in common, and husband and wife each owned an undivided one-half interest. Conn v. Boutwell, 101 Miss. 353, 58 So. 105, 1911 Miss. LEXIS 155 (Miss. 1911).

Upon renunciation of will by widow, executors who were residuary legatees became tenants in common with widow and were entitled to partition of the estate. Laughlin v. O'Reily, 92 Miss. 121, 45 So. 193, 1907 Miss. LEXIS 11 (Miss. 1907).

Unity of possession only necessary to constitute tenancy in common, regardless of commencement, quantum of interest, or source of title. Laughlin v. O'Reily, 92 Miss. 121, 45 So. 193, 1907 Miss. LEXIS 11 (Miss. 1907).

A child in esse at the date of a conveyance to his mother and children, takes as tenant in common with the mother, under this section. Brabham v. Day, 75 Miss. 923, 23 So. 578, 1898 Miss. LEXIS 36 (Miss. 1898).

Conveyance to three nieces for their lives, and at their death to the descendants of their bodies in fee, if any there be, and if they have none to survive them, then to the heirs of their brothers and sisters in fee, created a tenancy in common for the life of the last survivor of the nieces, the heirs of predeceasing tenants in common holding in common with the surviving tenants. Hawkins v. Hawkins, 72 Miss. 749, 18 So. 479, 1895 Miss. LEXIS 63 (Miss. 1895).

A devise to two persons, without other words, makes them tenants in common. Nichols v. Denny, 37 Miss. 59, 1859 Miss. LEXIS 3 (Miss. 1859).

3. Joint tenancy.

Award of the entire purchase price of a home to one of the unmarried joint tenants (JT1) was appropriate. Joint tenants were allowed to seek partition of a property under Miss. Code Ann. §11-21-3 partition, the chancellor could adjust the equities and determine the claims of the joint tenants under Miss. Code Ann. §11-21-9, and JT1 had paid the entire purchase price for the home along with the cost of all utilities, insurance, club dues, and taxes while JT2 had paid nothing. Jones v. Graphia, 95 So.3d 751, 2012 Miss. App. LEXIS 493 (Miss. Ct. App. 2012).

A deed conveying property to a husband and wife specifically created a joint tenancy, where it was conveyed to them “as joint tenants, not as tenants in common, but with the rights of survivorship in each upon death of either.” Ayers v. Petro, 417 So. 2d 912, 1982 Miss. LEXIS 2087 (Miss. 1982).

Although joint tenancies are not favored in Mississippi, they may be created by the use of specific language in the deed or other instrument. O'Connor v. Dickerson, 188 So. 2d 241, 1966 Miss. LEXIS 1374 (Miss. 1966).

Deeds to husband and wife “and the survivor of them” manifested an intention to create an estate in joint tenancy and not an estate in common, entitling the wife to take as survivor as against the heirs at law of her deceased husband. Wolfe v. Wolfe, 207 Miss. 480, 42 So. 2d 438, 1949 Miss. LEXIS 356 (Miss. 1949).

Deed of an undivided four-fifths interest in certain land to two persons “jointly” did not create joint tenancy with right of survivorship. Doran v. Beale, 106 Miss. 305, 63 So. 647, 1913 Miss. LEXIS 135 (Miss. 1913).

4. Tenancy by entirety.

Because the debtors owned their homestead as tenants by the entirety, any non-exempt equity in the debtors’ homestead could be administered only to the extent of the joint claims against the debtors. In re Pace, 521 B.R. 124, 2014 Bankr. LEXIS 4341 (Bankr. N.D. Miss. 2014).

Plaintiffs contended and defendant agreed that because defendant failed to have both plaintiffs, as tenants by the entirety, execute the construction contract, the lien did not attach to the property as a means of securing the debt owed only by one plaintiff to defendant, but the other plaintiff’s alleged knowledge and consent to work being done on property she owned might amount to authorization, regardless of whether or not she was a signatory to the contract, and summary judgment was inappropriate at this stage. Ward v. McCammon (In re Ward), 2014 Bankr. LEXIS 1200 (Bankr. N.D. Miss. Mar. 28, 2014).

Property was held by plaintiffs as tenants by the entirety, and by virtue of each spouse possessing an undivided interest in the entire estate, the property was not subject to unilateral action of less than all the owners. Ward v. McCammon (In re Ward), 2014 Bankr. LEXIS 1200 (Bankr. N.D. Miss. Mar. 28, 2014).

Chapter 13 debtor who owned real property with her husband as a tenant by the entireties, which she claimed as her homestead, was allowed under 11 U.S.C.S. § 522(b)(3)(B) to exempt the full value of the property from unsecured creditors’ claims for debts she incurred separately, when her husband did not join her in filing bankruptcy. Mississippi was a common law state, the common law of Mississippi constituted “applicable nonbankruptcy law” under § 522(b)(3)(B), and her homestead was exempt under Mississippi law from any process which could arise from the claims at issue. In re Dixon, 2011 Bankr. LEXIS 5680 (Bankr. S.D. Miss. Mar. 31, 2011).

Separate deeds may be used to sever estate in the entirety under narrow range of circumstances whereby both spouses act in concert pursuant to common purpose and without derogation of other’s right of survivorship. Thus, separate deeds could be used by husband and wife to sever estate in the entirety where both deeds were executed, acknowledged and recorded at same time and place, and ownership arrangement regarding property was clearly division of marital property in anticipation of spouses’ impending divorce. Newton v. Long, 588 So. 2d 192 (1991).

A tenancy by the entirety with right of survivorship was not converted to a tenancy in common by divorce of the parties; since a tenancy by the entirety is a joint tenancy with a right of survivorship plus the marital relation, even if the divorce terminated the tenancy by the entirety, the parties remained joint tenants with the right of survivorship and, upon the wife’s death, the property became the husband’s property. Shepherd v. Shepherd, 336 So. 2d 497, 1976 Miss. LEXIS 1510 (Miss. 1976).

A tenancy by the entireties in real property cannot be severed or destroyed by the act of one of the tenants. Cuevas v. Cuevas, 191 So. 2d 843, 1966 Miss. LEXIS 1227 (Miss. 1966).

5. Conveyances to trustees.

This section does not preclude the creation of a joint estate in trustees, which on the death of one will vest title in the survivors. King v. O'Tuckolofa Gun & Rod Club, 178 Miss. 606, 174 So. 83, 1937 Miss. LEXIS 252 (Miss. 1937).

The right of survivorship exists where the estate is conveyed to trustees jointly. McAllister v. Plant, 54 Miss. 106, 1876 Miss. LEXIS 16 (Miss. 1876).

6. Miscellaneous.

A deed in which a widower deeded land to himself and to the niece of his deceased wife as an “estate in the entirety with full rights of survivorship and not as tenants in common” was, under other Mississippi decisions and under the law generally, sufficient to vest the entire title to the property in the niece after the widower’s death. Welborn v. Henry, 252 So. 2d 779, 1971 Miss. LEXIS 1198 (Miss. 1971).

Where a cotenant’s widow in possession claimed property to the exclusion of the other cotenants for more than 10 years after the death of her husband, who had claimed the entirety of the property, and during such period the widow had received all benefits flowing from the land and had made all expenditures without accounting to anyone, there was the equivalent of an ouster of the other cotenants and she had clear full title by adverse possession, the fiduciary relationship usually presumed to exist between cotenants having no application here; since the circumstances surrounding the widow’s acquisition of title completely negated any such relation to the extent that it was the equivalent of an ouster of the other cotenants. Bayless v. Alexander, 245 So. 2d 17, 1971 Miss. LEXIS 1349 (Miss. 1971).

In an action brought by cotenants to confirm and establish their title to an undivided interest as cotenants in certain land as against claims of another cotenant, who had purchased a tax title to the property, the purchasing cotenant could not claim adverse possession as against her cotenants where there was no ouster of the cotenants such as would give them notice that her claim was adverse to their interest. Gavin v. Hosey, 230 So. 2d 570, 1970 Miss. LEXIS 1556 (Miss. 1970).

The purchase of an outstanding tax title to the common property by one cotenant inures to the benefit of all cotenants, the reason being the confidential relationship or position of trust presumed to exist between cotenants. Gavin v. Hosey, 230 So. 2d 570, 1970 Miss. LEXIS 1556 (Miss. 1970).

Where a grant or devise is made to one and his children, or issue, or the children of issue of his body, or equivalent words, and the named person has no child at the effective date of the instrument, the named person takes a fee simple title to the property conveyed or devised, unless the instrument, by express words or necessary implication, shows a clear intent to create a life estate in the named person, remainder to afterborn children or issue. Ewing v. Ewing, 198 Miss. 304, 22 So. 2d 225, 1945 Miss. LEXIS 198 (Miss. 1945).

A conveyance of realty, effective immediately, to the grantors’ daughter, “and the children of her body,” reserving a life estate to one of the grantors, does not, where there are no children in being on the effective date of the grant, give the daughter’s children an interest as tenants in common or joint tenants with their mother. Ewing v. Ewing, 198 Miss. 304, 22 So. 2d 225, 1945 Miss. LEXIS 198 (Miss. 1945).

Under will bequeathing estate to three living sisters and the heirs of deceased sister, and providing that at the death of the living sisters what was left of the estate was to go to the heirs of the deceased sister, the heirs are entitled to possession of each sister’s share upon her death, rather than upon the death of the last survivor of them. Cross v. O'Cavanagh, 198 Miss. 137, 21 So. 2d 473, 1945 Miss. LEXIS 176 (Miss. 1945).

RESEARCH REFERENCES

ALR.

Creation of right of survivorship by instrument ineffective to create estate by entireties or joint tenancy. 1 A.L.R.2d 247.

Use of debtor’s individual funds or property for acquisition, improvement of, or discharge of liens on, property held in estate by entireties as a fraud upon creditors. 7 A.L.R.2d 1104.

Capacity of cotenant to maintain suit to set aside conveyance of interest of another cotenant because of fraud, undue influence, or incompetency. 7 A.L.R.2d 1317.

Validity and effect of conveyance by one spouse to other of grantor’s interest in property held as estate by entireties. 8 A.L.R.2d 634.

Rights and remedies as between cotenants of cemetery lots respecting burials therein. 10 A.L.R.2d 219.

Retrospective operation of legislation affecting estates by the entireties. 27 A.L.R.2d 868.

Character of tenancy created by owner’s conveyance to himself and another, or to another alone, of an undivided interest. 44 A.L.R.2d 595.

Estate by entireties as affected by statute declaring nature of tenancy under grant or devise to two or more persons. 32 A.L.R.3d 570.

Felonious killing of one cotenant or tenant by the entireties by the other as affecting latter’s rights in the property. 42 A.L.R.3d 1116.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor’s spouse. 52 A.L.R.3d 753.

Estate created by deed to persons described as husband and wife but not legally married. 9 A.L.R.4th 1189.

Am. Jur.

20 Am. Jur. 2d, Cotenancy and Joint Ownership §§ 11-15, 28-31.

7 Am. Jur. Legal Forms 2d, Cotenancy and Joint Ownership §§ 75:51 et seq. (tenancy in common).

12 Am. Jur. Legal Forms 2d, Life Tenants and Remaindermen §§ 166:9 et seq. (creation of life estates and future interests).

20 Am. Jur. Proof of Facts 2d 321, Status of Property as Separate.

Young, Trial Handbook for Mississippi Lawyers § 19:15.

CJS.

86 C.J.S., Tenancy in Common §§ 7 et seq.

Cross References —

Descent of land generally, see §91-1-3.

JUDICIAL DECISIONS

1. In general.

Where a will devised one-half of a parcel of land to the testator’s son for life, and then to the heirs of the body of the son in fee simple, the testator intended to devise a life estate to the son, with remainder after his death to the heirs of his body in fee simple, should he have such heirs, and, upon the son dying without heirs, the devise lapsed and reverted to the heirs of the testator. Boxley v. Jackson, 191 Miss. 134, 2 So. 2d 160, 1941 Miss. LEXIS 125 (Miss. 1941).

The rule in Shelley’s Case was abolished by this section. Boxley v. Jackson, 191 Miss. 134, 2 So. 2d 160, 1941 Miss. LEXIS 125 (Miss. 1941).

The grantor may impose restrictions on alienation of land during the period of life of up to two persons. Russell v. Federal Land Bank, 180 Miss. 55, 176 So. 737, 1937 Miss. LEXIS 99 (Miss. 1937).

Where deed conveyed land to grantee for life and provided that on grantee’s death land should become property of grantee’s legal heirs and prohibited grantee from selling, mortgaging, or otherwise incumbering land, the restrictions on the alienation were valid. Russell v. Federal Land Bank, 180 Miss. 55, 176 So. 737, 1937 Miss. LEXIS 99 (Miss. 1937).

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. Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

Devise for life with remainder to heirs or heirs of body creates estate for life with remainder in fee. Stigler v. Shurlds, 131 Miss. 648, 95 So. 635, 1923 Miss. LEXIS 208 (Miss. 1923).

This section and Shelley’s Case held not to apply to conveyance to woman and heirs of her body, such not being grant to her for life with remainder to heirs of her body. Liberty Bank v. Wilson, 116 Miss. 377, 77 So. 145, 1917 Miss. LEXIS 310 (Miss. 1917).

Whether provision in deed was a gift over of the land in case of death of grantor without heirs, held not to be determined until event happens and person taking thereunder is before court. Liberty Bank v. Wilson, 116 Miss. 377, 77 So. 145, 1917 Miss. LEXIS 310 (Miss. 1917).

Devise to two daughters providing that in case of daughters’ deaths their children were to inherit their shares, or if one died without children whole estate was to go to other, or if both died without children estate was to go over, was a contingency providing against death of daughters before testatrix and upon their survival of testatrix they took a fee simple. Nations v. Colonial & United States Mortg. Co., 115 Miss. 741, 76 So. 642, 1917 Miss. LEXIS 260 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Grant to one for life, and afterwards, either absolutely or contingently, to grantor’s heirs or next of kin, as leaving reversion or creating remainder. 16 A.L.R.2d 691.

Nontrust life estate expressly given for support and maintenance, as limited thereto. 26 A.L.R.2d 1207.

Timber rights of life tenant. 51 A.L.R.2d 1374.

Modern status of the rule in Shelley’s Case. 99 A.L.R.2d 1161.

Duty as between life tenant and remainderman with respect to cost of improvements or repairs made under compulsion of governmental authority. 43 A.L.R.4th 1012.

Am. Jur.

23 Am. Jur. 2d, Deeds § 186.

28 Am. Jur. 2d, Estates §§ 102 et seq.

CJS.

26A C.J.S., Deeds §§ 248 et seq.

RESEARCH REFERENCES

Am. Jur.

28 Am. Jur. 2d, Estates § 211.

CJS.

31 C.J.S., Estates §§ 94 et seq.

Cross References —

Wills generally, see §§91-5-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Construction and application.

1. In general.

The purpose of this section is to make the test whether the person in question left issue surviving him at the time of his death or had issue born to him within ten months thereafter, instead of whether or not he may have at any time subsequent to the execution of a will in his favor have had issue which predeceased such a beneficiary. Hays v. Cole, 221 Miss. 459, 73 So. 2d 258, 1954 Miss. LEXIS 551 (Miss. 1954).

This section applies to the situation at common law where there would be construed to exist an indefinite failure of issue and thus a void fee tail estate. White v. Inman, 212 Miss. 237, 54 So. 2d 375, 1951 Miss. LEXIS 447 (Miss. 1951).

The statute fixes the period at which the contingent limitation is to take effect. Sims v. Conger, 39 Miss. 231, 1860 Miss. LEXIS 46 (Miss. 1860).

The statute was designed to give to certain words a meaning different from that before attached to them by the courts. Hampton v. Rather, 30 Miss. 193, 1855 Miss. LEXIS 86 (Miss. 1855); Jordan v. Roach, 32 Miss. 481, 1856 Miss. LEXIS 228 (Miss. 1856); Busby v. Rhodes, 58 Miss. 237, 1880 Miss. LEXIS 114 (Miss. 1880).

2. Construction and application.

Quitclaim deed executed to each other by four devisees of tract of land, each devisee having defeasible fee simple title, by which tract was divided into four parcels and each devisee took possession of his or her allotted parcel, served to separate use and income of divided parcels but could not confer upon respective grantees fee simple title to parcels as division was made subject to, and could not change, terms of will under which devisees took defeasible fee simple title. Crump v. Phelps, 207 Miss. 682, 43 So. 2d 105, 1949 Miss. LEXIS 379 (Miss. 1949).

Defeasible fee simple title is vested in named devisees under will providing trust for benefit of four named devisees and survivor or survivors of them and issue of deceased devisees subject to restriction that in event of death of devisee having no issue, devisee’s share is to be equally divided between surviving devisees and issue of those who may have died, issue to take by representation interest of deceased parent, and this interpretation of will is supported by this section against contention that executory limitation over could not become effective unless death of one of children of testatrix occurred prior to her death. Crump v. Phelps, 207 Miss. 682, 43 So. 2d 105, 1949 Miss. LEXIS 379 (Miss. 1949).

Statute providing that contingent limitation in will depending on the dying of any person without issue, or issue of the body, or without children, shall be interpreted as limitation to take effect when such person shall die not having such heir, or issue, or child, has reference to death of devisee or legatee, and in absence of contrary intention expressly declared on face of will, requires that the limitation over be interpreted as taking effect on death of one of devisees without issue at any time. Hanie v. Grissom, 178 Miss. 108, 172 So. 500, 1937 Miss. LEXIS 189 (Miss. 1937).

Limitation over contained in provision in will that if any of children to whom testatrix left certain realty should die without children, his or her share in realty should go equally to testatrix’ children that were living, was intended to take effect on death of child without issue at any time, whether before or after death of testatrix, and hence children took fee defeasible on their deaths without issue, leaving one or more of the other children surviving them. Hanie v. Grissom, 178 Miss. 108, 172 So. 500, 1937 Miss. LEXIS 189 (Miss. 1937).

Will executed in 1929 by testatrix dying in 1929, and providing that if any of children to whom testatrix left certain realty should die without children, his or her share in such realty should go equally to testatrix’ children that were living, held not violative of rule against perpetuities or the two-donee statute, as respects interest passing on death of one child in 1933 without issue. Hanie v. Grissom, 178 Miss. 108, 172 So. 500, 1937 Miss. LEXIS 189 (Miss. 1937).

As to share given directly to testator’s daughter, two-donee statute as it read in 1871 did not affect right of testator’s sisters and brothers nor their descendants from taking as purchasers under will. Darrow v. Moore, 163 Miss. 705, 142 So. 447, 1932 Miss. LEXIS 85 (Miss. 1932).

Devise to two daughters providing that in case of daughters predeceasing testatrix their children to inherit each daughter’s share, or if one died without children whole estate to go to other, or if both died without children estate to go over, contingency provided against was death of daughters before testatrix and upon their survival of testatrix they took a fee simple. Nations v. Colonial & United States Mortg. Co., 115 Miss. 741, 76 So. 642, 1917 Miss. LEXIS 260 (Miss. 1917).

The statute will not be construed to add the words “then living” to a limitation to the descendants of the donee of a life interest. Caldwell v. Willis, 57 Miss. 555, 1880 Miss. LEXIS 4 (Miss. 1880), disapproved, Carter v. Berry, 243 Miss. 356, 140 So. 2d 843 (Miss.).

In a devise to the son for life, and, after his death, to his lineal descendants, to the remotest posterity, and, in case of failure of lineal descendants, to the heirs of the devisor, the limitation over is void. Powell v. Brandon, 24 Miss. 343, 1852 Miss. LEXIS 56 (Miss. 1852).

In a devise to the daughter and the heirs of her body, but, if she die without issue, then to the children of the devisor alive at her death, the limitation over is valid. Kirby v. Calhoun, 16 Miss. 462, 1847 Miss. LEXIS 43 (Miss. 1847).

RESEARCH REFERENCES

ALR.

Nontrust life estate expressly given for support and maintenance, as limited thereto. 26 A.L.R.2d 1207.

Timber rights of life tenant. 51 A.L.R.2d 1374.

Modern status of the rule in Shelley’s Case. 99 A.L.R.2d 1161.

Am. Jur.

28 Am. Jur. 2d, Estates §§ 363 et seq.

CJS.

31 C.J.S., Estates § 144.

JUDICIAL DECISIONS

1. In general.

2. Construction of terms.

3. Restraints on alienation.

4. Validity of devise—generally.

5. —Partial validity.

6. —Under rule against perpetuities.

7. Resulting estates—generally.

8. —Fee simple.

9. —Life estate.

10. Miscellaneous.

1. In general.

The underlying purposes accomplished by the rule against perpetuities and the rule against restraints on alienation are the same. Patterson v. Patterson, 193 So. 2d 575 (Miss. 1967).

This section; prohibiting estates in fee tail does not by its terms abrogate the common law rule that disabling restraints upon the alienation of a legal life estate or fee are void. Patterson v. Patterson, 193 So. 2d 575 (Miss. 1967).

This statute deals only with conveyances or devises of lands, and is not applicable to personal property. Magee v. Estate of Magee, 236 Miss. 572, 111 So. 2d 394, 1959 Miss. LEXIS 352 (Miss. 1959).

This section not applicable to personalty. Thomas v. Thomas, 97 Miss. 697, 53 So. 630, 1910 Miss. LEXIS 313 (Miss. 1910).

2. Construction of terms.

A will devising testatrix’s real estate equally to a son and two daughters in common, and providing that if one of the devisees should die without leaving bodily heirs his or her share should go to the survivors, or if two of them should die without bodily heirs the land should go to the survivor, and that if either of the three devisees should die leaving bodily heirs, the heirs were to take the deceased parent’s share, violated the former “two donees” provision of this section (Code 1892, § 2436) permitting a devise of lands to a succession of donees then living not exceeding two and to the heirs of the body of the remainderman, and, in default thereof, to the right heirs of the donor, in fee simple, so that under the will the three devisees named as first takers took a determinable fee simple, subject to be defeated as to each share by the death of the devisee without bodily heirs, and upon the death of the two devisees named as first takers the entire estate finally vested in fee simple in the remaining devisee. Carter v. Sunray Mid-Continent Oil Co., 231 Miss. 8, 94 So. 2d 624, 1957 Miss. LEXIS 488 (Miss. 1957).

Under a conveyance to the grantors’ daughter “and the children of her body,” reserving a life estate to one of the grantors, the daughter, having no children at the time of the conveyance, takes a fee tail, which by this section [Code 1942, § 838] is converted into a fee simple. Ewing v. Ewing, 198 Miss. 304, 22 So. 2d 225, 1945 Miss. LEXIS 198 (Miss. 1945).

Where a grant or devise is made to one and his children, or issue, or the children or issue of his body, or equivalent words, and the named person has no child at the effective date of the instrument, the named person takes a fee simple title to the property conveyed or devised, unless the instrument, by express words or necessary implication, shows a clear intent to create a life estate in the named person, remainder to after-born children or issue. Ewing v. Ewing, 198 Miss. 304, 22 So. 2d 225, 1945 Miss. LEXIS 198 (Miss. 1945).

An intent on the part of the grantors of realty to an only daughter “and the children of her body,” to convey a life estate to the daughter with remainder to her children may not be inferred where, at the time of the conveyance, which was in consideration of love and affection, the daughter was only 16 years of age and unmarried, so that it was problematical whether she would ever have children. Ewing v. Ewing, 198 Miss. 304, 22 So. 2d 225, 1945 Miss. LEXIS 198 (Miss. 1945).

Where a will devised one-half of a parcel of land to the testator’s son for life, and then to the heirs of the body of the son in fee simple, the testator intended to devise a life estate to the son, with remainder after his death to the heirs of his body in fee simple, should he have such heirs, and, upon the son dying without heirs, the devise lapsed and reverted to the heirs of the testator. Boxley v. Jackson, 191 Miss. 134, 2 So. 2d 160, 1941 Miss. LEXIS 125 (Miss. 1941).

A former enactment of this statute; while permitting contingent ultimate limitations to the right heirs of the donor either generally or specifically, was construed as not changing the common law rule that a conveyance to one’s own right heirs, like a deed without a grantee is void, and that when right heirs are designated as a class as such limitees, they take by descent and not by purchase, but when they are named specifically as individuals, they take by purchase and not by descent. West Tennessee Co. v. Townes, 52 F.2d 764, 1931 U.S. Dist. LEXIS 1696 (D. Miss. 1931).

Gift to son in trust for donor’s children to farm lands during trust period and divide property, was donation to class, not violation of two-donee statute. Shannon v. Riley, 153 Miss. 815, 121 So. 808, 1929 Miss. LEXIS 80 (Miss. 1929).

Deed of property to one for life with remainder to children in fee, not an attempt to create estate in violation of this section. Reddoch v. Williams, 129 Miss. 706, 92 So. 831, 1922 Miss. LEXIS 84 (Miss. 1922).

Where death of persons is dealt with as uncertain event it is presumed that death at a particular time or under particular circumstances is meant, and where circumstances do not appear it is presumed death is to occur prior to death of devisee before vesting in him of the property in possession; holding otherwise would render devise void for uncertainty. Bibby v. Broome, 116 Miss. 70, 76 So. 835, 1917 Miss. LEXIS 299 (Miss. 1917).

Bequest for use of sons for life, then each father’s part to his children, to be theirs when they reach 21 years, providing if any died before age or condition fulfilled without brothers or sisters his share should go to surviving grandchildren of testatrix of proper age on condition fulfilled, created an executory devise and not an “estate tail.” Thomas v. Thomas, 97 Miss. 697, 53 So. 630, 1910 Miss. LEXIS 313 (Miss. 1910).

Where there was a devise to wife and children for their natural lives, and to children and heirs of their bodies if there should be any at the time of their death, and if not, to revert to the estate in gross and be again divided between testator’s wife and children and to their heirs, “they” to take a life estate only, and the grandchildren were to take only such share as their deceased parent would have taken, the word “they” should be construed to refer to children of the testator and not to any surviving grandchild, in view of the dominant purpose of the will to vest a life estate in the testator’s wife and children and remainder in fee to his grandchildren. Davenport v. Collins, 96 Miss. 716, 51 So. 449, 1910 Miss. LEXIS 143 (Miss. 1910).

3. Restraints on alienation.

Restraints on alienation during the lifetime of a life tenant are valid. Patterson v. Patterson, 193 So. 2d 575 (Miss. 1967).

Where will established a life estate in certain real property for one life tenant and prohibited sale of property until grandchildren remaindermen were 45 years of age, there resulted a restraint on alienation in excess of that permitted by this section. Patterson v. Patterson, 193 So. 2d 575 (Miss. 1967).

Clause in will prohibiting partition during life of widow, first life tenant, and of children, second life tenant, precludes partition during such period. Ford v. Smith, 162 Miss. 138, 137 So. 482, 1931 Miss. LEXIS 104 (Miss. 1931).

Testator may prevent alienation of property during period restrictions may be made under two-donee statute. Ford v. Smith, 162 Miss. 138, 137 So. 482, 1931 Miss. LEXIS 104 (Miss. 1931).

Devise in fee prohibiting alienation until 1975, with absolute devise over on death of first taker before such date, conveyed life estate subject to be converted into fee. Bratton v. Graham, 146 Miss. 246, 111 So. 353, 1927 Miss. LEXIS 179 (Miss. 1927).

Prohibition against alienation during life of first devisee is legal. Bratton v. Graham, 146 Miss. 246, 111 So. 353, 1927 Miss. LEXIS 179 (Miss. 1927).

Testator may prohibit alienation of life estate devised. Crawford v. Solomon, 131 Miss. 792, 95 So. 686, 1923 Miss. LEXIS 217 (Miss. 1923).

Where alienation not prohibited in will or deed, chancery court may sell land of minor for reinvestment, where interest is remainder. Crawford v. Solomon, 131 Miss. 792, 95 So. 686, 1923 Miss. LEXIS 217 (Miss. 1923).

4. Validity of devise—generally.

Provision limiting devise to 3 sisters and 2 brothers in case of death without descendants held invalid. Norfleet v. Norfleet, 151 Miss. 790, 119 So. 306, 1928 Miss. LEXIS 383 (Miss. 1928).

Devise of land to succession of donees, three in number, is void. Scott v. Turner, 137 Miss. 636, 102 So. 467, 1925 Miss. LEXIS 6 (Miss. 1925).

This section not violated where possible for remainder in fee to vest upon death of first life tenant. Stigler v. Shurlds, 131 Miss. 648, 95 So. 635, 1923 Miss. LEXIS 208 (Miss. 1923).

Principle that will may be sustained by dropping void ulterior limitation, not applicable where provision cannot be separated without interfering with manifest purpose of testator. Gully v. Neville, 55 So. 289 (Miss. 1911).

5. —Partial validity.

Although restraint upon alienation of a life estate until remaindermen thereof became 45 years of age was in excess of that permitted by this section, court applied doctrine of approximation and adjudicated the restraint valid during the life of the life tenant, and invalid thereafter. Patterson v. Patterson, 193 So. 2d 575 (Miss. 1967).

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. Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

Void ulterior limitations on estate will not void whole provision if first can be lawfully separated; will, if possible, will be sustained in so far as it does not offend against two-donee statute. Bratton v. Graham, 146 Miss. 246, 111 So. 353, 1927 Miss. LEXIS 179 (Miss. 1927).

Deed containing ulterior limitees held valid up to point where statute violated. Reddoch v. Williams, 129 Miss. 706, 92 So. 831, 1922 Miss. LEXIS 84 (Miss. 1922).

6. —Under rule against perpetuities.

Mississippi follows the “wait and see” doctrine with respect to the rule against perpetuities under which the future interest in question is held valid if the required contingency actually happens during the perpetuities period, even though the interest was not good at its creation because it was possible for the required contingency to happen outside the perpetuities period. C & D Inv. Co. v. Gulf Transport Co., 526 So. 2d 526, 1988 Miss. LEXIS 246 (Miss. 1988).

This section was inapplicable to a case where the court was called upon to determine whether the rule against perpetuities was violated by the provisions of a will leaving the bulk of testator’s estate in trust which was to terminate when testator’s youngest grandchild (whether living at the time of the execution of the will or thereafter born) became 25 years of age, but further providing that in no event should the trust continue for a longer period than 35 years from the date of the will. 243 Miss. 356, 140 So. 2d 843.

Court will construe ambiguous will, if reasonably possible, to render it valid under rule against perpetuities or two-donee statute. Bratton v. Graham, 146 Miss. 246, 111 So. 353, 1927 Miss. LEXIS 179 (Miss. 1927).

Where gift is invalid in part because of rule against perpetuities, separable parts violating rule may be rejected and rest upheld. Reddoch v. Williams, 129 Miss. 706, 92 So. 831, 1922 Miss. LEXIS 84 (Miss. 1922).

7. Resulting estates—generally.

Joint will operates as separate will of each; joint will of wife and second husband providing survivor to have property while unmarried, otherwise to go to all heirs, but if neither should marry at their death property to be divided between their heirs, wife intended to give husband life estate if he did not remarry with equal division among all her children by both husbands and their descendants, at his death. Hill v. Godwin, 120 Miss. 83, 81 So. 790, 1919 Miss. LEXIS 68 (Miss. 1919).

Devise for life with remainder to testator’s heirs, vested remainder in living heirs at testator’s death. Schlater v. Lee, 117 Miss. 701, 78 So. 700, 1918 Miss. LEXIS 214 (Miss. 1918).

Sons of donor held to take at his death a possibility coupled with an interest which they could convey. Alexander v. Richardson, 106 Miss. 517, 64 So. 217, 1913 Miss. LEXIS 165 (Miss. 1913).

8. —Fee simple.

Devise to A and heirs of his body is devise in fee simple. Bolton v. Barnett, 131 Miss. 802, 95 So. 721, 1923 Miss. LEXIS 220 (Miss. 1923).

Devise to son and daughter and heirs to be held, used, occupied and enjoyed in common until “my youngest grandchild now living or that may come into existence hereafter shall have reached the years of 21,” gave son fee simple subject only to limitation, if any as to joint use, possession, etc. Fairchild v. Hardinson, 120 Miss. 236, 82 So. 73, 1919 Miss. LEXIS 82 (Miss. 1919).

Conveyance to woman and heirs of her body was conveyance in fee simple. Liberty Bank v. Wilson, 116 Miss. 377, 77 So. 145, 1917 Miss. LEXIS 310 (Miss. 1917).

Devise to two daughters providing that in case of their deaths, their children were to inherit each mother’s share, or if one died without children whole estate was to go to other daughter, or if both died without children estate was to go over, contingency provided against was death of daughters before testatrix and upon their survival of testatrix they took a fee simple. Nations v. Colonial & United States Mortg. Co., 115 Miss. 741, 76 So. 642, 1917 Miss. LEXIS 260 (Miss. 1917).

Devise of land to nephew “and to the heirs of his body,” gave nephew fee simple title. Wallace v. Wallace, 114 Miss. 591, 75 So. 449, 1917 Miss. LEXIS 77 (Miss. 1917).

Devise of lands to four daughters providing part of any dying without issue to go to survivors, gave each of daughters a fee simple defeasible upon death without issue leaving one or more devisees surviving, and was a valid executory devise. Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006, 1916 Miss. LEXIS 104 (Miss. 1916).

Will devising land to nephews equally with provision that each should transfer his share to his children, and if any died without children his share to go to survivor or survivors, but if all died without children the entire property should go to grandsons for life or their heirs, or, on failure of heirs in both lines then to next of kin always preferring those bearing testator’s name in equal degree of kinship, violated this statute and nephews took in fee. Nicholson v. Fields, 111 Miss. 638, 71 So. 900, 1916 Miss. LEXIS 354 (Miss. 1916).

Will of all testator’s property to his “sister, at her death the heirs to have it,” gave sister fee simple title. Harring v. Flowers, 91 Miss. 242, 45 So. 571, 1907 Miss. LEXIS 187 (Miss. 1907).

Conveyance or devise in trust to one and the heirs of his body creates a trust estate in fee simple. Powell v. Brandon, 24 Miss. 343, 1852 Miss. LEXIS 56 (Miss. 1852); Jordan v. Roach, 32 Miss. 481, 1856 Miss. LEXIS 228 (Miss. 1856); Dibrell v. Carlisle, 48 Miss. 691, 1873 Miss. LEXIS 91 (Miss. 1873).

9. —Life estate.

Where decedent died intestate, and the surviving children entered into an agreement effectively creating a life estate for one sibling who remained on the farm, the trial court properly applied contract interpretation rules, properly found that the intent of the agreement was not to limit restraint on alienation only to time of execution of contract, and properly held the agreement was not an unreasonable restraint on alienation; thus, plaintiff’s partition action was dismissed. In re Estate of Harris v. Harris, 840 So. 2d 742, 2003 Miss. App. LEXIS 188 (Miss. Ct. App. 2003).

Devise of land to person for life with remainder to heirs creates life estate with remainder in fee. Stigler v. Shurlds, 131 Miss. 648, 95 So. 635, 1923 Miss. LEXIS 208 (Miss. 1923).

Devise of all estate to wife during widowhood, providing that if she remarried she should have one-half thereof during life with remainder to her children or if no children to testator’s relatives, other half to go immediately to testator’s relatives, gave wife at most indefeasible, nondevisable, and nondescendable life estate, and on her death without children her relatives took nothing. Hale v. Neilson, 112 Miss. 291, 72 So. 1011, 1916 Miss. LEXIS 107 (Miss. 1916).

Residuary devise of estate in equal shares to 7 children for life, providing on death of any his share should be equally divided among remainder, and on death of last child property to be equally divided among all testator’s living grandchildren, was single gift of life estate continuing in life tenants as a class until all dead with remainder to grandchildren in fee, and did not violate statute. Redmond v. Redmond, 104 Miss. 512, 61 So. 552, 1913 Miss. LEXIS 58 (Miss. 1913).

Residuary devise to two nephews for their lives, and at their death to the heirs of their body, with gift over in case of their death without issue was in effect devised to each for life of survivor, so that only life of survivor could be counted in the succession of donees, and so construed did not violate statute. Henry v. Henderson, 103 Miss. 48, 60 So. 33, 1912 Miss. LEXIS 138 (Miss. 1912).

10. Miscellaneous.

A residuary bequest to the testator’s son and grandchildren in equal shares, naming the five grandchildren who were alive at the time of execution, constituted a class bequest to all of the grandchildren rather than an individual bequest to each of the named grandchildren, where the evidence revealed that the testator was not aware that a sixth grandchild had been conceived, and that he was no less fond of the sixth grandchild than of the other five. Cain v. Dunn, 241 So. 2d 650, 1970 Miss. LEXIS 1351 (Miss. 1970).

This section had no application to the validity of a gas and oil lease, under which any interest acquired by the lessee was conveyed to him to take effect in praesenti, and by which provision was made for renewal as long as gas and oil should be produced in paying quantities, it was stipulated that if no well should be commenced before a specified date the lease would terminate, unless the lessee by such date should tender the lessor the sum of $100, which payment should operate as a renewal for twelve months, and that further deferments for like periods might be procured by similar payments, but which lease contained no limitation to postpone the vesting of the interest acquired until a future date, or that could be said to result in a restraint against alienation either to the mineral rights or to the fee itself. Lloyd's Estate v. Mullen Tractor & Equipment Co., 192 Miss. 62, 4 So. 2d 282, 1941 Miss. LEXIS 4 (Miss. 1941).

Testator’s brothers and sisters of half blood, not being right heirs, gift over to them jointly with brothers and sisters of whole blood made them third donees under statute, and they could not take under will. Darrow v. Moore, 163 Miss. 705, 142 So. 447, 1932 Miss. LEXIS 85 (Miss. 1932).

In the absence of descriptive words to point out the individuals who were to take as contingent ultimate limitees, under a former enactment of this provision, right heirs took by descent and not by purchase. West Tennessee Co. v. Townes, 52 F.2d 764, 1931 U.S. Dist. LEXIS 1696 (D. Miss. 1931).

Under deed conveying standing timber with ten-year limitation to remove, right to perpetual extension of time for removal does not violate this section. Nichols v. Day, 128 Miss. 756, 91 So. 451, 1922 Miss. LEXIS 164 (Miss. 1922).

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Am. Jur.

28 Am. Jur. 2d, Estates §§ 44 et seq.

CJS.

31 C.J.S., Estates §§ 24-26 et seq.

JUDICIAL DECISIONS

1. Conveyance as passing grantor’s interest only.

2. Merger.

1. Conveyance as passing grantor’s interest only.

A will devising real property to the testator’s wife “to be hers during her lifetime, and to use the same for her personal comfort and benefit, as she may see fit and proper, without hindrance or trouble from anyone,” creates only a life estate in the widow and does not, at her discretion, vest her with power to sell the fee. Old Ladies Home Asso. v. Platt, 252 Miss. 260, 172 So. 2d 770, 1965 Miss. LEXIS 1098 (Miss. 1965).

The objection that statutory provision permitting lease of sixteenth section lands for oil, gas and mineral exploration and development, and for entry upon such lands for such purposes, was unconstitutional because the lease might under its terms remain in force so long as oil and gas should be produced from the land and therefore longer than the 25 years prescribed by a constitutional provision, is obviated by the statute providing that conveyances purporting to convey or pass a greater estate than the grantor might lawfully convey or pass, shall operate and pass such a right or estate as the grantor might lawfully convey. Pace v. State, 191 Miss. 780, 4 So. 2d 270, 1941 Miss. LEXIS 184 (Miss. 1941).

Deed conveying partnership property passes interests of only those partners actually executing it. Tinnin v. Brown, 98 Miss. 378, 53 So. 780, 1910 Miss. LEXIS 74 (Miss. 1910).

Supervisors’ deed to timber on school land passes only such interest as they could convey. L. N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, 1910 Miss. LEXIS 286 (Miss. 1910), limited, Merrill Engineering Co. v. Capital Nat'l Bank, 192 Miss. 378, 5 So. 2d 666, 1942 Miss. LEXIS 5 (Miss. 1942).

Grantee in deed from widow with only dower interest does not hold adversely to remaindermen until widow’s death. Anglin v. Broadnax, 97 Miss. 514, 52 So. 865, 1910 Miss. LEXIS 282 (Miss. 1910).

Deed from widow with only dower interest conveys only a life estate. Barrier v. Young, 96 Miss. 160, 50 So. 559, 1909 Miss. LEXIS 32 (Miss. 1909).

Vendor’s right to subject land to payment of purchase money is affected by this statute. Howell v. Hill, 94 Miss. 566, 48 So. 177, 1909 Miss. LEXIS 337 (Miss. 1909).

2. Merger.

This section prevents merger of contingent remainder and life estate in holder of fee. City Sav. Bank & Trust Co. v. Cortright, 122 Miss. 75, 84 So. 136, 1920 Miss. LEXIS 420 (Miss. 1920).

RESEARCH REFERENCES

ALR.

Termination of trust where life interest and remainder or reversion are acquired by same person. 50 A.L.R.2d 1161.

Conveyance of land as including mature but unharvested crops. 51 A.L.R.4th 1263.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Am. Jur.

23 Am. Jur. 2d, Deeds § 289.

28 Am. Jur. 2d, Estates §§ 162, 163.

51 Am. Jur. 2d, Life Tenants and Remaindermen § 84.

CJS.

26A C.J.S., Deeds §§ 231-246 et seq.

Cross References —

Unlawful entry and detainer generally, see §§11-25-1 et seq.

Descent of land, see §91-1-3.

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Cross References —

Constitutional provision in regard to landholding by corporations, see MS Const Art. 4, § 84.

Limitation of actions to recover realty because of defective conveyance by corporation, see §15-1-11.

Prohibition against corporation purchasing public lands, see §29-1-75.

JUDICIAL DECISIONS

1. In general.

A bank was not obligated to go behind this section authorizing a private corporation to convey lands by conveyance signed in its name by an officer or authorized agent, or behind a certified copy of a corporate resolution delivered to it by the corporation’s secretary, providing that the president and any vice-president could execute deeds of trust, to determine whether the two officers who did execute a deed of trust were in fact authorized to do so by the corporate resolution which appeared on the corporate minutes. Rivervalley Co. v. Deposit Guaranty Nat'l Bank, 331 F. Supp. 698, 1971 U.S. Dist. LEXIS 12606 (N.D. Miss. 1971).

Corporate deed executed by secretary to himself as grantee not void, where president also joined. Mexican Gulf Land Co. v. Globe Trust Co., 125 Miss. 862, 88 So. 512, 1921 Miss. LEXIS 174 (Miss. 1921).

Unsealed deed by corporation will not support plaintiff’s title in ejectment. Littelle v. Creek Lumber Co., 99 Miss. 241, 54 So. 841, 1911 Miss. LEXIS 199 (Miss. 1911).

RESEARCH REFERENCES

Am. Jur.

19 Am. Jur. 2d, Corporations § 1791.

CJS.

19 C.J.S., Corporations §§ 644 et seq.

Cross References —

Institution of quo warranto proceedings against alien acquiring or holding land contrary to law, see §11-39-3.

Prohibition against nonresident alien purchasing public lands, see §29-1-75.

Escheats generally, see §§89-11-1 et seq.

JUDICIAL DECISIONS

1. In general.

Circumstances negated prolongation of three year period in which Honduran widow of United States citizen owning land in Mississippi could sell the land and keep the proceeds, as provided by 1928 treaty with Honduras, where widow, although represented by counsel during closing of husband’s affairs in Honduras, made no inquiry nor took any action to sell land during twelve year period between her husband’s death and her own. De Tenorio v. McGowan, 510 F.2d 92, 1975 U.S. App. LEXIS 15570 (5th Cir. Miss. 1975).

This section yields to any applicable provision of any valid treaty of the United States with a foreign country, constituting a part of the supreme law of the land under article 6, clause 2, of the United States Constitution. De Tenorio v. McGowan, 510 F.2d 92, 1975 U.S. App. LEXIS 15570 (5th Cir. Miss. 1975).

This section [Code 1942, § 842] is void, in so far as it conflicts with any existing treaty between the United States and the Republic of Italy. Guiseppe v. Cozzani, 238 Miss. 273, 118 So. 2d 189, 1960 Miss. LEXIS 401 (Miss. 1960).

Foreign corporation may do business in other state or country and sue in its courts, unless forbidden by statute or contrary to public policy. State ex rel. Brown v. Scottish American Mortg. Co., 111 Miss. 98, 71 So. 291, 1916 Miss. LEXIS 247 (Miss. 1916).

Foreign corporation, purchaser of land under trust deed, did not, by agreeing to rescind contract of sale to residents because of defect in title and repaying purchase price, become purchaser at sale for payment of debt as it merely reacquired its original title; statute contemplates involuntary sale where alien buys only as last resort to protect lien. State ex rel. Brown v. Scottish American Mortg. Co., 111 Miss. 98, 71 So. 291, 1916 Miss. LEXIS 247 (Miss. 1916).

Common law excluded alien from inheriting from citizen. Scottish American Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666, 1910 Miss. LEXIS 14 (Miss. 1910).

Nonresident alien mortgagee obtaining possession through tenants under void sale and receiving rents for more than 10 years under claim of title secured a perfect title against mortgagor. Scottish American Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666, 1910 Miss. LEXIS 14 (Miss. 1910).

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Am. Jur.

3B Am. Jur. 2d, Aliens and Citizens §§ 1731, 1732.

CJS.

3 C.J.S., Aliens §§ 5 et seq.

Cross References —

Authority of board of supervisors to sell real estate belonging to county, see §19-7-3.

Power of municipality to sell real estate, see §21-17-1.

Sale of school property not used for school purposes, see §§37-7-451,37-27-43.

OPINIONS OF THE ATTORNEY GENERAL

Any interest of the municipality in property owned by the county may be extinguished pursuant to this section by (a) a conveyance of such interest by the city to the county, or (b) the execution by the city of a quitclaim deed or disclaimer of title to a purchaser from the county. Creekmore, March 26, 1999, A.G. Op. #99-0129.

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Cross References —

Operation of chancery court decree as conveyance, see §11-5-85.

Conveyance of land sold under execution, see §§13-3-187,13-3-189.

Sales under execution, see §13-3-161.

Form of conveyance by sheriff, see §89-1-65.

Form of conveyance by administrator, executor, guardian, master, or commissioner, see §89-1-67.

Indexing of conveyances by sheriffs, constables, marshals, masters, commissioners, executors, administrators, guardians, or trustees, see §89-5-35.

Power of executors and administrators to make deeds of conveyance, see §91-7-223.

Sale of land by guardian in the interest of ward, see §93-13-51.

JUDICIAL DECISIONS

1. In general.

Tax deed erroneously reciting sale made March 4, 1906, instead of correct date March 4, 1907, cannot be reformed or validated in ex parte proceeding before supervisors. Clark v. Hibbler, 109 Miss. 432, 69 So. 220, 1915 Miss. LEXIS 175 (Miss. 1915).

Purchaser at sheriff’s or commissioner’s sale is purchaser in invitum, and caveat emptor applies. Wells v. Gay & Ellarbee, 93 Miss. 268, 46 So. 497 (Miss. 1908).

Sale under trust deed of 400 acres in bulk instead of 160 acre tracts is void. McClusky v. Trussel, 90 Miss. 544, 44 So. 69, 1907 Miss. LEXIS 110 (Miss. 1907).

Amendment Notes —

The 2007 amendment added “or by an attorney in fact for the spouse” to the end of the first sentence; and added the last sentence.

The 2008 amendment rewrote the second and third sentences; in the fourth sentence, substituted “finds the spouse to be incompetent” for “finds the spouse to be insane”; and made a minor stylistic change.

Cross References —

Conveyances by attorney in fact generally, see §87-3-3.

JUDICIAL DECISIONS

1. In general.

2. Construction with other laws.

3. What constitutes homestead.

4. Validity of conveyances in general.

5. —Conveyance pursuant to premarital contract.

6. —Conveyance to spouse.

7. —Miscellaneous.

8. Validity of incumbrances in general.

9. —Instrument securing payment of purchase money.

10. —Miscellaneous.

11. Effect of abandonment of homestead.

12. Effect of change of residence.

13. Effect of separation or divorce of parties to marriage.

14. Rights and remedies of spouses.

15. Rights of grantees under deeds.

16. Rights of agents under real estate listing contracts.

17. Pleading.

18. Limitation of actions.

19. Application of doctrine of estoppel.

1. In general.

Court is unwilling to read the statute to require that both spouses sign a homestead application in order for it to be effective. Dixon v. Jones (In re Will of Jones), 138 So.3d 205, 2014 Miss. App. LEXIS 230 (Miss. Ct. App. 2014).

There was no merit in bank customers’ argument that the 1997 renewal and extension of the previous deeds of trust deprived them of their homestead exemption; the customers admitted that the bank had a lien on their house at all times prior to the 1997 renewal. Whitefoot v. BancorpSouth Bank, 856 So. 2d 639, 2003 Miss. App. LEXIS 591 (Miss. Ct. App. 2003), cert. denied, 866 So. 2d 473, 2004 Miss. LEXIS 206 (Miss. 2004), cert. denied, 543 U.S. 833, 125 S. Ct. 148, 160 L. Ed. 2d 52, 2004 U.S. LEXIS 5851 (U.S. 2004).

Statutes granting homestead exemption are entitled to be liberally construed. Daily v. Gulfport, 212 Miss. 361, 54 So. 2d 485, 1951 Miss. LEXIS 457 (Miss. 1951).

Conditions existing at time of execution of the instrument conveying homestead determine its validity or invalidity, which cannot be affected by subsequent events. Hughes v. Hahn, 209 Miss. 293, 46 So. 2d 587, 1950 Miss. LEXIS 388 (Miss. 1950).

If a husband owns no assignable interest in the land which might otherwise be claimed as a homestead, statute has no application. Davis v. Davidor, 200 Miss. 657, 27 So. 2d 371, 1946 Miss. LEXIS 335 (Miss. 1946).

A conveyance of the homestead by the husband in which the wife does not join is not valid or binding if he is living with his wife or, even if he is not living with her, if at the time of the execution thereof the husband was non compos mentis touching all matters connected with and all duties and obligations owing to her. Moseley v. Larson, 86 Miss. 288, 38 So. 234, 1905 Miss. LEXIS 18 (Miss. 1905).

A person who is both a citizen and resident of this state, as well as a householder having a family, is entitled to homestead exemption. Vignaud v. Dean, 77 Miss. 860, 27 So. 881, 1900 Miss. LEXIS 37 (Miss. 1900).

The owner of a homestead has no vested right in the statute prescribing the mode of the alienation; and the law requiring the wife to join in the conveyance by the husband of his homestead applies to all conveyances hereafter made by him, although he owned the land in fee in his own right prior to the passage of the statute. Massey v. Womble, 69 Miss. 347, 11 So. 188, 1891 Miss. LEXIS 94 (Miss. 1891).

The section [Code 1942, § 332] does not prevent the wife from devising her homestead. Kelly v. Alred, 65 Miss. 495, 4 So. 551, 1888 Miss. LEXIS 30 (Miss. 1888).

The conditions existing at the time of the execution of the instrument determine its validity. Cummings v. Busby, 62 Miss. 195, 1884 Miss. LEXIS 51 (Miss. 1884).

2. Construction with other laws.

In view of the provisions of §§11-21-3,93-3-1 and93-3-3, §89-1-29 did not preclude a wife, who held real property as joint tenant with husband from whom she was separated but not divorced, from maintaining an action to partition the property, notwithstanding that husband continued to reside on the property and claimed it as his homestead. Trigg v. Trigg, 498 So. 2d 334, 1986 Miss. LEXIS 2779 (Miss. 1986).

Conveyance of homestead by husband alone in settlement of claim for labor is governed by this section [Code 1942, § 330] and not Code 1906, § 2156 [Code 1942, § 327]. Chatman v. Poindexter, 101 Miss. 496, 58 So. 361, 1911 Miss. LEXIS 163 (Miss. 1911).

3. What constitutes homestead.

In a suit by an heir of deceased grantor to enjoin removal of timber from grantor’s homestead under a timber deed which was void as to homestead because the wife of grantor did not sign, where it appeared that the grantor did not specifically designate the 160 acres which constituted the homestead tract out of 300 acre tract covered by deed, and the court should have appointed commissioners under the statute to make the allotment. Thompson v. Dyess, 218 Miss. 770, 67 So. 2d 721, 1953 Miss. LEXIS 602 (Miss. 1953).

The statute does not require the actual utilization of every acre of land in a tract before it can be claimed as a homestead. Daily v. Gulfport, 212 Miss. 361, 54 So. 2d 485, 1951 Miss. LEXIS 457 (Miss. 1951).

Where lands are not contiguous because a road separated them, such a separation does not necessarily defeat a homestead claim. Daily v. Gulfport, 212 Miss. 361, 54 So. 2d 485, 1951 Miss. LEXIS 457 (Miss. 1951).

4. Validity of conveyances in general.

Statutory signature requirement cannot be waived; by statute, the quitclaim deed attempting to convey the home without the wife’s signature was invalid. Dixon v. Jones (In re Will of Jones), 138 So.3d 205, 2014 Miss. App. LEXIS 230 (Miss. Ct. App. 2014).

Wife’s homestead was to be determined as of the date of execution of the deed. Since the husband and wife still lived on the Tate County farm when the deed was executed, the wife was entitled to a homestead exemption; it was only after the land swap that the wife filed a homestead application in DeSoto County, and the chancellor properly declared the exchange deed (between the father and a son), void as to the wife’s homestead interest. Davis v. Smith, 922 So. 2d 814, 2005 Miss. App. LEXIS 554 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 130 (Miss. 2006).

Conveyance of homestead to third parties by husband during lifetime of wife without her joining in conveyance is void. Ward v. Ward, 517 So. 2d 571, 1987 Miss. LEXIS 2968 (Miss. 1987).

In order to be valid, wife must sign her husband’s conveyance of homestead property pursuant to the requirements of Code 1972, §89-1-29, and where deed to homestead property was signed only by the husband without his wife’s knowledge or approval, and there was nothing to indicate that the wife had any intent to abandon a conjugal relationship with her husband or to abandon the occupancy of the property, the deed was void. Hendry v. Hendry, 300 So. 2d 147, 1974 Miss. LEXIS 1614 (Miss. 1974).

A conveyance of homestead which is not signed by the wife of the owner is void. Travis v. Dantzler, 244 Miss. 360, 141 So. 2d 556, 1962 Miss. LEXIS 455 (Miss. 1962).

A deed is void as to the owner of the homestead who has executed a deed to the same until the other spouse joins therein with the contemporaneous consent of both; consequently, there can be no joinder by the wife in the execution of a conveyance of the homestead by the husband unless she executes the conveyance during his lifetime and with his consent. Hughes v. Hahn, 209 Miss. 293, 46 So. 2d 587, 1950 Miss. LEXIS 388 (Miss. 1950).

A deed to the husband’s homestead is not invalid where the husband and wife each executed it, with the knowledge and consent of the other, although they did not execute it at the same time. Hughes v. Hahn, 209 Miss. 293, 46 So. 2d 587, 1950 Miss. LEXIS 388 (Miss. 1950).

A deed by the husband which attempts to convey away the homestead without the joinder of the wife in the execution of the conveyance is null and void as to both the husband and wife. Hughes v. Hahn, 209 Miss. 293, 46 So. 2d 587, 1950 Miss. LEXIS 388 (Miss. 1950).

Deed to homestead by husband alone is void. Yazoo Lumber Co. v. Clark, 95 Miss. 244, 48 So. 516, 1909 Miss. LEXIS 215 (Miss. 1909).

Common and contemporaneous consent existing, fact that wife signed deed to homestead 8 months after husband did not make it void. Howell v. Hill, 94 Miss. 566, 48 So. 177, 1909 Miss. LEXIS 337 (Miss. 1909).

Conveyance of homestead by wife without joinder of husband is a nullity. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

5. —Conveyance pursuant to premarital contract.

Husband’s deed to homestead without wife’s joinder not void, where made pursuant to contract entered into prior to marriage. Minor v. Interstate Gravel Co., 130 Miss. 553, 94 So. 3, 1922 Miss. LEXIS 201 (Miss. 1922).

6. —Conveyance to spouse.

While one spouse may convey to another spouse his or her interest in homestead property, statutory mandate that any conveyance of that homestead without joinder of both spouses is invalid still applies to any conveyance to third party. There can be no operative conveyance or effectual release of exemption unless statutory method is pursued with strictness, and no requirement of statute may be waived by husband and wife or by either of them. Ward v. Ward, 517 So. 2d 571, 1987 Miss. LEXIS 2968 (Miss. 1987).

Deed signed by husband only, conveying part of homestead to wife and stepdaughter, held ineffective to convey interest to stepdaughter, though valid as between husband and wife. Smith v. Stanley, 159 Miss. 720, 132 So. 452, 1931 Miss. LEXIS 68 (Miss. 1931).

Husband may make valid deed conveying homestead to wife, but this does not defeat his right to occupy. Williams v. Green, 128 Miss. 446, 91 So. 39, 1922 Miss. LEXIS 128 (Miss. 1922).

Deed to homestead by husband alone invalid, though wife one of grantees. Chatman v. Poindexter, 101 Miss. 496, 58 So. 361, 1911 Miss. LEXIS 163 (Miss. 1911).

7. —Miscellaneous.

While it may have been the testator’s intent to quitclaim the home to himself and his daughter, and to her alone after his death, he did not legally do so, as the quitclaim deed was signed solely by the testator, who was married, and this was not sufficient under the law. Dixon v. Jones (In re Will of Jones), 138 So.3d 205, 2014 Miss. App. LEXIS 230 (Miss. Ct. App. 2014).

Miss. Code Ann. §89-1-29 was a clear, unambiguous statute and its plain meaning had to be applied. Because the requirements of the statute were not met, i.e., a husband had not signed the deed of trust as required by the statute, the deed of trust was neither valid nor binding, and a trial court’s judgment so declaring was affirmed. Countrywide Home Loans, Inc. v. Parker, 975 So. 2d 233, 2008 Miss. LEXIS 104 (Miss. 2008).

Forfeited tax patent obtained from the State of Mississippi was set aside because a husband conveyed homestead property without permission from his wife; therefore, the conveyance was void under Miss. Code Ann. §89-1-29, and taxes should not have accumulated on the land since a total homestead exemption applied. Alexander v. Daniel, 904 So. 2d 172, 2005 Miss. LEXIS 370 (Miss. 2005).

In a proceeding to determine heirship, the chancellor did not err in holding that a deed was not signed by, or with the authority of, a wife, as required by §89-1-29. Goodwin v. McMurphy, 435 So. 2d 639, 1983 Miss. LEXIS 2617 (Miss. 1983).

Warranty deed from mother to daughter, conveying homestead property on which mother and father were living as their home, was void where father’s interest, granted to daughter by quitclaim deed, was not conveyed until some four years later. Gilmer v. Freeman, 336 So. 2d 717, 1976 Miss. LEXIS 1512 (Miss. 1976).

A married woman who executes an oil and gas lease of homestead property without joinder of her husband ratifies it where, after obtaining a divorce, she conveys the subject property and quitclaims her rights to oil and gas. Bounds v. Ohio Oil Co., 234 Miss. 277, 106 So. 2d 66, 1958 Miss. LEXIS 487 (Miss. 1958).

This section [Code 1942, § 332] requiring husband to join in conveyance of wife’s homestead is not applicable where a husband and wife were separated for nine years when wife executed a mineral lease. Schmidt v. Humble Oil & Refining Co., 219 F.2d 551, 1955 U.S. App. LEXIS 4856 (5th Cir. Miss. 1955).

Where a wife did not join with husband in execution of a mineral deed, and the husband owned a legal title to the property, the mineral deed was valid as to the minerals which were under the land not within the homestead interest of the wife, but was invalid as to minerals under the homestead property. Lee v. Duncan, 220 Miss. 234, 70 So. 2d 615, 1954 Miss. LEXIS 431 (Miss. 1954).

Where husband executed deed to daughter of tract of land including homestead in 1942, but wife did not join in the conveyance until 1948 after the husband’s death and after suit by his heirs for partition, deed by husband was null and void as to homestead and title thereof descended to his heirs at law as tenants in common. Hughes v. Hahn, 209 Miss. 293, 46 So. 2d 587, 1950 Miss. LEXIS 388 (Miss. 1950).

Execution by husband and wife of deed to homestead property to son, delivery of deed to clerk and its recordation, son being overseas in war, vested record and legal title to property in son, which could not be destroyed by destruction of recorded deed by mother. Wilbourn v. Wilbourn, 204 Miss. 206, 37 So. 2d 256, 1948 Miss. LEXIS 356 (Miss. 1948).

The conveyance of a part of a homestead by a woman alone while living with a man as his common-law wife after their earlier divorce and her subsequent marriage to another, who died shortly after assumption of the matrimonial common-law status, was invalid because not signed by the common-law husband. Oatis v. Mingo, 199 Miss. 896, 26 So. 2d 453, 1946 Miss. LEXIS 259 (Miss. 1946).

8. Validity of incumbrances in general.

In light of its dicta finding much force in the argument that the statute does not require a joint deed of husband and wife, the Mississippi Supreme Court would likely hold that a valid deed of trust was created when spouses contemporaneously signed separate but identical deeds of trust to their homestead because the parties clearly intended to create a valid deed of trust as part of one global transaction. Avakian v. Citibank, N.A., 773 F.3d 647, 2014 U.S. App. LEXIS 23159 (5th Cir. Miss. 2014).

Construing spouses’ separately signed deeds of trust to their homestead together comports with the basic purpose of protecting the spouses because the deeds of trust provide a clear written record of the couples’ contemporaneous consent to the creation of a deed of trust. Avakian v. Citibank, N.A., 773 F.3d 647, 2014 U.S. App. LEXIS 23159 (5th Cir. Miss. 2014).

Pursuant to Miss. Code Ann. §89-1-29, where the wife debtor did not sign the deed of trust signed by her husband in favor of the creditor, the deed of trust was null and void. The fact that the wife conveyed the property to the husband on the same date that he signed the deed of trust did not affect this result. Rhymes v. Countrywide Home Loans, Inc. (In re Rhymes), 2008 Bankr. LEXIS 779 (Bankr. S.D. Miss. Mar. 14, 2008).

Pursuant to Miss. Code Ann. §89-1-29, where the wife debtor did not sign the deed of trust signed by her husband in favor of the creditor, the deed of trust was null and void. However, because the creditor paid off two existing deeds of trust on the property, the creditor was entitled to be subrogated to the rights of the two creditors whose debts were secured by the property. Rhymes v. Countrywide Home Loans, Inc. (In re Rhymes), 2008 Bankr. LEXIS 779 (Bankr. S.D. Miss. Mar. 14, 2008).

Under Mississippi statute providing that deed of trust on homestead is invalid and not binding unless signed by spouse of owner if owner be married and living with spouse, validity of deed of trust is judged by circumstances existing at time of its execution, and subsequent actions by spouse who fails to join in execution cannot cure invalidity of instrument. Craddock v. Brinkley, 671 So. 2d 662, 1996 Miss. LEXIS 126 (Miss. 1996).

An encumbrance of homestead property signed by only one of the spouses is void and therefore may not be reformed on the ground of oversight. Strong v. Powell, 247 Miss. 55, 150 So. 2d 516, 1963 Miss. LEXIS 281 (Miss. 1963).

Husband and wife may execute valid mortgage on after-acquired property used as homestead. Adkinson & Bacot Co. v. Varnado, 91 Miss. 825, 47 So. 113, 1907 Miss. LEXIS 215 (Miss. 1907).

Husband and wife may execute valid mortgage on after-acquired property used as a homestead. Adkinson & Bacot Co. v. Varnado, 91 Miss. 825, 47 So. 113, 1907 Miss. LEXIS 215 (Miss. 1907).

A deed of trust by a husband alone being void, his widow and children take as tenants in common at his death. Hubbard v. Sage Land & Improv. Co., 81 Miss. 616, 33 So. 413, 1902 Miss. LEXIS 179 (Miss. 1902).

No conveyance of the homestead shall be valid unless signed by the wife of the owner. Duggan v. Champlin, 75 Miss. 441, 23 So. 179, 1897 Miss. LEXIS 133 (Miss. 1897).

A conveyance or encumbrance by the husband of the homestead without the wife joining in the deed is not valid. Rights to a homestead are not dependent upon mistaken or false statements made by the husband, but upon the fact of his being the head of a family and residing upon the premises as a home. Hinds v. Morgan, 75 Miss. 509, 23 So. 35, 1897 Miss. LEXIS 130 (Miss. 1897).

Contemporaneous assent of husband and wife, if living together, is essential to an incumbrance of the exempt homestead. Duncan v. Moore, 67 Miss. 136, 7 So. 221, 1889 Miss. LEXIS 45 (Miss. 1889).

9. —Instrument securing payment of purchase money.

Pursuant to Miss. Code Ann. §89-1-29, where the wife debtor did not sign the deed of trust signed by her husband in favor of the creditor, the deed of trust was null and void. Creditor’s argument that Miss. Code §85-3-23 did not apply to debtors because a deed of trust was issued to secure a purchase money lien on the property and the homestead rights had not yet attached was without merit where the debtors had owned the property and had been occupying the property for some time prior to the time that the husband signed the deed of trust. Rhymes v. Countrywide Home Loans, Inc. (In re Rhymes), 2008 Bankr. LEXIS 779 (Bankr. S.D. Miss. Mar. 14, 2008).

Where a wife joined with her husband in executing a deed of trust to the homestead, belonging to the husband, and thereafter upon the destruction of the building by fire the insurance proceeds were paid to the husband who deposited them in his wife’s name, but by agreement with the mortgagee most of such proceeds were paid to the mortgagee by the husband and used in rebuilding the destroyed home, the wife had no cause of action to set aside a foreclosure of the deed of trust since she was not prejudiced in her rights by the disposition made by her husband of the insurance money which belonged to him, not to her. McFarlane v. Plant, 185 Miss. 616, 188 So. 530, 1939 Miss. LEXIS 169 (Miss. 1939).

Deed of trust securing purchase money of homestead, valid without wife’s signature. Jarvis v. Armstrong, 94 Miss. 145, 48 So. 1, 1908 Miss. LEXIS 35 (Miss. 1908).

Deed of trust securing money advanced for construction of house converted into homestead, valid without wife’s signature. Jarvis v. Armstrong, 94 Miss. 145, 48 So. 1, 1908 Miss. LEXIS 35 (Miss. 1908).

Although the husband forges his wife’s name to the mortgage on land including the homestead, to secure borrowed money (the mortgagee being innocent), and a part of the money is used to pay off the purchase-money debt secured by a vendor’s lien on the whole land, the mortgagee, who takes up the note for the purchase-money debt will be subrogated to the rights of the holder of the purchase-money lien as against the homestead. North American Trust Co. v. Lanier, 78 Miss. 418, 28 So. 804, 1900 Miss. LEXIS 81 (Miss. 1900).

A similar statute (Laws 1873, p 78) held not to be applicable where the incumbrance was to secure the purchase-money of the homestead. Billingsley v. Niblett, 56 Miss. 537, 1879 Miss. LEXIS 159 (Miss. 1879).

10. —Miscellaneous.

Facts were undisputed that the proceeds of the U.S. Department of Housing and Urban Development’s (HUD) subordinate loan were applied to cure the delinquent arrearage that had accrued on the primary loan; the court, however, found that the payment of the proceeds to cure the primary note arrearage did not permit the subordinate deed of trust to become a purchase money security interest. Since the deed of trust securing HUD’s arrearage payment was not a purchase money security interest and since it was not signed by the debtor’s spouse, the deed of trust was invalid. In re Burks, 421 B.R. 762, 2009 Bankr. LEXIS 4120 (Bankr. N.D. Miss. 2009).

Deed of trust being serviced was a valid lien encumbering debtor’s homestead property even though it was not executed by his spouse. In re Burks, 421 B.R. 762, 2009 Bankr. LEXIS 4120 (Bankr. N.D. Miss. 2009).

Where the court made a finding, under Fed. R. Evid. 901(b)(3), that the debtor’s signature on a deed of trust was forged, the deed of trust was void and unenforceable, pursuant to Miss. Code Ann. §89-1-29 (1980). Ramsey v. Countrywide Home Loans, Inc. (In re Ramsey), 424 B.R. 217, 2009 Bankr. LEXIS 3541 (Bankr. N.D. Miss. 2009).

Arbitration clause in a contract between clients, a husband and a wife, and a termite company was enforceable against the wife, even though she did not sign the contract, because it did not encompass an incumbrance under Miss. Code Ann. §89-1-29. Terminix Int'l, Inc., Ltd. P'ship v. Rice, 904 So. 2d 1051, 2004 Miss. LEXIS 1459 (Miss. 2004).

Invalidity of deed of trust arising from spouse’s failure to sign deed of trust on homestead property was not cured by spouse’s act of signing promissory note one year later evidencing indebtedness to deed of trust holder; note was not attachment to nor integral part of deed of trust. Craddock v. Brinkley, 671 So. 2d 662, 1996 Miss. LEXIS 126 (Miss. 1996).

Spouse’s failure to sign deed of trust on homestead property given by husband as security for loan rendered deed of trust null and void as matter of law, and thus, foreclosure sale pursuant to deed of trust had to be set aside and title to property vested in owner’s son who received has interest in property via laws of descent and distribution. Craddock v. Brinkley, 671 So. 2d 662, 1996 Miss. LEXIS 126 (Miss. 1996).

The statutory signing requirements of §§15-3-1,89-1-3,89-1-29 and91-9-1 [repealed] were satisfied with respect to a deed of trust relating to homestead property, even though the wife neglected to sign the deed of trust document, where her signature appeared on the 2 attachments to the deed of trust-the property description and the adjustable rate mortgage rider-which constituted an integral part of the deed of trust. United Miss. Bank v. GMAC Mortgage Co., 615 So. 2d 1174, 1993 Miss. LEXIS 21 (Miss. 1993).

Bank was entitled to foreclose a deed of trust against homestead property for advances made to the husband, acting alone and without wife’s knowledge, which were additional to the original indebtedness secured by the deed of trust contract where the contract contained a “dragnet clause” which clearly and unambiguously provided that its purpose was to “secure all loans and advances which Beneficiary has made or may hereafter make to the Grantor, or any of them”; nor did the fact that the husband pledged certain cattle as additional security for the advances, which were missing when the bank sought to replevy them, amount to a waiver on the part of the bank of the security granted it by the deed of trust. Newton County Bank, Louin Branch Office v. Jones, 299 So. 2d 215, 1974 Miss. LEXIS 1592 (Miss. 1974).

“Dragnet” clause contained in a deed of trust executed by a husband and wife on their homestead property, purporting to cover “any other or further indebtedness in the way of future advances hereunder, or otherwise, that the grantor, or either of them, may now or hereafter owe the beneficiary”, was not broad enough to cover an indebtedness incurred by the husband on a conditional sales contract prior to the divorce, and without the wife’s concurrence or knowledge, and discounted to a bank, beneficiary of the deed of trust, or on renewal notes signed by the husband after the divorce. Hudson v. Bank of Leakesville, 249 So. 2d 371, 1971 Miss. LEXIS 1157 (Miss. 1971).

Where the wife of the grantor failed to sign a deed granting right to remove timber from land owned by the grantor and occupied by him and his wife, this rendered deed void insofar as it affected the grantor’s homestead. Thompson v. Dyess, 218 Miss. 770, 67 So. 2d 721, 1953 Miss. LEXIS 602 (Miss. 1953).

In an action to cancel a trust deed and a foreclosure deed on the ground that it was executed at the time the husband was married to a prior wife, husband alone executed the trust deed and realty involved was the homestead of husband and wife, the note and trust deed were valid although not signed by prior wife because at time of execution of note and deed husband and wife were separated and not living together. McGehee v. Middleton, 58 So. 2d 16 (Miss. 1952).

Doctrine “he who seeks equity must do equity” not applicable in suits by husband and wife to enjoin cutting of timber under contract signed by husband alone. Young v. Ashley, 123 Miss. 693, 86 So. 458, 1920 Miss. LEXIS 70 (Miss. 1920).

Deed to cut timber on homestead, not signed by wife was void, or at most only a license. Blair v. Frank B. Russell & Co., 120 Miss. 108, 81 So. 785, 1919 Miss. LEXIS 64 (Miss. 1919).

A deed of trust executed by a husband who is living with his wife is void as to the homestead exemption of one hundred and sixty acres included therein without the joinder of the wife, and his widow and children take as tenants in common at his death, and a release of all exemption rights which the beneficiary in the trust deed, without further consideration, procures from the widow in eighty acres adjoining the eighty acres on which the dwelling is situated, is void for all purposes except to fix the character of such eighty acres as a part of the homestead. Hubbard v. Sage Land & Improv. Co., 81 Miss. 616, 33 So. 413, 1902 Miss. LEXIS 179 (Miss. 1902).

A deed of trust drawn up and handed to the husband for his and his wife’s signatures on a secular day, and after signature delivered on a secular day to the beneficiary without the latter’s knowledge that it was signed on Sunday, is valid. Duggan v. Champlin, 75 Miss. 441, 23 So. 179, 1897 Miss. LEXIS 133 (Miss. 1897).

A conveyance by the husband of all the merchantable timber on his homestead, with an indefinite time for its removal, is an encumbrance of such homestead and void if the wife does not join. McKenzie v. Shows, 70 Miss. 388, 12 So. 336, 1892 Miss. LEXIS 119 (Miss. 1892).

Where a husband having jointly with his wife executed a mortgage intended to include their homestead, and afterwards without authority from her, but in an honest effort to correct the mistake, inserted the homestead which had been omitted from the description, the mortgage is inoperative as to the homestead. Foote v. Hambrick, 70 Miss. 157, 11 So. 567, 1892 Miss. LEXIS 56 (Miss. 1892).

11. Effect of abandonment of homestead.

Husband could not claim exemption in his former homestead after abandonment, and wife could not assert exemption which husband had abandoned, because effect of this would be to claim 2 exemptions for wife in same property. Joe T. Dehmer Distributors, Inc. v. Temple, 826 F.2d 1463, 1987 U.S. App. LEXIS 12486 (5th Cir. Miss. 1987).

In order for encumbered property to constitute homestead, owner must be living with spouse; when husband removes himself from homestead property without intent to return and wife consents, homestead is abandoned notwithstanding wife’s continued residence on land; question whether owner of property is living with spouse is factual. Merchants Nat'l Bank v. Southeastern Fire Ins. Co., 751 F.2d 771, 1985 U.S. App. LEXIS 27780 (5th Cir. Miss. 1985).

Husband may convey abandoned homestead by separate deed. Lindsey v. Holly, 105 Miss. 740, 63 So. 222, 1913 Miss. LEXIS 257 (Miss. 1913).

A temporary removal because of necessity by husband and wife, they retaining an intention to return to the premises, is not an abandonment of the homestead. Collins v. Bounds, 82 Miss. 447, 34 So. 355, 1903 Miss. LEXIS 166 (Miss. 1903).

An incumbrance on the land of the husband, which was once his homestead, given by him alone when not residing on the land, is not rendered invalid because of an intention to re-occupy it in the future. Majors v. Majors, 58 Miss. 806, 1881 Miss. LEXIS 39 (Miss. 1881).

12. Effect of change of residence.

A deed of trust on property formerly occupied as a homestead executed by the husband alone, after moving from the homestead, is not invalid as to the wife. Grantham v. Ralle, 248 Miss. 364, 158 So. 2d 719, 1963 Miss. LEXIS 402 (Miss. 1963).

Husband who in good faith has selected another homestead may convey good title to his former homestead without the joining of his wife in the deed. Livelar v. Kepner, 244 Miss. 723, 146 So. 2d 346, 1962 Miss. LEXIS 502 (Miss. 1962).

An exemptionist who sells his homestead in order to make a change of residence, and which he afterwards effects, can, before removal, execute a valid conveyance of the property without his wife joining him therein. Wilson v. Gray, 59 Miss. 525, 1882 Miss. LEXIS 150 (Miss. 1882).

13. Effect of separation or divorce of parties to marriage.

A deed of trust on a marital homestead was invalid where (1) only the husband, and not the wife, signed the deed of trust, and (2) the deed of trust was executed prior to the separation and divorce of the husband and wife. Thurman v. Thurman, 770 So. 2d 1015, 2000 Miss. App. LEXIS 483 (Miss. Ct. App. 2000).

A conveyance of the homestead property by the husband without the signature of the wife is invalid, even though the wife be not living on the homestead property at the time of execution of the deed of conveyance, if her absence is occasioned by the act of the husband in driving her away from the home. Robbins v. Berry, 213 Miss. 744, 57 So. 2d 576, 1952 Miss. LEXIS 421 (Miss. 1952).

Even though a wife was guilty of collusion in a divorce proceeding, she was entitled to have a deed to the homestead canceled where she was living away from the husband and her absence was occasioned by an act of the husband in driving her away, and where the purchasers who bought the homestead were not innocent purchasers. Crosby v. Hatten, 213 Miss. 240, 56 So. 2d 705, 1952 Miss. LEXIS 356 (Miss. 1952).

The test whether the husband abandoned any homestead rights under statutes invalidating conveyance of the homestead is whether the husband had abandoned the conjugal relation with his wife and the occupancy of the property, but the wrongful ouster of the spouse does not constitute a wilful abandonment; and if a spouse voluntarily separates from the other and abandons the intention of living with him or her through no fault of the latter, he or she has abandoned any homestead rights. Etheridge v. Webb, 210 Miss. 729, 50 So. 2d 603, 1951 Miss. LEXIS 310 (Miss. 1951).

An abandonment of a homestead may be obtained by a free and voluntary separation of the parties and the test is whether the husband was away from the homestead with the mature intention not to return to it. Etheridge v. Webb, 210 Miss. 729, 50 So. 2d 603, 1951 Miss. LEXIS 310 (Miss. 1951).

A husband may not drive his wife away or otherwise by his own wrong cause her to leave, and thereupon exercise the assumed right to convey the homestead without her joinder in the conveyance, if nevertheless it remained her right and actual intention to return. Philan v. Turner, 195 Miss. 172, 13 So. 2d 819, 1943 Miss. LEXIS 126 (Miss. 1943).

The sole fact that the wife, for the time being, is living apart from her husband does not neutralize her right of veto upon a conveyance of the homestead by the husband. Philan v. Turner, 195 Miss. 172, 13 So. 2d 819, 1943 Miss. LEXIS 126 (Miss. 1943).

Where a wife leaves her husband with the intention not to return to the homestead, she loses her right to veto a conveyance of the homestead by her husband. Philan v. Turner, 195 Miss. 172, 13 So. 2d 819, 1943 Miss. LEXIS 126 (Miss. 1943).

The fact that a wife, leaving her husband, left some of her personal belongings at the home, while a fact to be considered in determining whether she left the homestead with the intention of returning, is not controlling. Philan v. Turner, 195 Miss. 172, 13 So. 2d 819, 1943 Miss. LEXIS 126 (Miss. 1943).

Where the wife’s leaving her invalid husband in need of personal attention because of his bringing his widowed sister and her child to live with him and care for him while the wife was working, was without legal justification under the circumstances, the wife lost her right to veto his conveyance of the homestead, notwithstanding she may have intended to return to the homestead if and when her sister-in-law moved therefrom. Philan v. Turner, 195 Miss. 172, 13 So. 2d 819, 1943 Miss. LEXIS 126 (Miss. 1943).

A husband’s conveyance of homestead property was not void because his wife did not join in the execution thereof, where the evidence showed that she was at the time voluntarily living away from him and refused to return to live with him. Sylvester v. Stevens, 186 Miss. 503, 191 So. 483, 1939 Miss. LEXIS 257 (Miss. 1939).

Permission given by husband after legal separation from wife to lumber company to enter land and cut and remove logs therefrom held binding, under statute, against wife claiming homestead rights in such land. Lewis v. Ladner, 177 Miss. 473, 168 So. 281, 172 So. 312, 1936 Miss. LEXIS 230 (Miss. 1936).

Proof of husband’s abandonment of homestead in unlawful entry and detainer action against wife by purchaser of land at sale on foreclosure of trust deed executed by wife alone must be clear and decisive of such intention, accompanied by husband’s removal from premises. Gardner v. Cook, 173 Miss. 244, 158 So. 150, 1934 Miss. LEXIS 389 (Miss. 1934).

Evidence in unlawful entry and detainer action held to show that defendant’s husband had not abandoned defendant or their homestead when she executed trust deed, on foreclosure of which plaintiff purchased land, so that deed, in which husband did not join, was void. Gardner v. Cook, 173 Miss. 244, 158 So. 150, 1934 Miss. LEXIS 389 (Miss. 1934).

Where wife signed separation agreement without coercion and separation followed, husband’s deed to homestead without wife’s signature was not void. Board of Mayor & Aldermen of Booneville v. Clayton, 155 Miss. 428, 124 So. 490, 1929 Miss. LEXIS 310 (Miss. 1929).

Divorced wife of owner receiving part of wild land by decree in divorce cannot assert homestead right against purchaser under prior trust deed made by husband. Mounger v. Gandy, 110 Miss. 133, 69 So. 817, 1915 Miss. LEXIS 13 (Miss. 1915).

In legal contemplation, the husband is living with his wife, though driven by stress of pecuniary difficulties to absent himself from his wife and home in the effort to provide for himself and family, and a deed of conveyance to the homestead by the wife during such absence of the husband is invalid. Walton v. Walton, 76 Miss. 662, 25 So. 166, 1898 Miss. LEXIS 132 (Miss. 1898).

A husband who had driven his wife from his home and refused to permit her to return, cannot lawfully convey the premises to a third person, for the law will not suffer a husband to acquire by his wrong what the statute has denied him. Scott v. Scott, 73 Miss. 575, 19 So. 589, 1895 Miss. LEXIS 172 (Miss. 1895).

14. Rights and remedies of spouses.

Section89-1-29 applies when spouses are married and living together on homestead; however, spouse forced off homestead retains §89-1-29 veto power. Joe T. Dehmer Distributors, Inc. v. Temple, 826 F.2d 1463, 1987 U.S. App. LEXIS 12486 (5th Cir. Miss. 1987).

While §89-1-29 does not give wife any property right or ownership, it does give her veto power. Ward v. Ward, 517 So. 2d 571, 1987 Miss. LEXIS 2968 (Miss. 1987).

A wife, who with her husband conveyed a homestead, had such an interest in the homestead that a life estate could be reserved to her as well as to her husband; since the homestead could not have been conveyed to the grantees without the consent of the wife, she would have the right to refuse to convey it unless the life estate was reserved to her. Moore v. Moore, 254 So. 2d 879 (Miss. 1971).

Where a husband and wife executed a deed of trust on their homestead property, and the deed contained a “dragnet” clause stating that it was intended to cover any other or further indebtedness that the grantors or either of them might thereafter owe the beneficiary, the clause was not sufficiently broad in its terms to secure an indebtedness of the husband on a conditional sales contract executed by the husband alone prior to the divorce of the parties and then discounted to the bank which was the beneficiary of the deed of trust, in the absence of the wife’s knowledge of the transaction, and a foreclosure of the deed of trust, upon the husband’s default under the conditional sales contract, would be enjoined. Hudson v. Bank of Leakesville, 249 So. 2d 371, 1971 Miss. LEXIS 1157 (Miss. 1971).

In suit by husband to cancel deed of conveyance executed by wife in which husband did not join, on ground that property conveyed was homestead property, husband is entitled to prove, if he can, that property, although belonging to wife, constitutes homestead, and that he was living with wife at time conveyance thereof was executed. Etheridge v. Webb, 204 Miss. 159, 37 So. 2d 168, 1948 Miss. LEXIS 351 (Miss. 1948).

In suit by husband to cancel deed of conveyance executed by wife in which husband did not join, on ground that property described in deed was homestead, burden of proof is on husband to prove that he was living with wife, either actually or in a legal sense, within the meaning of this section [Code 1942, § 332], at time she conveyed the property. Etheridge v. Webb, 204 Miss. 159, 37 So. 2d 168, 1948 Miss. LEXIS 351 (Miss. 1948).

A wife living separate and apart from her husband at the time of his death was entitled to cancellation of a conveyance, executed without her knowledge, consent, or signature, to property admittedly their homestead both at the time of the separation and of the husband’s death. Stringer v. Arrington, 202 Miss. 798, 32 So. 2d 879, 1947 Miss. LEXIS 342 (Miss. 1947).

So long as the wife has the right and the will to remain at home, she is to be considered as living there within the meaning of the statute; the will to remain includes a situation where, being away without her own fault, the wife has the will to return, although, when she abandons the intention to return, she no longer has the right to veto a homestead conveyance even though she had the right theretofore to remain. Philan v. Turner, 195 Miss. 172, 13 So. 2d 819, 1943 Miss. LEXIS 126 (Miss. 1943).

This section [Code 1942, § 330] gives the wife the veto power against encumbrances or conveyances by her husband of the exempt homestead, but imposes no limitation of his common law rights to deal with the indebtedness secured by the homestead. McFarlane v. Plant, 185 Miss. 616, 188 So. 530, 1939 Miss. LEXIS 169 (Miss. 1939).

Wife’s veto power against conveyance of homestead by husband is not a property right. Kimbrough v. Powell, 143 Miss. 498, 108 So. 498, 1926 Miss. LEXIS 286 (Miss. 1926).

Equity will protect right of wife in homestead; wife proper party in suit to protect homestead against those claiming under instrument signed by husband alone. Young v. Ashley, 123 Miss. 693, 86 So. 458, 1920 Miss. LEXIS 70 (Miss. 1920).

In that the wife has a mere veto power on the sale of a homestead and not a property right subject to bargain and sale, a promise made by the husband to the wife to secure her signature is void. New Orleans R. & M. S. Co. v. Gatti, 77 Miss. 754, 27 So. 601 (Miss. 1900).

Since a wife has only a veto power in respect to conveyance of a homestead, she cannot maintain a bill, the sole object of which is the cancellation of the husband’s deed in which she did not join. Scott v. Scott, 73 Miss. 575, 19 So. 589, 1895 Miss. LEXIS 172 (Miss. 1895).

Although the wife must join in the conveyance of her husband’s homestead, she has no estate therein, and is not the proper party to a bill by him to cancel the trust deed thereon given by him alone, and he cannot, by joining her as a complainant, avoid the requirement in a court of chancery to do equity by offering to pay the assured debt. Pounds v. Clarke, 70 Miss. 263, 14 So. 22, 1892 Miss. LEXIS 142 (Miss. 1892), overruled, McDonald v. Sanford, 88 Miss. 633, 41 So. 369, 1906 Miss. LEXIS 180 (Miss. 1906).

The wife has a mere veto power. Billingsley v. Niblett, 56 Miss. 537, 1879 Miss. LEXIS 159 (Miss. 1879); Smith v. Scherck, 60 Miss. 491, 1882 Miss. LEXIS 88 (Miss. 1882); Duncan v. Moore, 67 Miss. 136, 7 So. 221, 1889 Miss. LEXIS 45 (Miss. 1889); Scott v. Scott, 73 Miss. 575, 19 So. 589, 1895 Miss. LEXIS 172 (Miss. 1895); New Orleans R. & M. S. Co. v. Gatti, 77 Miss. 754, 27 So. 601 (Miss. 1900).

15. Rights of grantees under deeds.

A deed from a husband to his homestead, although void from the want of his wife’s joinder therein, is good against a third party as color of title to sustain a claim by adverse possession. Johnson v. Hunt, 79 Miss. 639, 31 So. 205, 1901 Miss. LEXIS 100 (Miss. 1901); Avera v. Williams, 81 Miss. 714, 33 So. 501, 1902 Miss. LEXIS 195 (Miss. 1902).

A deed executed by a husband living with his wife purporting to convey his homestead is not good to convey any interest whatever therein unless it be signed by the wife. Hence, the vendee in a deed from a husband living with his wife which she did not sign, purporting to convey his homestead, cannot maintain ejectment for the lands after the death of the husband against those who claim under his heirs. Johnson v. Hunt, 79 Miss. 639, 31 So. 205, 1901 Miss. LEXIS 100 (Miss. 1901).

16. Rights of agents under real estate listing contracts.

An exclusive real estate listing contract served to make the real estate agent the special agent of the owner, with limited power to find a purchaser ready, willing, and able to buy the property on terms and conditions fixed by the appellee; but the execution of such a contract did not serve to permit the agent to acquire any legal interest in the property placed in his hands for sale, nor did the contract create any incumbrance upon the property involved. C. Buck Bush Realty Co. v. Whetstone, 266 So. 2d 135, 1972 Miss. LEXIS 1387 (Miss. 1972).

It is a general rule that a person who has employed a broker to sell property cannot avoid liability for the commission on the ground that he is unable to complete the transaction because his wife refused to join in the contract for sale or deed, where the broker has found a purchaser ready, willing and able to purchase the property. C. Buck Bush Realty Co. v. Whetstone, 266 So. 2d 135, 1972 Miss. LEXIS 1387 (Miss. 1972).

17. Pleading.

Plea of res judicata setting up fact that in divorce proceeding property was adjudged to belong to wife should not be sustained in subsequent suit by husband to cancel deed of conveyance to property executed by wife alone on ground that property described in deed was homestead as the deed required the signature of husband if property did in fact constitute homestead at time of execution of deed and if husband was then living with wife. Etheridge v. Webb, 204 Miss. 159, 37 So. 2d 168, 1948 Miss. LEXIS 351 (Miss. 1948).

Benefits of statute invalidating trust deed of wife’s homestead, unless signed and acknowledged by husband living with wife, need not be affirmatively asserted by husband in unlawful entry and detainer action by purchaser at sale on foreclosure of such deed. Gardner v. Cook, 173 Miss. 244, 158 So. 150, 1934 Miss. LEXIS 389 (Miss. 1934).

18. Limitation of actions.

A mineral deed to homestead which was not signed by the wife of the owner, being void, did not carry with it constructive possession, and therefore the ten years statute of limitations was inapplicable to an action by the husband and wife to cancel the deed brought some 21 years after the conveyance. Travis v. Dantzler, 244 Miss. 360, 141 So. 2d 556, 1962 Miss. LEXIS 455 (Miss. 1962).

Laches is not a defense to a suit to cancel a deed of the husband conveying a tract of land which constituted the spouses’ family homestead, provided that the proceedings are instituted within the statutory period. Robbins v. Berry, 213 Miss. 744, 57 So. 2d 576, 1952 Miss. LEXIS 421 (Miss. 1952).

19. Application of doctrine of estoppel.

Conveyance of homestead without spouse’s joining in execution of deed is absolutely void, no subsequent action by non-joining spouse cures its invalidity, and where spouse is required or forced to leave homestead on account of other spouse’s misconduct, and is absent at time of deed’s execution, instrument is likewise invalid; divorce decree based on irreconcilable differences is not proper judgment for purposes of collaterally estopping claim by non-joining spouse. Welborn v. Lowe, 504 So. 2d 205, 1987 Miss. LEXIS 2437 (Miss. 1987).

Under §89-1-29, a married woman who, in 1940, joined her husband in executing a deed of his separate property, which was their homestead, was not estopped to assert an after-acquired title against the grantee in the deed, where the deed, though reciting that the grantors were husband and wife, did not recite that the property was homestead or the separate property of the husband and did not indicate that her joinder was pro forma or limited to a release of her homestead interest. Hinton on behalf of Hinton v. Hydraulic Pumps, Inc., 437 So. 2d 1007, 1983 Miss. LEXIS 2884 (Miss. 1983).

A husband who attempts to convey part of the homestead without his wife’s signature is not estopped by his warranty to assert the invalidity of the deed, even after the wife’s death. Thompson v. Dyess, 218 Miss. 770, 67 So. 2d 721, 1953 Miss. LEXIS 602 (Miss. 1953).

As to the contention that a deed of trust and foreclosure thereunder were void because the land involved was homestead property, and the mortgagor’s wife had not joined in the execution of the deed of trust, stipulations in the deed of trust that the land covered thereby was not part of the mortgagor’s homestead was not binding on him, although it was a declaration against interest to be considered by the chancellor in determining whether such land was in fact part of his homestead. Kyle v. Peoples Bank & Trust Co., 186 Miss. 287, 187 So. 534, 1939 Miss. LEXIS 202 (Miss. 1939).

Wife, securing credit and advances on faith of her trust deed, held not estopped to assert invalidity thereof because not signed by husband, living with her on homestead conveyed, as defense to unlawful entry and detainer action by purchaser of land at foreclosure sale. Gardner v. Cook, 173 Miss. 244, 158 So. 150, 1934 Miss. LEXIS 389 (Miss. 1934).

The conveyance of a homestead, or any part of it, by the husband alone being void, a warranty clause does not create an estoppel against him even after the death of his wife. Bollen v. R. G. Lilly & Son, 85 Miss. 344, 37 So. 811, 1904 Miss. LEXIS 112 (Miss. 1904).

A deed by a husband alone purporting to convey to a railroad the right of way over his homestead, being void, is no defense to an action of trespass quare clausum fregit by the husband and wife against the railroad for entering and taking the right of way. Gulf & S. I. R. Co. v. Singleterry, 78 Miss. 772, 29 So. 754, 1900 Miss. LEXIS 171 (Miss. 1900).

RESEARCH REFERENCES

ALR.

Homestead Right of Cotenant as Affecting Partition. 83 A.L.R.6th 605.

Am. Jur.

40 Am. Jur. 2d, Homestead §§ 112 et seq.

13A Am. Jur. Pl & Pr Forms (Rev), Homestead, Forms 41 et seq. (conveyance or encumbrance of homestead where spouse incompetent).

9A Am. Jur. Legal Forms 2d Homestead, §§ 135:41 et seq. (conveyance or encumbrance of homestead).

Editor’s Notes —

Former §89-1-31 required a husband to join in the conveyance of his wife’s homestead.

Cross References —

Effect of the words “warrant specially,” see §89-1-35.

JUDICIAL DECISIONS

1. In general.

2. Rights and remedies upon breach.

1. In general.

In a case in which the father conveyed land by warranty deed to his daughter, reserving unto himself a life estate, but he attempted to reconvey one acre of the same tract to another person later, the chancellor correctly found that the father had reserved a life estate and that he could have conveyed his reserved life estate, but that reading the conveyance as retaining the right to reconvey title in fee simple was repugnant to the granting clause in the conveyance to his daughter as the father conveyed and warranted the property to his daughter; pursuant to the deed, the daughter acquired ownership of the property upon delivery of the deed; and the father could not subsequently convey to another person property he no longer owned. T&W Homes Etc, LLC v. Crotwell, 235 So.3d 66, 2017 Miss. LEXIS 338 (Miss. 2017).

Trial court erred in refusing to require the sellers to correct defects in title and convey the property to the buyer because the real estate contract required the sellers to convey by warranty deed and to cure defects, but they ignored their obligations under contract and pursued a better deal with a third party, which constituted a material breach of the contract and of the covenant of good faith and fair dealing. Under Miss. Code Ann. §89-1-33, the warranty deed, absent other restrictive language, would have the effect of embracing all five covenants known to the common law, which were seizin, power to sell, freedom from encumbrances, quiet enjoyment and warranty of title. Ferrara v. Walters, 919 So. 2d 876, 2005 Miss. LEXIS 609 (Miss. 2005).

The wording of a deed which provided that “we hereby bargain, sell, convey and warrant to the Trustees of Oakgrove Consolidated High School and their successors the following described land. . . ” could only connote a conveyance absolute and the grantors’ children would not be heard some 50 years later to say that the grantors’ intent was something entirely different from what was expressed in the plain and simple legalese in the recorded instrument of conveyance. Garraway v. Yonce, 549 So. 2d 1341, 1989 Miss. LEXIS 453 (Miss. 1989).

Under Mississippi law, a grantor is liable for breach of warranty even though the grantee has notice of an outstanding encumbrance. Mills v. Damson Oil Corp., 686 F.2d 1096, 1982 U.S. App. LEXIS 25678 (5th Cir. Miss. 1982).

Grantors conveying land under warranty deed could reserve timber, though they had only possibility of reverter. Finkbine Lumber Co. v. Saucier, 150 Miss. 446, 116 So. 736, 1928 Miss. LEXIS 140 (Miss. 1928).

Purchaser with warranty deed knowing of outstanding incumbrance could not require vendor to secure release before paying balance of purchase price. Stokely v. Cooper, 150 Miss. 143, 116 So. 538, 1928 Miss. LEXIS 123 (Miss. 1928).

Grantor liable for breach of warranty, though grantee has notice of incumbrance. Sutton v. Cannon, 135 Miss. 368, 100 So. 24, 1924 Miss. LEXIS 45 (Miss. 1924).

“Warrant” in deed, followed by restrictive words, embraces only warranties expressed therein. Staton v. Henry, 130 Miss. 372, 94 So. 237, 1922 Miss. LEXIS 221 (Miss. 1922).

Warranty against incumbrance includes taxes; parol evidence inadmissible to show grantee assumed payment of taxes. Martin v. Partee, 121 Miss. 482, 83 So. 673, 1920 Miss. LEXIS 94 (Miss. 1920).

Deed held to contain warranty against incumbrances. Garner v. Garner, 117 Miss. 694, 78 So. 623, 1918 Miss. LEXIS 213 (Miss. 1918).

The word “warrant” warrants the possession or seisin as well as the title. Allen v. Caffee, 85 Miss. 766, 38 So. 186, 1904 Miss. LEXIS 191 (Miss. 1904).

2. Rights and remedies upon breach.

Chancery court committed reversible error when it denied attorney fees to the purchaser of a warranty timber deed after the chancery court found in favor of the purchaser in a breach of contract action in which it was determined that the seller of the deed did not have legal title to the land. Gordon v. Gordon, 929 So. 2d 981, 2006 Miss. App. LEXIS 395 (Miss. Ct. App. 2006).

A purchaser under a timber warranty deed could recover reasonable attorney fees and other expenses of adjudicating title, not to exceed the price paid for the timber, when the seller breached covenants embraced by the warranty deed and the purchaser was not divested of the timber while adjudicating title. Greenlee v. Mitchell, 607 So. 2d 97, 1992 Miss. LEXIS 483 (Miss. 1992).

If vendor conveys real property by warranty deed and it is subsequently determined that there is defect in chain of title, vendor has breached covenants of seizin and power to sell; in case in which covenantee is not divested of land while adjudicating title, covenantee may be awarded reasonable attorney fees and other expenses of adjudicating title, not to exceed price paid by covenantee when purchasing land. Howard v. Clanton, 481 So. 2d 272, 1985 Miss. LEXIS 2426 (Miss. 1985).

Where defendant grantors warranted that they had title and the title failed, the grantees were not required to hold possession of the property conveyed until adverse possession gave them title. Guerra v. State, 209 So. 2d 627, 1968 Miss. LEXIS 1462 (Miss. 1968).

A contract to convey a merchantable title to land by a general warranty deed implies an obligation to convey a perfect, fee-simple title, and where the seller does not own and cannot convey most of the minerals underlying the land the purchaser’s rescission of the contract is justified. Brent v. Corbin, 252 Miss. 464, 173 So. 2d 430, 1965 Miss. LEXIS 1121 (Miss. 1965).

The measure of damages for a partial failure under a covenant of warranty of title to real property is the difference between the value of the tract without the lost portion. Holcomb v. McClure, 211 Miss. 849, 52 So. 2d 922, 1951 Miss. LEXIS 417 (Miss. 1951).

Purchaser’s suit against vendor of realty for breach of warranty of title based on reservation of one-half interest in mineral rights by prior owner was not barred by purchaser’s resale of realty where he did not convey and warrant to his vendee reserved mineral rights. Meredith v. Pratt, 208 Miss. 412, 44 So. 2d 521, 1950 Miss. LEXIS 257 (Miss. 1950).

Eviction or surrender not essential to suit on warranty by grantee, buying paramount title; such action may be brought in assumpsit or in chancery. Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007, 1911 Miss. LEXIS 214 (Miss. 1911).

Warrantor’s liability for breach of warranty is purchase price with interest. Allen v. Miller, 99 Miss. 75, 54 So. 731, 1910 Miss. LEXIS 16 (Miss. 1910).

In order to recover on warranty for amount paid in purchasing paramount title or incumbrance, covenantee must show that such was paramount to title conveyed to him. Allen v. Miller, 99 Miss. 75, 54 So. 731, 1910 Miss. LEXIS 16 (Miss. 1910).

A grantee in a general warranty deed who purchases land after the taxes of the current year have become a charge thereon may, after the 15th of December, pay the taxes thereon not previously paid by the grantor and at once sue for and recover the sum paid to protect the title. Swinney v. Cockrell, 86 Miss. 318, 38 So. 353, 1905 Miss. LEXIS 43 (Miss. 1905).

RESEARCH REFERENCES

ALR.

Breach of covenant for quiet enjoyment in lease. 41 A.L.R.2d 1414.

Am. Jur.

20 Am. Jur. 2d, Covenants, Conditions, and Restrictions §§ 45 et seq.

7A Am. Jur. Pl & Pr Forms (Rev), Covenants, Conditions, and Restrictions, Forms 1 et seq. (covenants of title).

CJS.

21 C.J.S., Covenants §§ 45 et seq.

Cross References —

Effect of the word “warrant,” see §89-1-33.

JUDICIAL DECISIONS

1. In general.

Conveyance with special warranty may be grant of fee simple title. Jones v. Metzger, 132 Miss. 247, 96 So. 161, 1923 Miss. LEXIS 39 (Miss. 1923).

Words “warrant specially” is warranty only against those claiming through grantor. Jones v. Metzger, 132 Miss. 247, 96 So. 161, 1923 Miss. LEXIS 39 (Miss. 1923).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d, Covenants, Conditions, and Restrictions § 63, 64, 71.

CJS.

21 C.J.S., Covenants §§ 62, 63.

Cross References —

Effect of quitclaim and release, see §89-1-39.

JUDICIAL DECISIONS

1. In general.

The heirs of an intestate who had conveyed to his wife by quitclaim deed and without any warranty, property then encumbered, and joined with her in obtaining a loan secured upon property standing in her name, are entitled to be subrogated to such encumbrances upon payment out of the intestate’s estate of the debts secured. Kellner v. Kellner, 241 Miss. 53, 129 So. 2d 391, 1961 Miss. LEXIS 318 (Miss. 1961).

JUDICIAL DECISIONS

1. Estoppel.

2. Miscellaneous.

1. Estoppel.

Estoppel by deed bars a party from asserting a subsequently acquired title in derogation of his grant. Chevron Oil Co. v. Clark, 291 F. Supp. 552, 1968 U.S. Dist. LEXIS 12565 (S.D. Miss. 1968), aff'd in part and rev'd in part, 432 F.2d 280, 1970 U.S. App. LEXIS 7176 (5th Cir. Miss. 1970).

Where at the time of executing a deed quitclaiming all his right, title and interest in and to all minerals in certain described lands, the grantor had no interest therein, and nothing in the quitclaim deed indicated any intention on the grantor’s part to convey any interest that he might subsequently acquire, the grantor was not estopped to assert his after-acquired title, and such after-acquired title did not enure to the benefit of the grantee in the quitclaim deed and his successive grantees. McLaurin v. Royalties, Inc., 231 Miss. 240, 95 So. 2d 105, 1957 Miss. LEXIS 510 (Miss. 1957).

The estoppel created by this section [Code 1942, § 846] is coextensive only with the estate, right or interest which the conveyance purports to convey. McLaurin v. Royalties, Inc., 231 Miss. 240, 95 So. 2d 105, 1957 Miss. LEXIS 510 (Miss. 1957).

Grantee in quitclaim deed acquires such title, if any, as may be then vested in grantors, but when grantors have no title when they execute deed and do not afterwards acquire any title, grantee acquires nothing by virtue of this deed and is not estopped to reply upon perfect title acquired by him elsewhere. Perkins v. White, 208 Miss. 157, 43 So. 2d 897, 1950 Miss. LEXIS 237 (Miss. 1950).

The rule that a grantor and all persons in privity with him are 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, has been extended by this statute to quitclaim deeds. Meyers v. American Oil Co., 192 Miss. 180, 5 So. 2d 218, 1941 Miss. LEXIS 29 (Miss. 1941), limited, Pettis v. Brown, 203 Miss. 292, 33 So. 2d 809, 1948 Miss. LEXIS 267 (Miss. 1948).

The estoppel is coextensive with the estate, right, or interest which the conveyance purports to pass. McInnis v. Pickett, 65 Miss. 354, 3 So. 660, 1887 Miss. LEXIS 70 (Miss. 1887); Bramlett v. Roberts, 68 Miss. 325, 10 So. 56, 1890 Miss. LEXIS 87 (Miss. 1890); Houston v. National Mut. Bldg. & Loan Ass'n, 80 Miss. 31, 31 So. 540, 1902 Miss. LEXIS 314 (Miss. 1902).

2. Miscellaneous.

Judgment on the pleadings in favor of an assignee was proper because there was no set of facts that a mortgagor could prove that would entitle him to the surplus that resulted from a foreclosure sale since his conveyances divested him of any interests or rights referenced in the deed of trust; the quitclaim deed and prior conveyances divested the mortgagee of his rights and interests in the property because he manifested his intent to transfer all his right, title, and interest in the property. Hinton v. Rolison, 175 So.3d 1281, 2015 Miss. LEXIS 519 (Miss. 2015).

A quitclaim deed which conveyed a 40-acre tract of land to the grantee but retained one half of all mineral rights for the grantor transferred to the grantee only the surface land where the grantor had previously conveyed an undivided one-half interest in the minerals to a third party. However, where the devisees of the grantor admitted that it had been intended by the grantor that the grantee should have a one-quarter interest in the minerals, the quitclaim deed would be interpreted to have conveyed to the grantee such interest. Rosenbaum v. McCaskey, 386 So. 2d 387, 1980 Miss. LEXIS 2036 (Miss. 1980).

The doctrine of mutual mistake of fact was applicable and quitclaim deeds previously executed were cancelled and set aside where the deeds had been executed under the mistaken belief, shared by all parties, that the prior owner of the property had died intestate, whereas he had in fact died testate. Greer v. Higgins, 338 So. 2d 1233, 1976 Miss. LEXIS 1655 (Miss. 1976).

Where the plaintiff conveyed by quitclaim deed to the defendant an undivided one-half interest in the property which the plaintiff would inherit from the deceased, and at the same time the defendant conveyed to the plaintiff by quitclaim deed an undivided one-half interest of the defendant, and thereafter it was revealed that the decedent had devised and bequeathed all of his property to the plaintiff, the plaintiff became the owner of an undivided three-fourths interest in the estate, including realty and personalty, and the defendant became vested with an undivided one-fourth interest in such estate. Jackson v. Rutledge, 231 So. 2d 803, 1970 Miss. LEXIS 1613 (Miss. 1970).

The heirs of an intestate who had conveyed to his wife by quitclaim deed and without any warranty, property then encumbered, and joined with her in obtaining a loan secured upon property standing in her name, are entitled to be subrogated to such encumbrances upon payment out of the intestate’s estate of the debts secured. Kellner v. Kellner, 241 Miss. 53, 129 So. 2d 391, 1961 Miss. LEXIS 318 (Miss. 1961).

Where the mortgagor purchases from the state the land which was sold to the state for the nonpayment of the taxes and not redeemed, his action amounts merely to redemption from the tax sale and inures to the benefit of the mortgagee. Dampier v. Polk, 214 Miss. 65, 58 So. 2d 44, 1952 Miss. LEXIS 445 (Miss. 1952).

Where grantee was fully aware of outstanding interest in the land in question at time of grantor’s conveyance of her interest therein by quitclaim deed, grantor’s subsequent acquisition of such outstanding interest on behalf of, and as mere conduit of title for, third person did not place at any disadvantage either the grantee or the beneficiaries under his will and such after-acquired title did not inure to their benefit. Crooker v. Hollingsworth, 210 Miss. 636, 46 So. 2d 541, 1950 Miss. LEXIS 355 (Miss. 1950).

When a person attempts to convey title to something that he does not in fact own, and afterwards obtains good title to the property or interest thus conveyed, such subsequent acquisition will automatically inure to benefit of his prior vendees. Perkins v. White, 208 Miss. 157, 43 So. 2d 897, 1950 Miss. LEXIS 237 (Miss. 1950).

Quitclaim deed executed to each other by four devisees of tract of land, each devisee having defeasible fee simple title, by which tract was divided into four parcels and each devisee took possession of his or her allotted parcel, served to separate use and income of divided parcels but could not confer upon respective grantees fee simple title to parcels as division was made subject to, and could not change, terms of will under which devisees took defeasible fee simple title. Crump v. Phelps, 207 Miss. 682, 43 So. 2d 105, 1949 Miss. LEXIS 379 (Miss. 1949).

Release of land from trust deed by beneficiary in favor of purchaser thereof did not amount to a quitclaim deed from such beneficiary, and conveyed no title to the purchaser. A. W. Stevens Lumber Co. v. Hughes, 38 So. 769 (Miss. 1905).

A quitclaim deed is as effectual to convey title as one with general warranty. Chapman v. Sims, 53 Miss. 154, 1876 Miss. LEXIS 50 (Miss. 1876).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Deeds §§ 245, 246.

7 Am. Jur. Legal Forms 2d, Deeds §§ 87:125 et seq. (Mississippi-statutory warranty deed, statutory special warranty deed, quitclaim deed).

CJS.

26A C.J.S., Deeds § 17.

JUDICIAL DECISIONS

1. In general.

The wording of a deed which provided that “we hereby bargain, sell, convey and warrant to the Trustees of Oakgrove Consolidated High School and their successors the following described land. . . ” could only connote a conveyance absolute and the grantors’ children would not be heard some 50 years later to say that the grantors’ intent was something entirely different from what was expressed in the plain and simple legalese in the recorded instrument of conveyance. Garraway v. Yonce, 549 So. 2d 1341, 1989 Miss. LEXIS 453 (Miss. 1989).

Deed purporting to “grant, bargain, sell and convey” to a railroad company, held to convey fee and not a mere easement. Alabama & V. R. Co. v. Mashburn, 235 Miss. 346, 109 So. 2d 533, 1959 Miss. LEXIS 435 (Miss. 1959).

The use of the words, “grant, bargain and sell” in a conveyance does not imply a warranty that the grantor was seized of a fee simple estate, but only of some estate of freehold; That the grantor had only a life estate is not a breach of such implied covenant. Cunningham v. Dillard, 71 Miss. 61, 13 So. 882, 1893 Miss. LEXIS 144 (Miss. 1893).

Such implied covenant cannot be extended by implication because the habendum clause of the deed is “to have and to hold the above described property to the grantee, his heirs and assigns thereafter in fee simple against the claims of any and all persons whatsoever.” Cunningham v. Dillard, 71 Miss. 61, 13 So. 882, 1893 Miss. LEXIS 144 (Miss. 1893).

The words “grant, bargain, sell,” have no effect as a warranty when the deed contains an express covenant of warranty. Weems v. McCaughan, 15 Miss. 422, 1846 Miss. LEXIS 168 (Miss. 1846).

RESEARCH REFERENCES

ALR.

Breach of covenant for quiet enjoyment in lease. 41 A.L.R.2d 1414.

Am. Jur.

20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, §§ 86 et seq.

23 Am. Jur. 2d, Deeds § 166.

CJS.

21 C.J.S., Covenants §§ 47, 52.

Cross References —

Conveyance of land sold under execution, see §§13-3-187,13-3-189.

Notice to creditors of estate, see §§91-7-145,91-7-147.

Criminal offense of removing property subject to lien either from the premises, or out of the county, or out of the state, see §§97-17-73 et seq.

JUDICIAL DECISIONS

1. In general.

2. Assignment.

3. Interests subject to execution.

4. Rights of purchaser at execution sale.

1. In general.

Bankruptcy court found that under Miss. Code Ann. §89-1-43, debtor lost all legal title to debtor’s real property once the underlying loan went into default, and debtor had no interest in the real property when debtor later filed for a bankruptcy petition; 11 U.S.C.S. 1322 did not help debtor as the foreclosure sale was conducted in accordance with applicable nonbankruptcy law before the petition was filed. Martin v. USDA Rural Housing Serv (In re Martin), 276 B.R. 552, 2001 Bankr. LEXIS 1902 (Bankr. N.D. Miss. 2001).

Legal title remains with a debtor until default, but the mortgagee has title and the right to possession once a default has occurred. Anderson v. Kimbrough, 741 So. 2d 1041, 1999 Miss. App. LEXIS 454 (Miss. Ct. App. 1999).

If a secured creditor is authorized to foreclose by power of sale, after the debtor’s default and upon compliance with the deed of trust or other instrument, the secured creditor may sell any or all of the real estate that is subject to the security interest in its then condition or after any reasonable rehabilitation or preparation for sale. Every aspect of the sale, including the method, advertising, time, place and terms, must be commercially reasonable; this is an objective standard. Wansley v. First Nat'l Bank, 566 So. 2d 1218, 1990 Miss. LEXIS 452 (Miss. 1990).

The failure to appoint an independent trustee for a deed of trust would not invalidate the foreclosure sale of the real property. Wansley v. First Nat'l Bank, 566 So. 2d 1218, 1990 Miss. LEXIS 452 (Miss. 1990).

Where a grantee retains title to land and holds it for the benefit of another in order to secure a loan made by the grantee, the conveyance is a mortgage. The mortgage is evidenced by a deed absolute and the grantee is entitled to retain title until payment of the claim for which it is held for security. La Barre v. Gold, 520 So. 2d 1327, 1987 Miss. LEXIS 2792 (Miss. 1987).

Upon default by a debtor in performance of the conditions of a deed of trust, the trustee is empowered to foreclose pursuant to §§89-1-55 and89-1-43, and, if the statutory requirements are observed, a sale under the power is a perfect foreclosure; the trustee’s deed is a conveyance as absolute as if the trustee held title in fee simple, and it cuts off the equity of redemption and any other rights in and to the property, all of which are transferred to the foreclosure sale proceeds, with the sole exception of rights perfected prior to the filing of the deed of trust under which the foreclosure sale is held. Peoples Bank & Trust Co. etc. v. L & T Developers, Inc., 434 So. 2d 699, 1983 Miss. LEXIS 2687 (Miss. 1983).

A mortgagee in possession of property as the result of a foreclosure of a deed of trust could not be dispossessed until the indebtedness owing it had been paid or until a different party had acquired the land under a valid foreclosure sale. James v. Jackson Production Credit Asso., 389 So. 2d 494, 1980 Miss. LEXIS 2095 (Miss. 1980).

Possession of land by owner and mortgagor, or his grantees, during life of deed of trust, cannot form basis of claim to adverse possession by him, since mortgagor has right to retain possession of property until foreclosure sale under deed of trust. Duncan v. Mars, 44 So. 2d 529 (Miss. 1950).

Deed conveying described land to named trustees and their successors so long as land is used for school purposes does not declare or create trust in lands, but conveys estate in fee simple defeasible. Kelly v. Wilson, 204 Miss. 56, 36 So. 2d 817, 1948 Miss. LEXIS 342 (Miss. 1948).

A garageman surrendering possession of a repaired truck to its owner did not thereby lose his lien as against the holder of a deed of trust embracing the truck where there had been no breach of condition or foreclosure of the deed of trust. Watson v. Broadhead, 203 Miss. 142, 33 So. 2d 302, 1948 Miss. LEXIS 241 (Miss. 1948).

After condition broken, the heirs of the grantor in a deed of trust did not have right of possession, with title passed on default to the trustee, as against either the trustee or the purchaser who succeeded to the rights of the mortgagee in possession at a void foreclosure sale, until the indebtedness was tendered or paid; and without such right of possession, essential to tenancy in common, a partition suit could not be maintained by such heirs. Wirtz v. Gordon, 187 Miss. 866, 184 So. 798, 1938 Miss. LEXIS 321 (Miss. 1938).

As against the mortgagor and the devisees under the will of the grantor in a deed of trust, the legal title of the land secured by such deed of trust passed to the trustee under this section [Code 1942, § 849] at the time of default. Wirtz v. Gordon, 187 Miss. 866, 184 So. 798, 1938 Miss. LEXIS 321 (Miss. 1938).

Mortgagee as owner of debt and incidental security may maintain action for injuries to, or conversion of, mortgaged property and apply proceeds of any recovery therefor to discharge of mortgage debt. Love v. Mississippi Cottonseed Products Co., 174 Miss. 697, 159 So. 96, 165 So. 446, 1935 Miss. LEXIS 28 (Miss. 1935).

Title remained in grantor after executing deed of trust, and, on his death, property descended to his heirs. Wright v. Wright, 160 Miss. 235, 134 So. 197, 1931 Miss. LEXIS 202 (Miss. 1931).

Declaration of trust giving trustees control of land previously held by corporations as trustees and earnings therefrom for purpose of disposition of property for benefit of certificate holders held not to violate public policy or anti-trust statutes, where not inimical to public welfare. State ex rel. Knox v. Edward Hines Lumber Co., 150 Miss. 1, 115 So. 598, 1928 Miss. LEXIS 101 (Miss. 1928).

The record of a trust deed conveying land to secure a promissory note, not showing on its face that it is for the purchase money, is not constructive notice of an unrecorded deed, by which the grantor in the trust deed acquired title. Hart v. Gardner, 81 Miss. 650, 33 So. 442, 1902 Miss. LEXIS 183 (Miss. 1902).

A stranger cannot interpose the mortgage as an obstacle against the mortgagor seeking to recover the property or damages for its injury. Illinois C. R. Co. v. Hawkins, 65 Miss. 200, 3 So. 410, 1887 Miss. LEXIS 37 (Miss. 1887).

The statute applies to personal and real estate, and the mortgagor is capable of transmitting the legal estate by descent, devise, or deed, and the legal title in the mortgagee can only be asserted for the purpose of making the security available. Buck v. Payne & Raines, 52 Miss. 271, 1876 Miss. LEXIS 210 (Miss. 1876).

2. Assignment.

Judgment on the pleadings in favor of an assignee was proper because there was no set of facts that a mortgagor could prove that would entitle him to the surplus that resulted from a foreclosure sale since his conveyances divested him of any interests or rights referenced in the deed of trust; the quitclaim deed and prior conveyances divested the mortgagee of his rights and interests in the property because he manifested his intent to transfer all his right, title, and interest in the property. Hinton v. Rolison, 175 So.3d 1281, 2015 Miss. LEXIS 519 (Miss. 2015).

A bondholder under a deed of trust became an equitable assignee, at least pro tanto of the lien and indebtedness to the extent of his holdings, when he purchased the land in question after foreclosure of the deed of trust, notwithstanding that such sale was void because minor devisees of such land were not served with process in the foreclosure proceedings in the manner required by statute; and he succeeded to the rank of a mortgagee in possession from the date of confirmation of the sale, and with the right to have such indebtedness paid or tendered as a condition precedent to the right of the minor devisees, to enter possession of their claimed interests in such land under partition. Wirtz v. Gordon, 187 Miss. 866, 184 So. 798, 1938 Miss. LEXIS 321 (Miss. 1938).

Mortgagee who assigned mortgage debt and security and did not transfer to assignee previously accrued cause of action for conversion of mortgaged property waived such cause of action, since mortgagee’s interest in mortgaged property converted was based upon the mortgage and limited by debt secured and was lost by assignment. Love v. Mississippi Cottonseed Products Co., 174 Miss. 697, 159 So. 96, 165 So. 446, 1935 Miss. LEXIS 28 (Miss. 1935).

Where debt assigned, upon default, title to mortgaged property vests in assignee with right to seize and sell conferred by mortgage. Elder v. Jones, 106 Miss. 489, 64 So. 212, 1913 Miss. LEXIS 159 (Miss. 1913).

Equitable assignment of debt secured by mortgage, not assignment of real estate or interest therein, but carries security as incident thereto. Nestor v. Davis, 100 Miss. 199, 56 So. 347, 1911 Miss. LEXIS 27 (Miss. 1911).

3. Interests subject to execution.

Statute providing that trust estates are subject to claims of beneficiaries’ creditors and may be sold under execution at law provides no aid to creditor who proceeds in court of equity, nor can it subject trustee’s estate to debts of beneficiary unless beneficiary has equitable estate in property of which trustee has legal title. Sligh v. First Nat'l Bank, 704 So. 2d 1020, 1997 Miss. LEXIS 505 (Miss. 1997).

Holder of deed of trust securing indebtedness may upon default foreclose, notwithstanding prior renewal of secured indebtedness by one other than grantor in deed of trust, absent agreement to contrary. Cochran v. Deposit Guaranty Nat'l Bank, 509 So. 2d 1045, 1987 Miss. LEXIS 2607 (Miss. 1987).

This section [Code 1942, § 849] does not apply to active trust. Stansel v. Hahn, 96 Miss. 616, 50 So. 696, 1910 Miss. LEXIS 148 (Miss. 1910).

The effect of this section [Code 1942, § 849] is to subject to sale under execution at law equitable estates which in the absence of such statute could always be subject in equity. Leigh v. Harrison, 69 Miss. 923, 11 So. 604, 1892 Miss. LEXIS 11 (Miss. 1892).

If creditors proceed in equity the statute does not aid them. Leigh v. Harrison, 69 Miss. 923, 11 So. 604, 1892 Miss. LEXIS 11 (Miss. 1892).

This section [Code 1942, § 849] applies only where there is an equitable estate in the property itself. Where there is an active trust as a mere duty or power in the trustee having the legal title to collect and pay over rents and income to the cestui que trust the statute of uses does not apply. Leigh v. Harrison, 69 Miss. 923, 11 So. 604, 1892 Miss. LEXIS 11 (Miss. 1892).

Personal property cannot be held under execution against the right of the mortgagee after condition broken. Butler v. Lee, 54 Miss. 476, 1877 Miss. LEXIS 29 (Miss. 1877).

The interest of the mortgagee, after condition broken, is not vendible under execution. Buckley v. Daley, 45 Miss. 338, 1871 Miss. LEXIS 81 (Miss. 1871).

The equity of redemption is vendible under execution before sale under the mortgage. Carpenter v. Bowen, 42 Miss. 28, 1868 Miss. LEXIS 32 (Miss. 1868); Byrd v. Clarke, 52 Miss. 623, 1876 Miss. LEXIS 266 (Miss. 1876); Vicksburg & M. R. Co. v. McCutchen, 52 Miss. 645, 1876 Miss. LEXIS 270 (Miss. 1876).

4. Rights of purchaser at execution sale.

One who buys at execution sale land standing in the name of the judgment debtor on the record of deeds acquires title against a prior unrecorded conveyance of which the judgment creditor has no notice. Hart v. Gardner, 81 Miss. 650, 33 So. 442, 1902 Miss. LEXIS 183 (Miss. 1902).

RESEARCH REFERENCES

ALR.

Right of trustee to withhold trust payments from beneficiary to obtain payment of personal debt of latter to him, or to set off such debt against payment to beneficiary. 8 A.L.R.2d 209.

Trustee’s power to compromise and settle claims and actions by or against trust estate. 35 A.L.R.2d 967.

Am. Jur.

55 Am. Jur. 2d, Mortgages §§ 8 et seq.

13 Am. Jur. Legal Forms 2d, Mortgages § 179:126 (Mississippi-deed of trust).

CJS.

59 C.J.S., Mortgages §§ 41 et seq.

Law Reviews.

The effect of bankruptcy and encumbrances on mineral interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

Amendment Notes —

The 2000 amendment inserted “whether such mortgage be given to the seller or to a third-party lender.”

Cross References —

Lien on land sold on credit, see §11-5-97.

Judgment liens, see §§11-7-191 et seq.

Recording of notice of suit affecting real estate, see §11-47-3.

Redemption by mortgagee of land sold for taxes, see §27-45-7.

Rights of purchaser at tax sale, see §27-45-27.

Lien barred on the face of the record, see §89-5-19.

Sale of personal property to pay purchase money for land, see §91-7-189.

Purchase-money leases upon decedent’s property, see §91-7-209.

JUDICIAL DECISIONS

1. Reformation of deed.

Chancery court properly granted a bank summary judgment in its action for a declaratory judgment and reformation of its deed of trust to correspond with the corrected description contained in a grantee’s deed and thus, allow it to proceed with foreclosure, because due to a scrivener’s error, the deed and deed of trust listed the wrong section and county. Williams v. US Bank Trust, N.A., 239 So.3d 540, 2017 Miss. App. LEXIS 657 (Miss. Ct. App. 2017).

JUDICIAL DECISIONS

1. In general.

2. Pleadings.

3. Evidence; burden of proof.

4. Effect of contemporaneously executed writings.

1. In general.

The wording of a deed which provided that “we hereby bargain, sell, convey and warrant to the Trustees of Oakgrove Consolidated High School and their successors the following described land. . . ” could only connote a conveyance absolute and the grantors’ children would not be heard some 50 years later to say that the grantors’ intent was something entirely different from what was expressed in the plain and simple legalese in the recorded instrument of conveyance. Garraway v. Yonce, 549 So. 2d 1341, 1989 Miss. LEXIS 453 (Miss. 1989).

A conveyance by warranty deed of property for $400 which was capable of providing an annual income of $260, without any improvements having been added, and was valued at from $1650 to $2000, was grossly inadequate and was rescinded as constituting a mortgage rather than a sale. Lampley v. Pertuit, 199 So. 2d 452, 1967 Miss. LEXIS 1302 (Miss. 1967).

Under this section [Code 1942, § 272] it may be proved by parol evidence that a deed absolute on its face was procured by fraud and that possession was never parted with so that the instrument was a mortgage. Bethea v. Mullins, 226 Miss. 795, 85 So. 2d 452, 1956 Miss. LEXIS 465 (Miss. 1956).

Where it was shown that the grantor never parted with the possession of land conveyed, parol evidence is competent to show the conveyance to be a mortgage without showing fraud in its procurement. Emmons v. Emmons, 217 Miss. 594, 64 So. 2d 753, 1953 Miss. LEXIS 467 (Miss. 1953).

Before the maker of an absolute deed can offer parol evidence to have it declared to be a mortgage only, he must show either that he had not parted with possession with the land conveyed or that there was fraud in its procurement. Nix v. Nix, 210 Miss. 821, 50 So. 2d 396, 1951 Miss. LEXIS 317 (Miss. 1951).

A quitclaim deed executed by the former owner of tax-forfeited land of a quit-claim deed to the patents issued to him from the state, executed under an alleged agreement of the grantee to reconvey on payment by such former owner of the money expended for the patents, could not be considered a mortgage or security for the money, where the grantee thereunder went into possession by the mandate of the unlawful entry and detainer course, and the grantor was therefore not in a position of a mortgagor in possession. Lewis v. Williams, 186 Miss. 701, 191 So. 479, 1939 Miss. LEXIS 256 (Miss. 1939).

This section [Code 1942, § 272] does not apply to a deed made by the vendors of land to one who paid the purchase price thereof on behalf of another, holding such title as security for the repayment thereof, under a parol agreement to convey it to such other person upon payment of the purchase price, where the real purchaser remained in possession. Tanous v. White, 186 Miss. 556, 191 So. 278, 1939 Miss. LEXIS 243 (Miss. 1939).

Relief to the complainants by way of a conveyance of the land involved was not precluded by this section [Code 1942, § 272] where a money lender paid the purchase price of land on behalf of the complainants who were then lessees in possession thereof, and took title thereof in his own name as security for the purchase price under an oral agreement to convey it to the complainants upon payment of the purchase price. Tanous v. White, 186 Miss. 556, 191 So. 278, 1939 Miss. LEXIS 243 (Miss. 1939).

Where bill seeking to have deed, in connection with contemporaneous written agreement giving option to repurchase, declared to be a mortgage, contained no allegation of fraud, statute barring parol evidence to show that instrument constituted mortgage held applicable. Dixon v. Wright, 175 Miss. 191, 166 So. 374, 1936 Miss. LEXIS 21 (Miss. 1936).

This section [Code 1942, § 272] applies only to tangible property; It does not embrace the transfer of a life insurance policy made during the life of the assured, which may be shown by parol evidence to be a mere security for a debt. Armstrong v. Owens, 83 Miss. 10, 35 So. 320, 1903 Miss. LEXIS 4 (Miss. 1903).

An absolute conveyance cannot be declared a mortgage on the parol evidence of the grantor, who has parted with the possession. Schwartz v. Lieber, 32 So. 954 (Miss. 1902).

Parol evidence to show that a deed absolute in form is not in fact a mortgage is admissible where the grantor has not parted with the possession of the property, or where the issue is one of fraud in the procurement of the deed, although the grantor may have parted with the possession of the property. Culp v. Wooten, 79 Miss. 503, 31 So. 1, 1901 Miss. LEXIS 83 (Miss. 1901).

Where a husband and wife temporarily remove from their homestead and cultivate other lands for a year or two, leaving their children in the occupancy of the homestead, intending themselves all the time to return to it, they have not parted with its possession. Culp v. Wooten, 79 Miss. 503, 31 So. 1, 1901 Miss. LEXIS 83 (Miss. 1901).

This section [Code 1942, § 272] has no application where the debtor was in possession of the grantor’s property when the deed was executed and remained in possession. Fultz v. Peterson, 78 Miss. 128, 28 So. 829, 1900 Miss. LEXIS 98 (Miss. 1900).

2. Pleadings.

A bill in equity to have a deed, absolute on its face, adjudged a mortgage, which charges that it was intended by the parties to be a mortgage, is not demurrable for failing to charge that the maker of the deed retained possession, or for failing to show that the agreement evidencing the intent was not in writing. Schwartz v. Lieber, 79 Miss. 257, 30 So. 649, 1901 Miss. LEXIS 49 (Miss. 1901).

3. Evidence; burden of proof.

Deed acted only as debt-securing mortgage and parol evidence concerning deed was admissible to show that it had been intended for security, and not as conveyance, where grantee in deed stated on numerous occasions that deed was debt-securing mortgage, and that grantor owed him, not bank; additionally, deed at issue was one of several transactions where individuals secured loans after executing deeds to same individual who was grantee in instant case, and in those cases upon repayment, individual would reconvey property; there was also testimony that grantor had continued to express ownership interest in property until time of his death, speaking to his children about land and timber. Sweet v. Luster, 513 So. 2d 1240, 1987 Miss. LEXIS 2842 (Miss. 1987).

Notwithstanding the provisions of §89-1-47, parole evidence could be introduced to prove that a deed, absolute on its face, was intended as a mortgage, where the grantor retained possession of the property. Harris v. Kemp, 451 So. 2d 1362, 1984 Miss. LEXIS 1774 (Miss. 1984).

Chancellor’s finding that a deed was in fact a deed of trust given to secure the payment of funds advanced for the purchase price of the land rather than a conveyance was supported by the evidence. Fondren v. State, 199 So. 2d 625, 1967 Miss. LEXIS 1306 (Miss. 1967).

After execution of a deed by a grantor to grantee, the grantee was presumed to be in possession of the undivided one-fourth interest in land which he had purchased by virtue of the deed, and the burden of proof was on those who sought to introduce parol proof to show that the grantor in the deed remained in possession after execution thereof. Conner v. Conner, 238 Miss. 471, 119 So. 2d 240, 1960 Miss. LEXIS 430 (Miss. 1960).

Even if evidence concerning possession of property had shown that a grantor remained in possession of part of land after execution of the deed to grantee, appellants would not have been entitled to have the deed adjudged to be a mortgage where the evidence was insufficient to prove that the deed was intended as a mortgage. Conner v. Conner, 238 Miss. 471, 119 So. 2d 240, 1960 Miss. LEXIS 430 (Miss. 1960).

In a suit to have an absolute deed declared a mortgage, where grantor retained control over the land and the grantee never assumed possession nor exercised any control over the land and in fact did not know the boundaries of the land, there was sufficient proof under this section [Code 1942, § 272] that the instrument was intended as a mortgage. Bethea v. Mullins, 226 Miss. 795, 85 So. 2d 452, 1956 Miss. LEXIS 465 (Miss. 1956).

There is a presumption of possession in a grantee in a warranty deed and that the burden of proof is upon one who seeks to introduce parol proof under this section [Code 1942, § 272] to show that the grantor remained in possession. Bethea v. Mullins, 226 Miss. 795, 85 So. 2d 452, 1956 Miss. LEXIS 465 (Miss. 1956).

Presumption of grantee’s possession must be overcome, before deed absolute in form can be declared mortgage. Jordan v. Jordan, 145 Miss. 779, 111 So. 102, 1927 Miss. LEXIS 137 (Miss. 1927).

Evidence held not to overcome presumption of grantee’s possession required before declaring deed a mortgage. Jordan v. Jordan, 145 Miss. 779, 111 So. 102, 1927 Miss. LEXIS 137 (Miss. 1927).

Statute held not to prohibit proof that assignment of life policy, absolute in form, is intended as collateral security. Garner v. Townes, 134 Miss. 791, 100 So. 20, 1924 Miss. LEXIS 328 (Miss. 1924).

4. Effect of contemporaneously executed writings.

An unrecorded contemporaneous writing showing a recorded deed absolute in form to be a mortgage is not void; The conveyance being of record, the failure to record the writing showing its real character will not affect the validity of the mortgage. Barkwell v. Swan, 69 Miss. 907, 13 So. 809, 1892 Miss. LEXIS 31 (Miss. 1892).

RESEARCH REFERENCES

ALR.

The parol evidence rule and admissibility of extrinsic evidence to establish or clarify ambiguity in written contract. 40 A.L.R.3d 1384.

Am. Jur.

72 Am. Jur. 2d, Statute of Frauds § 81.

4 Am. Jur. Proof of Facts 2d, Warrant Deed Intended as Mortgage, §§ 6 et seq. (proof that deed was intended as mortgage).

CJS.

37 C.J.S., Frauds, Statute of § 148.

Amendment Notes —

The 1999 amendment rewrote the section.

The 2000 amendment rewrote (4).

Cross References —

Remedy on mortgage barred when debt is barred, see §15-1-21.

Limitation of actions on installments notes after foreclosure of mortgage, see §15-1-23.

Security interests created under the Mississippi Uniform Commercial Code, see §§75-9-101 et seq.

Application of partial payments, see §75-17-9.

Joint and several obligations, see §§85-5-1,85-5-3.

Liens apparently barred on the face of the record, see §89-5-19.

Entry of satisfaction upon record of mortgage or deed of trust, see §89-5-21.

JUDICIAL DECISIONS

1. In general.

Bank’s mortgage lien against residential property did not have priority over a prior recorded deed of trust against the same property securing a line of credit, since the bank’s payment of the outstanding balance on the line of credit did not cancel the line of credit or the deed of trust, and the deed of trust remained in effect when the term of the line of credit was renewed by agreement. U.S. Bank N.A. v. State Bank & Trust Co., 45 F. Supp. 3d 582, 2014 U.S. Dist. LEXIS 95934 (S.D. Miss. 2014).

Although the assignment was absolute on its face, it gave the bank only a qualified interest in the homeowner’s property. Since the assignment was given as collateral security for the homeseller’s loan, the interest conveyed was commensurate with the debt; hence, when the homeseller paid off his loan to the bank, the bank’s interest in the secured property ceased as of that moment, and the bank’s interest was reinvested in the homeseller to the same extent as it would have been if an actual reassignment from the bank to the homeseller had been executed. McKinley v. Lamar Bank, 918 So. 2d 689, 2004 Miss. App. LEXIS 709 (Miss. Ct. App. 2004), rev'd, 2005 Miss. LEXIS 611 (Miss. Sept. 22, 2005).

Debtor claiming usury before foreclosure sale put purchaser on notice of his claim and was entitled to have sale set aside and title declared vested in him. Hardin v. Grenada Bank, 182 Miss. 689, 180 So. 805, 1938 Miss. LEXIS 157 (Miss. 1938).

In action for death of cattle, where evidence established debt secured by mortgage on cattel was paid, exclusion of mortgage from evidence was not error. Jackson County v. Meaut, 181 Miss. 282, 179 So. 343, 1938 Miss. LEXIS 69 (Miss. 1938).

Mortgage which was retained by mortgagees and not canceled on record after payment of mortgage debt, and letter of mortgagors stating that they wished mortgage to continue in force as collateral security for sum subsequently advanced by mortgagees, constituted “equitable mortgage” enforceable in chancery. Turner v. Givens, 176 Miss. 214, 166 So. 367, 1936 Miss. LEXIS 100 (Miss. 1936).

Payment of debt for which deed of trust had been assigned as collateral security extinguished debt, so that assignee could not foreclose deed of trust. Blacketor v. Cartee, 172 Miss. 889, 161 So. 696, 1935 Miss. LEXIS 188 (Miss. 1935).

Redelivery of deed of trust on homestead, by one of grantors, after payment held not to create enforceable lien for future debt. Jones v. Hyman Mercantile Co., 134 Miss. 275, 98 So. 845, 1924 Miss. LEXIS 268 (Miss. 1924).

Deed of trust or mortgage extinguished by payment. Munn v. Potter, 111 Miss. 180, 71 So. 315, 1916 Miss. LEXIS 264 (Miss. 1916).

Warranty deed given to secure loan, with ticket by grantee evidencing purpose, should be cancelled or reconveyance directed upon payment of loan. Lee v. Wilkinson, 105 Miss. 358, 62 So. 275, 1913 Miss. LEXIS 206 (Miss. 1913).

RESEARCH REFERENCES

ALR.

Construction of provision in real-estate mortgage, land contract, or other security instrument for release of separate parcels of land as payments are made. 41 A.L.R.3d 7.

Am. Jur.

55 Am. Jur. 2d, Mortgages §§ 345 et seq.

CJS.

59 C.J.S., Mortgages §§ 551, 552 et seq.

Law Reviews.

The effect of bankruptcy and encumbrances on mineral interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

Cross References —

Entry of satisfaction upon record, see §89-5-21.

JUDICIAL DECISIONS

1. In general.

Company acquiring through mesne conveyances realty sold by insane person’s guardian after releases thereof by court orders from recorded trust deed, substituted for trust deeds, released of record by trustees, as security for loans of ward’s funds to guardian, held without constructive notice of such instruments and hence not liable for balance due ward from guardian, where substituted deed erroneously described property. Pan-American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803, 1934 Miss. LEXIS 76 (Miss. 1934).

Where trustee in trust deed satisfied trust deed on records and took second trust deed, payable to himself, and assigned latter to secure his individual indebtedness, assignees were charged constructively with notice that second trust deed omitted name of real beneficiary. Eagle Lumber & Supply Co. v. De Weese, 163 Miss. 602, 135 So. 490, 1931 Miss. LEXIS 4 (Miss. 1931).

Title of assignees of second trust deed held dependent upon validity of fraudulent cancellation of first trust deed by trustee. Eagle Lumber & Supply Co. v. De Weese, 163 Miss. 602, 135 So. 490, 1931 Miss. LEXIS 4 (Miss. 1931).

RESEARCH REFERENCES

ALR.

Conflict of laws as to application of statute proscribing or limiting availability of action for deficiency after sale of collateral real estate. 44 A.L.R.3d 922.

OPINIONS OF THE ATTORNEY GENERAL

There is no requirement in Section 9-5-131 et seq., which would require a chancery clerk to post foreclosure notices and execute an affidavit stating that the same was posted, nor is there such requirement or authority in Sections 25-7-9, 25-7-11, and 89-1-53 et. seq., however, pursuant to Sections 25-7-33 and 25-7-45, if a clerk chooses to post such notices, he may assess a fee of $ .25 for executing an affidavit stating that the same was posted. Gex, Mar. 14, 2003, A.G. Op. #03-0112.

RESEARCH REFERENCES

ALR.

Necessity of Production of Original Note Involved in Mortgage Foreclosure – Twenty-First Century Cases. 86 A.L.R.6th 411.

Am. Jur.

18 Am. Jur. Pl & Pr Forms (Rev) Mortgages, Form 153.1 (complaint, petition, or declaration-to foreclose mortgage-another form).

Cross References —

Sale of land in subdivisions, see Miss. Const., Art. 4, § 111.

Injunctions to restrain sale of personal property seized under a deed of trust or mortgage with power of sale, see §11-13-21.

Limitation of actions concerning land, see §15-1-7.

Limitation on suits to redeem mortgages, see §15-1-19.

Reinstatement of loan by savings association prior to foreclosure sale, see §81-12-169.

For additional notice requirements in mortgage foreclosure procedures that apply to mortgage broker licensees under Section81-18-1 et seq., see §81-18-55.

Reference in deed of conveyance under foreclosure proceedings to mortgages and deeds of trust on land, see §89-1-53.

Method of sale where terms of deed of trust or mortgage are silent, see §89-1-57.

Suspension of mortgage foreclosure after declared disaster or emergency, see §§89-1-303 et seq.

Criminal offense of selling property on which there is lien without informing vendee, see §97-19-51.

JUDICIAL DECISIONS

1. In general.

2. Validity.

3. Construction with other laws.

4. Sale in parcels.

5. Inadequacy of price.

6. Notice of sale, in general.

7. —Time of advertising.

8. —Duration of advertising.

9. —Description of land.

10. —Disclosure of name of mortgagor or his successor in title.

11. —Place of posting notice.

12. —Effect of failure to post notice.

13. Time and place of sale.

14. Cure of error by lapse of time.

15. Miscellaneous.

1. In general.

If a secured creditor is authorized to foreclose by power of sale, after the debtor’s default and upon compliance with the deed of trust or other instrument, the secured creditor may sell any or all of the real estate that is subject to the security interest in its then condition or after any reasonable rehabilitation or preparation for sale. Every aspect of the sale, including the method, advertising, time, place and terms, must be commercially reasonable; this is an objective standard. Wansley v. First Nat'l Bank, 566 So. 2d 1218, 1990 Miss. LEXIS 452 (Miss. 1990).

Once deed of trust has matured by its own terms, notice of default in monetary payment is not necessary to maker who is charged with knowledge of terms of obligation. Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461, 1985 Miss. LEXIS 2177 (Miss. 1985).

Upon default by a debtor in performance of the conditions of a deed of trust, the trustee is empowered to foreclose pursuant to §§89-1-55 and89-1-43, and, if the statutory requirements are observed, a sale under the power is a perfect foreclosure; the trustee’s deed is a conveyance as absolute as if the trustee held title in fee simple, and it cuts off the equity of redemption and any other rights in and to the property, all of which are transferred to the foreclosure sale proceeds, with the sole exception of rights perfected prior to the filing of the deed of trust under which the foreclosure sale is held. Peoples Bank & Trust Co. etc. v. L & T Developers, Inc., 434 So. 2d 699, 1983 Miss. LEXIS 2687 (Miss. 1983).

This section [Code 1942, § 888] has no application to sales under a decree of foreclosure. Worthy v. Graham, 246 Miss. 358, 149 So. 2d 469, 1963 Miss. LEXIS 449 (Miss. 1963).

Recitals in foreclosure deed raised a presumption of compliance with this section [Code 1942, § 888]. Gardner v. State, 235 Miss. 119, 108 So. 2d 592, 1959 Miss. LEXIS 410 (Miss. 1959).

No equity of redemption exists after a mortgage sale. Dean v. Simpson, 235 Miss. 162, 108 So. 2d 546, 1959 Miss. LEXIS 414 (Miss. 1959).

Trustee has no authority to proceed with foreclosure of deed of trust when mortgagor, pursuant to agreement for reduction in payment, has paid on indebtedness at reduced rate up to time of foreclosure and mortgagor is not in default or arrears at time of foreclosure. Triplett v. Bridgforth, 205 Miss. 328, 38 So. 2d 756, 1949 Miss. LEXIS 434 (Miss. 1949).

A condition in a trust deed that the trustee foreclose the trust deed pursuant to the request of the holders of the defaulted notes secured does not require that the directors of a bank holding such notes enter a resolution on their minutes requesting foreclosure, and an executive officer of the bank may make such request. Texas Pacific Coal & Oil Co. v. Mulvihill, 200 Miss. 497, 27 So. 2d 719, 1946 Miss. LEXIS 315 (Miss. 1946).

This section [Code 1942, § 888], being in derogation of the common law, must be strictly construed. Cook v. Taylor, 200 Miss. 381, 27 So. 2d 404, 1946 Miss. LEXIS 301 (Miss. 1946).

Requirements of this section [Code 1942, § 888] may be waived by parties to a deed of trust. Baker v. Connecticut General Life Ins. Co., 196 Miss. 701, 18 So. 2d 438, 1944 Miss. LEXIS 251 (Miss. 1944).

Beneficiary in deed of trust has no estate in the land, but only an interest therein to the extent that he can cause the trustee to sell the land and apply its proceeds to the payment of the secured debt. Baker v. Connecticut General Life Ins. Co., 196 Miss. 701, 18 So. 2d 438, 1944 Miss. LEXIS 251 (Miss. 1944).

Persons foreclosing mortgages by sales should carefully follow conditions in trust deed and pertinent statutes. Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218, 151 So. 761, 1933 Miss. LEXIS 168 (Miss. 1933).

This section [Code 1942, § 888] is inapplicable to deeds of trust executed before its passage. Davis v. O'Connell, 92 Miss. 348, 47 So. 672, 1908 Miss. LEXIS 258 (Miss. 1908).

2. Validity.

Because a second mortgagee lawfully foreclosed the mortgagor’s property under Miss. Code Ann. §89-1-55 and paid off a primary loan and there was no legal prohibition under Miss. Code Ann. §§11-5-101 and89-1-63 for the mortgagee’s affiliate to purchase the property at foreclosure, any rights of the mortgagor in the property were extinguished by the foreclosure sale. Pepper v. Homesales, Inc., 2009 U.S. Dist. LEXIS 16692 (S.D. Miss. Mar. 3, 2009).

Nonjudicial foreclosure of deed of trust constitutes private action authorized by contract and does not come within scope of due process clause of Federal Constitution. Leininger v. Merchants & Farmers Bank, 481 So. 2d 1086, 1986 Miss. LEXIS 2362 (Miss. 1986).

Nonjudicial foreclosure procedure authorized by this section is not per se unconstitutional. United States v. White, 429 F. Supp. 1245, 1977 U.S. Dist. LEXIS 16950 (N.D. Miss. 1977).

3. Construction with other laws.

Debtor was divested of all legal and equitable title in foreclosed property at conclusion of foreclosure sale, and therefore could not avoid sale on ground that Chapter 13 petition was filed before foreclosure deed was delivered to successful bidder at sale or recorded. In re Applewhite, 106 B.R. 468, 1989 Bankr. LEXIS 1908 (Bankr. S.D. Miss. 1989).

Although the district court’s application of the Uniform Commercial Code was correct with respect to issues pertaining to the Small Business Administration’s auction of chattel pursuant to the guaranty agreement between the SBA and appellants, which provided that the SBA may sell the secured property on default subject only that “such powers to be exercised only to the extent permitted by law”, Mississippi real property law, §89-1-55, governed the propriety of the sale of borrower’s leasehold, rather than §75-9-104(j), which specifically excludes from coverage transfers of real property, including leaseholds. United States v. Irby, 618 F.2d 352, 1980 U.S. App. LEXIS 16919 (5th Cir. Miss. 1980).

As a defense to an action by a successor in title to redeem encumbered land from the holder of a trust deed who had purportedly purchased the encumbered land at an invalid trustee’s foreclosure sale, and had taken possession of the land and paid the taxes thereon for 24 years, the holder of the trust deed could rely on either Code 1942, § 711, 10-year statute of adverse possession, or Code 1942, § 718, as a mortgagee in possession after a condition broken, notwithstanding the provision in this section [Code 1942, § 888], that an error in the mode of sale such as makes a sale void would not be cured by any statute of limitations, except after the 10-year statute of adverse possession. Gulfport Farm & Pasture Co. v. Hancock Bank, 232 Miss. 289, 98 So. 2d 862, 1957 Miss. LEXIS 474 (Miss. 1957), cert. denied, 358 U.S. 67, 79 S. Ct. 122, 3 L. Ed. 2d 106, 1958 U.S. LEXIS 178 (U.S. 1958).

A sale under a valid power to foreclose a mortgage lien superior to federal tax liens, which was begun before the institution of a Code 1942, § 7403 proceeding by the government to foreclose its tax lien but completed during the pendency thereof, effectually extinguished the government’s tax liens. United States v. Boyd, 246 F.2d 477, 1957 U.S. App. LEXIS 5033 (5th Cir. Miss.), cert. denied, 355 U.S. 889, 78 S. Ct. 261, 2 L. Ed. 2d 188, 1957 U.S. LEXIS 67 (U.S. 1957).

Where deed of trust provides trustee may sell after giving legal notice of time, place and terms of sale, Code 1906, § 2821 does not apply and it is sufficient if he complies with this section [Code 1942, § 888]. Lynchburg Shoe Co. v. Castleman, 116 Miss. 188, 76 So. 878, 1917 Miss. LEXIS 306 (Miss. 1917).

4. Sale in parcels.

When trustee first offers property for sale as whole and bid of mortgagee is received and subsequently, upon objection of mortgagor, trustee offers property by individual lots with less favorable results, trustee has not acted in bad faith or unfairly. Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461, 1985 Miss. LEXIS 2177 (Miss. 1985).

Where parties in a deed of trust of lands in two different counties specifically contracted that each parcel be sold in a county where each was situated, statute was complied with where notices and advertisements of sale on same day for each parcel were duly posted and published in county where each was situated, without any reference to sale upon a parcel. Lee v. Magnolia Bank, 209 Miss. 804, 48 So. 2d 515, 1950 Miss. LEXIS 446 (Miss. 1950).

Foreclosure sale of three 80-acre tracts of land under deed of trust is not void, although not combining with two contiguous 80-acre tracts the separated 80-acre tract so as to sell the 240 acres as whole, where homestead stood on the 160 acres, which owners used for farming purposes and separated 80-acre tract was detached about quarter or half mile, there was no road connecting them, there was no house on this 80-acre tract and it had been abandoned for farming purpose for many years. Clark v. Sayle, 208 Miss. 559, 45 So. 2d 138, 1950 Miss. LEXIS 274 (Miss. 1950).

This section [Code 1942, § 888] is not violated by offering the land, after foreclosure of trust deed, for sale by forties and then as a whole. Gulf Refining Co. v. Harrison, 201 Miss. 294, 30 So. 2d 44, 1947 Miss. LEXIS 397 (Miss. 1947).

In the sale of three 80-acre tracts, two of the tracts which were contiguous should have been offered together as well as separately; and failure so to do vitiated the sale as to all three tracts. Clark v. Carpenter, 201 Miss. 436, 29 So. 2d 215, 1947 Miss. LEXIS 404 (Miss. 1947).

Lands described in a trust deed other than by subdivisions of governmental surveys do not come within the language of this section [Code 1942, § 888] requiring sale in parcels. Texas Pacific Coal & Oil Co. v. Mulvihill, 200 Miss. 497, 27 So. 2d 719, 1946 Miss. LEXIS 315 (Miss. 1946).

Grantor of trust deed waived requirements of this section [Code 1942, § 888] by inserting provision in deed authorizing trustee to sell the land “in parcel or as a whole, as he may deem best,” and by fact that grantor was present at the sale and made no objection to the land not being offered for sale in accordance with such requirements. Baker v. Connecticut General Life Ins. Co., 196 Miss. 701, 18 So. 2d 438, 1944 Miss. LEXIS 251 (Miss. 1944).

Parties may direct foreclosure sales in parcels or in bulk and may waive statutory requirement. Rawlings v. Anderson, 149 Miss. 632, 115 So. 714, 1928 Miss. LEXIS 60 (Miss. 1928).

Trustee under trust deed offering land in 160 acre lots “undescribed” did not comply with statute and sale was void. Rawlings v. Anderson, 149 Miss. 632, 115 So. 714, 1928 Miss. LEXIS 60 (Miss. 1928).

Trust deed directing trustee to sell lands or “sufficiency thereof” to satisfy debt required sale in parcel. Rawlings v. Anderson, 149 Miss. 632, 115 So. 714, 1928 Miss. LEXIS 60 (Miss. 1928).

Plantation held to comprise one single tract although 80 acres was separated from balance about half a mile but connected by public road, and should have been sold as if it lay contiguously. Provine v. Thornton, 92 Miss. 395, 46 So. 950, 1908 Miss. LEXIS 253 (Miss. 1908).

Provision requiring sale of land under trust deed in 160 acre tracts may be waived by parties. Brown v. British American Mortg. Co., 86 Miss. 388, 38 So. 312, 1905 Miss. LEXIS 26 (Miss. 1905).

5. Inadequacy of price.

Sale price of property will not be found to be inadequate upon mortgagor’s assertion that market value is release value established for release of single lot upon sale by subdivision developer where release value is not necessarily fair market value of lot and record does not disclose proof of fair market value otherwise. Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461, 1985 Miss. LEXIS 2177 (Miss. 1985).

A mortgagee, who purchased the mortgaged property at a foreclosure sale, was required to account to the mortgagor for the surplus arising from a sale of the property by the mortgagee within two weeks for two and one-half times the amount bid by the mortgagee at the foreclosure sale. Central Financial Services, Inc. v. Spears, 425 So. 2d 403, 1983 Miss. LEXIS 2348 (Miss. 1983).

Sale of land made by trustee in foreclosing deed of trust for total bid of a little more than 50% of its value will not be set aside for inadequacy of price, if sale is otherwise valid, but inadequacy of price may be taken into consideration along with other inequities in determining whether such sale should be set aside. Triplett v. Bridgforth, 205 Miss. 328, 38 So. 2d 756, 1949 Miss. LEXIS 434 (Miss. 1949).

In determining adequacy of the price paid by a mortgagee at foreclosure sale, the amount of the indebtedness unpaid and barred by the statute of limitations at the time of an action to set the sale aside was taken into consideration. Harris v. Bailey Ave. Park, Inc., 202 Miss. 776, 32 So. 2d 689, 1947 Miss. LEXIS 340 (Miss. 1947).

Sale of land by trustee not set aside merely because price inadequate unless such as to shock conscience. Weyburn v. Watkins, 90 Miss. 728, 44 So. 145, 1907 Miss. LEXIS 111 (Miss. 1907).

6. Notice of sale, in general.

Circuit court properly granted summary judgment to a purchaser at a foreclosure sale and dismissed from the borrower’s suit pursuant to the bona fide purchaser defense because the trustee properly followed the statutory posting and publishing requirements, the borrower failed raise a genuine issue for trial where she did not show that notice was not given, that the foreclosure and subsequent sale were wrongful, or to context the purchaser’s sworn affidavit stating that he purchased the property for valuable consideration without notice of her alleged claims. Blanchard v. Mize, 186 So.3d 403, 2016 Miss. App. LEXIS 77 (Miss. Ct. App. 2016).

Because Miss. Code Ann. §89-1-55 only required the posting and publication of the notice of a foreclosure sale, a bank did not have an obligation to determine who the heirs of a deceased mortgagor were; the decedent’s heirs did not open an estate until four months after the foreclosure sale. In re Estate of May v. First Fed. Bank, 32 So.3d 1227, 2010 Miss. App. LEXIS 110 (Miss. Ct. App. 2010).

To suggest that debtor could avoid a foreclosure sale because notice was addressed to him rather than his conservator was illogical. The conservator’s duties required him to open debtor’s mail and deal with the contents in an appropriate manner, and, therefore, in this situation, notice to debtor was notice to the conservator; furthermore, the evidence showed that the conservator was living at the property and received correspondence and notices from the creditor and the creditor’s attorney. In re Beasley, 2009 Bankr. LEXIS 2353 (Bankr. N.D. Miss. Aug. 20, 2009).

Under §§89-1-55,89-1-57, and89-1-59, a bank did all that it was required to do when it sent two letters to the debtor stating that it would be forced to foreclose unless it could get a subordination from the holder of a note and deed of trust; no further notice was required in the absence of any such requirement in the agreement between the bank and the debtor. EB, Inc. v. Allen, 722 So. 2d 555, 1998 Miss. LEXIS 506 (Miss. 1998).

Notice of foreclosure sale was not defective under §89-1-55 for failing to clearly identify debtor-wife as signatory to deed where any doubts as to whether debtor-wife joined with husband in executing deed could be clarified by examining county land records. Morton v. Resolution Trust Corp., 918 F. Supp. 985, 1995 U.S. Dist. LEXIS 20453 (S.D. Miss. 1995).

Where a deed of trust stated the manner in which a sale was to be conducted and notice to be given therefor, and the trustee gave the required notice of the sale of the land under a deed of trust by public notice and by advertisement, the mortgagor of the land, who in addition was given notice by mail of the bank’s intent to foreclose, received proper notice, and the sale was valid. Rivervalley Co. v. Deposit Guaranty Nat'l Bank, 331 F. Supp. 698, 1971 U.S. Dist. LEXIS 12606 (N.D. Miss. 1971).

The holder of a secondary deed of trust has no right to notice of foreclosure, or statutory right of redemption, but may only assert an interest prior to foreclosure by paying the amounts due and subsequently engaging in foreclosure for nonpayment of his secondary deed of trust. Crystal v. Duffy, 493 So. 2d 942, 1986 Miss. LEXIS 2574 (Miss. 1986).

The mortgagor of the property or a grantee thereof who has assumed the mortgage indebtedness is entitled to notice of the sale, as owner of property. Morgan v. Linham, 227 Miss. 584, 86 So. 2d 473, 1956 Miss. LEXIS 730 (Miss. 1956).

Notice of trustee’s sale published in a newspaper during the first of the three weeks’ period of the advertisement, was not insufficient as a matter of law merely because the words “secure the payment of a certain in-” (the “in-” being the first two letters of the word “indebtedness”) were printed upside down, where error was discovered and corrected in the remaining notices, and the error did not appear at all in the typewritten notice published at the courthouse. Sly v. Gilliland, 207 Miss. 356, 42 So. 2d 393, 1949 Miss. LEXIS 348 (Miss. 1949).

Notice of trustee’s sale containing recital that trustee had been requested to foreclose said property, without mentioning who had made the request, did not render the sale void. Sly v. Gilliland, 207 Miss. 356, 42 So. 2d 393, 1949 Miss. LEXIS 348 (Miss. 1949).

Trustee’s signed notation of time and place of posting notice of sale placed at bottom of notice of trustee’s sale contained in proof of publication is incompetent evidence, when objected to, to show posting of notice of sale, when proof of publication was not made part of trustee’s deed by its terms and recitals. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Recitals in trustee’s conveyance to purchaser at foreclosure sale as to the manner in which he advertised property for sale overcame prima facie presumption that notice was properly posted and that trustee performed all acts in pais required of him. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Where the parties have agreed in the deed of trust as to the notice of sale required and such notice complies with this statute, no other notice is necessary. Harris v. Bailey Ave. Park, Inc., 202 Miss. 776, 32 So. 2d 689, 1947 Miss. LEXIS 340 (Miss. 1947).

Words, “according to law,” inserted with pen and ink or by typewriter in printed provision in trust deed providing for sale of the land in event of default “after giving notice of the time, place, and terms of sale, by advertisement posted at least _______________ days before the day of sale in three public places in county, immediately after the words ”posted at least _______________ days“ and ”in three public places,“ entirely displaced the printed provision in respect to requirement as to manner of advertising foreclosure sale, so that only such requirements as then provided by law under this section [Code 1942, § 888] were necessary. Pruitt v. Dean, 198 Miss. 71, 21 So. 2d 300, 1945 Miss. LEXIS 169 (Miss. 1945); Pruitt v. Dean, 200 Miss. 167, 26 So. 2d 342, 1946 Miss. LEXIS 278 (Miss. 1946).

Deed made by trustee under trust deed will be prima facie presumed to have been made in compliance with requirements of notice of time, place and terms of sale, unless recitals in the deed show otherwise. Chandler v. Bank of Brooksville, 181 Miss. 529, 178 So. 797, 1938 Miss. LEXIS 94 (Miss. 1938).

Trustee’s deed reciting that notice was published “for the length of time required by law” held sufficient in absence of evidence publication was not made weekly. Chandler v. Bank of Brooksville, 181 Miss. 529, 178 So. 797, 1938 Miss. LEXIS 94 (Miss. 1938).

Recitals in trustee’s deed; burden on purchaser at foreclosure to show in ejectment posting of notice of sale. Jones v. Frank, 123 Miss. 280, 85 So. 310, 1920 Miss. LEXIS 30 (Miss. 1920).

7. —Time of advertising.

Publication must be made for three weeks next before and immediately preceding day of sale, and where more than one week elapsed between last advertisement and day of sale, sale was void. Planters' Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323, 1919 Miss. LEXIS 110 (Miss. 1919).

Notices published October 8, 15, 22 and 29 with sale November 2, and publication July 7, 14, 21 and 28 with sale July 31, were sufficient, less than week elapsing between last notice and day of sale. Lake v. Castleman, 116 Miss. 175, 76 So. 877, 1917 Miss. LEXIS 304 (Miss. 1917).

8. —Duration of advertising.

Attorney testified that he published notice of the foreclosure sale and posted notice at the Leflore County Courthouse in Greenwood, Mississippi, for the prescribed three week period. Through the testimony of its attorney, the creditor demonstrated that it complied with the notice requirements of Miss. Code Ann. §89-1-55. In re Beasley, 2009 Bankr. LEXIS 2353 (Bankr. N.D. Miss. Aug. 20, 2009).

Where the trustee provided for notice of sale to be published and posted for twenty-one days prior to the sale, and a publication of notice of sale was made on May 19, May 26, June 2, and June 9, 1950 and the notice of sale was posted continuously at the courthouse door May 19th to date of sale both giving notice that the sale would be held on June 12, 1950, this was a compliance with the trust deed and with this section [Code 1942, § 888]. McAllister v. Byrd, 212 Miss. 742, 55 So. 2d 435, 1951 Miss. LEXIS 504 (Miss. 1951).

Any portion of statute, except the part which requires advertisement for three consecutive weeks preceding sale, may be waived by the parties or may be changed by contract of the parties. Lee v. Magnolia Bank, 209 Miss. 804, 48 So. 2d 515, 1950 Miss. LEXIS 446 (Miss. 1950).

Advertisement for three consecutive weeks and sale 7 days after last publication complied with law. Donald v. Commercial Bank of Magee, 132 Miss. 578, 97 So. 12, 1923 Miss. LEXIS 92 (Miss. 1923).

Advertising longer than statute requires does not render sale void. Jones v. Salmon, 128 Miss. 508, 91 So. 199, 1922 Miss. LEXIS 139 (Miss. 1922).

9. —Description of land.

There was no valid sale of a property because the published legal description for the notice of sale did not include the property in question. Accordingly, the circuit court erred in awarding a deficiency judgment in that, because the property had not yet been sold at foreclosure, there was no deficiency. Dorman v. Trustmark Nat'l Bank, — So.3d —, 2019 Miss. App. LEXIS 198 (Miss. Ct. App. May 7, 2019).

Notice of trustee’s sale published in a newspaper and posted at courthouse correctly describing the land to be sold was sufficient notice, notwithstanding reference to deed of trust recorded in county records in which the description was defective because of improper punctuation. Sly v. Gilliland, 207 Miss. 356, 42 So. 2d 393, 1949 Miss. LEXIS 348 (Miss. 1949).

Fact that trustee’s deed made pursuant to foreclosure sale purported to convey land not described in deed of trust did not entitle mortgagors to cancelation of trustee’s deed, where notice of foreclosure sale correctly described the land in the deed of trust. Pruitt v. Dean, 198 Miss. 71, 21 So. 2d 300, 1945 Miss. LEXIS 169 (Miss. 1945); Pruitt v. Dean, 200 Miss. 167, 26 So. 2d 342, 1946 Miss. LEXIS 278 (Miss. 1946).

Where land is correctly described in notice of foreclosure sale but incorrectly described in trustee’s deed made pursuant thereto, the purchaser at the foreclosure sale is entitled to receive at any time a corrected deed from the trustee describing the land conveyed by the deed of trust, offered for sale under the notice, and struck off to the purchaser. Pruitt v. Dean, 198 Miss. 71, 21 So. 2d 300, 1945 Miss. LEXIS 169 (Miss. 1945); Pruitt v. Dean, 200 Miss. 167, 26 So. 2d 342, 1946 Miss. LEXIS 278 (Miss. 1946).

A bill to set aside foreclosures of deeds of trust, in which bill it was alleged that “The said trustee omitted and failed to advertise, sell or convey said West Half of Northwest Quarter of said Section 29, which was part of the security conveyed by said trust deed,” was secure against demurrer when supported by an exhibit disclosing that the description of the land in the trust deed and in the posted notice, which description was erroneous, differed from the correct description in the newspaper notice. Pruitt v. Dean, 198 Miss. 71, 21 So. 2d 300, 1945 Miss. LEXIS 169 (Miss. 1945); Pruitt v. Dean, 200 Miss. 167, 26 So. 2d 342, 1946 Miss. LEXIS 278 (Miss. 1946).

10. —Disclosure of name of mortgagor or his successor in title.

Published notice of sale was improper where name of one mortgagor of property did not appear in published notice; requirement that names of all mortgagors be published is strictly construed and omission of name of co-mortgagor invalidates sale. Haygood v. First Nat'l Bank, 517 So. 2d 553, 1987 Miss. LEXIS 2923 (Miss. 1987).

Defect in description of mortgagor guardian of minors in notice of sale under this section [Code 1942, § 888] could not be relied upon to invalidate sale of mortgaged premises, in view of statute (Laws, 1934, ch. 250) providing that all mortgagors of real estate located within the state, who might have the right to set aside any title to such real estate by reason of the neglect of any trustee to insert in any notice of sale of such real estate, the name of the mortgagor, should commence suit within 12 months from the passage of such act, and upon the failure of such mortgagor or other person to commence suit within such time, the right to bring suit and the remedy to enforce such right of action should be deemed thereafter to be completely extinguished. Barbour v. Williams, 196 Miss. 409, 17 So. 2d 604, 1944 Miss. LEXIS 207 (Miss. 1944).

The sale of mortgaged property under a notice setting out the mortgagor’s name as B. B. Blakeney, instead of B. Blakeney as the mortgagor signed it in the deed of trust, was void as not being a sufficient compliance with the statute, which requires the identity of the mortgagor to be disclosed by setting out his correct name, notwithstanding that a notice recited the name of the mortgagor’s wife who executed the mortgage with him, the date of the mortgage and the fact and place of recording, and a description of the land as set forth in the deed of trust. Blakeney v. Smith, 183 Miss. 151, 183 So. 920, 1938 Miss. LEXIS 227 (Miss. 1938).

Trustee’s deed held not void as to subsequent grantee because of failure to name such grantee in notice and advertisement of sale, where grantee did not assume mortgage debt and deed expressly excepted debt from warranty of the instrument. Melchor v. Casey, 173 Miss. 67, 161 So. 692, 1935 Miss. LEXIS 227 (Miss. 1935).

Statute requiring advertisement of foreclosure sale to name mortgagor whose property is advertised is in derogation of common law and must be strictly pursued. Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218, 151 So. 761, 1933 Miss. LEXIS 168 (Miss. 1933).

“Mortgagor” within statute requiring advertisement of foreclosure sale to name mortgagor includes remote grantee who assumed mortgage debt with mortgagee’s consent. Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218, 151 So. 761, 1933 Miss. LEXIS 168 (Miss. 1933).

Advertisement of foreclosure sale, which failed to name mortgagor in possession who was the last vendee through original mortgagor, rendered sale void, notwithstanding advertisement named original mortgagor. Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218, 151 So. 761, 1933 Miss. LEXIS 168 (Miss. 1933).

11. —Place of posting notice.

State supreme court held that Miss. Code Ann. §13-3-31 applied to Miss. Code Ann. §89-1-55, and reversed the denial of a summary judgment motion filed by bank and trustee as the city where the newspaper was published encompassed two different counties and thus, the newspaper was deemed to be published in both counties under Miss. Code Ann. §13-3-31(4) for purposes of the publication of foreclosure sale notices. Warren v. Johnston, 908 So. 2d 744, 2005 Miss. LEXIS 488 (Miss. 2005).

That proof of publication of notice of sale on foreclosure of a deed of trust was attached to the trustee’s deed does not necessarily imply that notice was not posted at the courthouse door, where the trustee’s deed, without reciting details, states that the notice required by law was given. Craft v. Everett, 237 Miss. 360, 115 So. 2d 133, 1959 Miss. LEXIS 479 (Miss. 1959).

Under this section [Code 1942, § 888), notice of sale under deed of trust must be posted at the courthouse door of the county where the land is situated. Clark v. Sayle, 208 Miss. 559, 45 So. 2d 138, 1950 Miss. LEXIS 274 (Miss. 1950).

Requirement of this section [Code 1942, § 888] that notice of sale be posted at the courthouse door is met by the posting of notice on face of stack of pasteboard cartons containing books, about half way down entrance hall of courthouse, in conspicuous place in corridor, not far from door space, where courthouse was being repaired, its doors were down for replacement, and bulletin board, which ordinarily stood nearby, was misplaced, and sheriff and others were using face of stack of cartons for posting of notices. Clark v. Sayle, 208 Miss. 559, 45 So. 2d 138, 1950 Miss. LEXIS 274 (Miss. 1950).

So long as the required notice is posted, there can be no objection to the trustee’s posting notices of sale in as many places in the county as he desires. Gulf Refining Co. v. Harrison, 201 Miss. 294, 30 So. 2d 44, 1947 Miss. LEXIS 397 (Miss. 1947).

Although the power of sale in a trust deed covering lands located in two counties provided that notice of foreclosure sale be given in one of the counties, such provision was prohibited by this section [Code 1942, § 888] which requires that the prescribed notice be given in every county wherein the land is located. Cook v. Taylor, 200 Miss. 381, 27 So. 2d 404, 1946 Miss. LEXIS 301 (Miss. 1946).

Notice must be posted at courthouse door of county where land situated both when sale is advertised in newspaper published in county and where advertised in newspaper having general circulation therein. Fauntleroy v. Mardis, 123 Miss. 353, 85 So. 96, 1920 Miss. LEXIS 32 (Miss. 1920).

12. —Effect of failure to post notice.

Where notice of foreclosure sale under a trust deed covering land in different counties was published and posted in only one county and all of the land was sold as an entire tract after offering it for sale in separate lots and parcels, the sale was void, not only as to the land located in the county wherein no notice was given, but in the entirety. Cook v. Taylor, 200 Miss. 381, 27 So. 2d 404, 1946 Miss. LEXIS 301 (Miss. 1946).

Foreclosure sale not advertised by posting at courthouse door is invalid. Fauntleroy v. Mardis, 123 Miss. 353, 85 So. 96, 1920 Miss. LEXIS 32 (Miss. 1920).

13. Time and place of sale.

Notice specifying that the sale would be made at the south door of the courthouse was sufficient in the absence of a south door where there was only a front door and a back door, one of these being a southeast door. Gulf Refining Co. v. Harrison, 201 Miss. 294, 30 So. 2d 44, 1947 Miss. LEXIS 397 (Miss. 1947).

Trustee’s sale under deed of trust and trustee’s deed given pursuant to sale held void, where notice of sale posted at courthouse door, as shown by affidavit of posting made part of deed, by mistake named a past date instead of future date as time of sale. Booker v. Federal Land Bank, 175 Miss. 281, 164 So. 877, 1936 Miss. LEXIS 1 (Miss. 1936).

Lapse of twenty-four days between last publication of trustee’s sale and date of sale held to render trustee’s deed void on its face. Smith v. Deas, 158 Miss. 111, 130 So. 105, 1930 Miss. LEXIS 25 (Miss. 1930).

Sale under deed of trust is void, more than a week elapsing between last publication and day of sale. Crump v. Tucker, 149 Miss. 711, 115 So. 397, 1928 Miss. LEXIS 29 (Miss. 1928).

Sale on day following last day of three weeks’ publication authorized; notice may be published a fourth time and sale made within one week thereafter. Maris v. Lindsey, 124 Miss. 742, 87 So. 12, 1920 Miss. LEXIS 544 (Miss. 1920).

Trustee may fix time and place of sale, provided sufficient notice is given and sale is held within hours designated by statute. Davis v. O'Connell, 92 Miss. 348, 47 So. 672, 1908 Miss. LEXIS 258 (Miss. 1908).

Erroneous date at bottom of trustee’s notice of sale which properly gives time, terms and place of sale and otherwise complies with trust deed and the law, does not invalidate sale. Weyburn v. Watkins, 90 Miss. 728, 44 So. 145, 1907 Miss. LEXIS 111 (Miss. 1907).

14. Cure of error by lapse of time.

Clause herein providing that an error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten-year statute of adverse possession, does not create a limitation and the legislature is competent to insert it, modify it or repeal it. Barbour v. Williams, 196 Miss. 409, 17 So. 2d 604, 1944 Miss. LEXIS 207 (Miss. 1944).

Statute (Laws, 1934, ch. 250) providing that all mortgagors of real estate located within the state who might have the right to set aside any title to such real estate by reason of the neglect of any trustee to insert it in a notice of sale of such real estate, the name of said mortgagor, should commence suit within 12 months from the passage of such act, and upon the failure of such mortgagor or other person to commence suit within such time, the right to bring such suit, and the remedy to enforce such right of action should be deemed thereafter to be completely extinguished, if applied so as to restrict the application of the general ten-year statute of adverse possession, was not invalid as being an impairment of contract or as class or private legislation, since the right to sue is distinct from the right sought to be enforced and is remedial in character. Barbour v. Williams, 196 Miss. 409, 17 So. 2d 604, 1944 Miss. LEXIS 207 (Miss. 1944).

The statute of limitations will cure an error in the mode of sale. Bradley v. Villere, 66 Miss. 399, 6 So. 208, 1889 Miss. LEXIS 114 (Miss. 1889).

15. Miscellaneous.

The failure to appoint an independent trustee for a deed of trust would not invalidate the foreclosure sale of the real property. Wansley v. First Nat'l Bank, 566 So. 2d 1218, 1990 Miss. LEXIS 452 (Miss. 1990).

Debtor was divested of all legal and equitable title in foreclosed property at conclusion of foreclosure sale, and therefore could not avoid sale on ground that Chapter 13 petition was filed before foreclosure deed was delivered to successful bidder at sale or recorded. In re Applewhite, 106 B.R. 468, 1989 Bankr. LEXIS 1908 (Bankr. S.D. Miss. 1989).

Mortgagee seeking deficiency judgment has burden of proving entitlement under principles of equity; it must first be determined if mortgagee has endeavored to collect indebtedness out of land; then, it must be determined whether value of property satisfies debt of mortgagor or creates surplus. Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461, 1985 Miss. LEXIS 2177 (Miss. 1985).

The abandonment of property by a corporate mortgagor, its failure to contest occupancy of the property by the purchaser at a trustee’s foreclosure sale, and its permitting the purchaser to make improvements on the land without making known its claim, estopped the mortgagor from asserting its claim to the property as against the purchaser and the mortgagee of the purchaser. Rivervalley Co. v. Deposit Guaranty Nat'l Bank, 331 F. Supp. 698, 1971 U.S. Dist. LEXIS 12606 (N.D. Miss. 1971).

A sale under a deed of trust which describes the property as being in township 1, where the county contains a township 1 south and a township 1 north, but no township 1 (the notice of sale similarly describing it) is void. Seal v. Anderson, 235 Miss. 249, 108 So. 2d 864, 1959 Miss. LEXIS 422 (Miss. 1959).

In suit attacking validity of foreclosure sale under deed of trust, burden of proof is on complainant to show invalidity. Clark v. Sayle, 208 Miss. 559, 45 So. 2d 138, 1950 Miss. LEXIS 274 (Miss. 1950).

Undated note secured by deed of trust is not so ambiguous as to require its reformation or foreclosure by proceeding in chancery when note provides that principal is payable in ten equal successive annual installments, the last of which shall fall due on November 1, 1947, as it is plainly apparent from this language that first installment of principal was due November 1, 1938. Triplett v. Bridgforth, 205 Miss. 328, 38 So. 2d 756, 1949 Miss. LEXIS 434 (Miss. 1949).

The fact that a mortgagee may be a director or officer of the corporate mortgagor does not void purchase of the property by him at a foreclosure sale not brought about by his procurement, particularly when he purchases to protect a valid interest previously acquired. Harris v. Bailey Ave. Park, Inc., 202 Miss. 776, 32 So. 2d 689, 1947 Miss. LEXIS 340 (Miss. 1947).

Eleven acres described in a deed of trust as being located on the east side of the SW 1/4 of NW 1/4 was indefinite when offered for sale as “11 acres in the SW 1/4 of the NW 1/4 ,” but, since the entire SW 1/4 of the NW 1/4 was later offered for sale, title vested in the purchaser to eleven of the forty acres, the precise eleven acres to be determined between the purchaser and the owner of the remainder of the forty acres, an attorney who conducted the sale. Gulf Refining Co. v. Harrison, 201 Miss. 294, 30 So. 2d 44, 1947 Miss. LEXIS 397 (Miss. 1947).

Interim payments of reasonable income or rental value of property are essential condition to injunction under moratorium statutes to stay foreclosure sale. Commodore Corp. v. Davis, 178 Miss. 376, 172 So. 867, 1937 Miss. LEXIS 203 (Miss. 1937).

Upon tendering amount due and all expenses of attempted foreclosure which was refused, and again tendered with their bill for injunction, and again refused, mortgagors were entitled to injunction against foreclosure sale. Hembree v. Johnson, 119 Miss. 204, 80 So. 554, 1918 Miss. LEXIS 26 (Miss. 1918).

Under bill by purchaser at void sale, for resale of land, in which husband of deceased mortgagor joined, all heirs acquired right and it was error to permit dismissal in vacation. Northern v. Scruggs, 118 Miss. 353, 79 So. 227, 1918 Miss. LEXIS 87 (Miss. 1918).

Provision in trust deed making default in payment of one note causing whole debt to become due and collectible at option of creditor, is valid and not a penalty. Caldwell v. Kimbrough, 91 Miss. 877, 45 So. 7, 1907 Miss. LEXIS 167 (Miss. 1907).

Such provision not waived by mortgagee failing to act at once on request of debtor. Caldwell v. Kimbrough, 91 Miss. 877, 45 So. 7, 1907 Miss. LEXIS 167 (Miss. 1907).

RESEARCH REFERENCES

ALR.

Necessity and sufficiency of notice of sale to mortgagor where a chattel mortgage is sought to be foreclosed without judicial proceedings by sale under power. 30 A.L.R.2d 539.

Validity, construction, and application of provisions entitling mortgagee to increase interest rate on transfer of mortgaged property. 92 A.L.R.3d 822.

Necessity of Production of Original Note Involved in Mortgage Foreclosure – Twenty-First Century Cases. 86 A.L.R.6th 411.

Am. Jur.

55 Am. Jur. 2d, Mortgages §§ 578 et seq.

18 Am. Jur. Pl & Pr Forms (Rev) Mortgages, Form 153.1 (complaint, petition, or declaration-to foreclose mortgage-another form).

CJS.

59 C.J.S., Mortgages §§ 932 et seq.

Law Reviews.

Abbott, Some basic priority problems in a land development project in Mississippi with emphasis upon power of sale foreclosure procedures. 50 Miss. L. J. 665, September 1979.

Cross References —

Suspension of mortgage foreclosure after declared disaster or emergency, see §§89-1-303 et seq.

JUDICIAL DECISIONS

1. In general.

2. Notice.

1. In general.

A deed of trust which provides that in case of default the trustee shall take possession without notice, and, after duly advertising, sell for cash, at public auction at the courthouse door, a sufficiency of the property to make payment, is not silent as to the place and terms of sale and mode of advertising within the meaning of Code 1942, § 891. Gardner v. State, 235 Miss. 119, 108 So. 2d 592, 1959 Miss. LEXIS 410 (Miss. 1959).

This section [Code 1942, § 891] applies only where trust deed does not specify manner of sale. Lynchburg Shoe Co. v. Castleman, 116 Miss. 188, 76 So. 878, 1917 Miss. LEXIS 306 (Miss. 1917).

Under trust deed designating place of sale outside of county, sale was properly made at place designated by this section [Code 1942, § 891]. Polk v. S. S. Dale & Sons, 93 Miss. 664, 47 So. 386, 1908 Miss. LEXIS 130 (Miss. 1908).

Deed of trust held to adopt this section [Code 1942, § 891] as to notice and manner of sale. Melsheimer v. McKnight, 92 Miss. 386, 46 So. 827, 1908 Miss. LEXIS 250 (Miss. 1908).

A trust deed providing for sale for cash at public auction at Jackson, or any suitable place, is not silent within the meaning of this section [Code 1942, § 891]. Williams v. Dreyfus, 79 Miss. 245, 30 So. 633, 1901 Miss. LEXIS 41 (Miss. 1901).

This section [Code 1942, § 891] does not apply where the trustee is vested with discretion to fix the place. Goodman v. Durant Bldg. & Loan Ass'n, 71 Miss. 310, 14 So. 146, 1893 Miss. LEXIS 74 (Miss. 1893).

2. Notice.

Notice of a foreclosure sale was not invalid for incorrectly describing the door of the courthouse where the sale would take place since a potential bidder would have been able to find the sale from the advertised description. Palmer v. Hope Enters. (In re Palmer), — B.R. —, 2017 Bankr. LEXIS 1481 (Bankr. S.D. Miss. May 30, 2017).

Under §§89-1-55,89-1-57, and89-1-59, a bank did all that it was required to do when it sent two letters to the debtor stating that it would be forced to foreclose unless it could get a subordination from the holder of a note and deed of trust; no further notice was required in the absence of any such requirement in the agreement between the bank and the debtor. EB, Inc. v. Allen, 722 So. 2d 555, 1998 Miss. LEXIS 506 (Miss. 1998).

Trustee may fix time and place of sale provided sufficient notice is given and sale held between hours designated by statute. Davis v. O'Connell, 92 Miss. 348, 47 So. 672, 1908 Miss. LEXIS 258 (Miss. 1908).

RESEARCH REFERENCES

ALR.

Necessity and sufficiency of notice of sale to mortgagor where chattel mortgage is sought to be foreclosed without judicial proceedings by sale under power. 30 A.L.R.2d 539.

Validity, construction, and application of provisions entitling mortgagee to increase interest rate on transfer of mortgaged property. 92 A.L.R.3d 822.

Am. Jur.

46 Am. Jur. Proof of Facts 2d 695, Intent of Parties to Ambiguous Deed.

Law Reviews.

Abbott, Some basic priority problems in a land development project in Mississippi with emphasis upon power of sale foreclosure procedures. 50 Miss. L. J. 665, September 1979.

Cross References —

Limitations on actions on instalment notes after foreclosure of mortgage, see §15-1-23.

Construction of term providing option to accelerate at will, see §75-1-309.

Reinstatement of foreclosures by savings associations, see §81-12-169.

JUDICIAL DECISIONS

1. In general.

2. Notice.

3. Standing.

4. Evidence.

5. Caveat emptor.

1. In general.

Bankruptcy courts have recognized that there are essential differences between a contractual mortgage reinstatement and the statutory cure right afforded by 11 U.S.C.S. § 1322(b)(5) of the Bankruptcy Code; regardless, it was undisputed that debtor never cured the default that precipitated acceleration of the Note and, therefore, never had the statutory right to reinstate the Note. Seaberry v. Cenlar FSB (In re Seaberry), — B.R. —, 2019 Bankr. LEXIS 1189 (Bankr. S.D. Miss. Apr. 12, 2019).

Mortgagee’s refusal to accept payment after time provided for in work-out agreement, but before foreclosure proceedings were instituted, constituted misconduct such as warranted denial of mortgagee’s request for attorney fees. In re McIntyre, 96 B.R. 65, 1988 Bankr. LEXIS 2313 (Bankr. S.D. Miss. 1988).

The holder of a secondary deed of trust has no right to notice of foreclosure, or statutory right of redemption, but may only assert an interest prior to foreclosure by paying the amounts due and subsequently engaging in foreclosure for nonpayment of his secondary deed of trust. Crystal v. Duffy, 493 So. 2d 942, 1986 Miss. LEXIS 2574 (Miss. 1986).

Debtor’s right to redemption of personal property subject to security interest is governed by Uniform Commercial Code (§75-9-506), not by §89-1-59, which applies only to secured installment transactions which are not covered by Code. Dungan v. Dick Moore, Inc., 463 So. 2d 1094, 1985 Miss. LEXIS 1898 (Miss. 1985).

A contract for the purchase and sale of certain real estate was properly cancelled pursuant to findings that defendant purchasers were in arrears in the monthly installments as well as in taxes and insurance premiums, where purchasers did not take advantage of the statutory procedure for reinstatement of accelerated debts. Stabiler v. Webb, 375 So. 2d 980, 1979 Miss. LEXIS 2376 (Miss. 1979).

This section [Code 1942, § 892] gave the purchaser of an automobile under a conditional sales contract the right to reinstate the instalments under the sales contract as written upon payment of the past-due instalments, even if the entire indebtedness had been accelerated or attempted to be accelerated by the then holder of the contract, at any time before a sale of the automobile which had been repossessed when the purchaser defaulted in making payment of instalments. Dearman v. Williams, 235 Miss. 360, 109 So. 2d 316, 1959 Miss. LEXIS 436 (Miss. 1959).

2. Notice.

Under §§89-1-55,89-1-57, and89-1-59, a bank did all that it was required to do when it sent two letters to the debtor stating that it would be forced to foreclose unless it could get a subordination from the holder of a note and deed of trust; no further notice was required in the absence of any such requirement in the agreement between the bank and the debtor. EB, Inc. v. Allen, 722 So. 2d 555, 1998 Miss. LEXIS 506 (Miss. 1998).

3. Standing.

In a case in which plaintiff alleged that defendants failed and refused to tender to plaintiff a trustee’s deed to the subject property and further failed and refused to deliver possession of the subject property to plaintiff, plaintiff had standing to challenge the debtor’s alleged failure to cure the default under Miss. Code Ann. §89-1-59. Hobson v. Chase Home Fin., LLC, 179 So.3d 1026, 2015 Miss. LEXIS 584 (Miss. 2015).

4. Evidence.

In a case in which plaintiff alleged that defendants failed and refused to tender to plaintiff a trustee’s deed to the subject property and further failed and refused to deliver possession of the subject property to plaintiff, summary judgment was rightly granted in favor of defendants because sufficient evidence was presented to the circuit court that defendants had complied with the statutory requirements under Miss. Code Ann. §89-1-59 in reinstating the delinquent debtor’s loan. Hobson v. Chase Home Fin., LLC, 179 So.3d 1026, 2015 Miss. LEXIS 584 (Miss. 2015).

5. Caveat emptor.

In a case in which plaintiff alleged that defendants failed and refused to tender to plaintiff a trustee’s deed to the subject property and further failed and refused to deliver possession of the subject property to plaintiff, the doctrine of caveat emptor barred plaintiff’s claims. Hobson v. Chase Home Fin., LLC, 179 So.3d 1026, 2015 Miss. LEXIS 584 (Miss. 2015).

RESEARCH REFERENCES

ALR.

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust. 69 A.L.R.3d 774.

What transfers justify acceleration under “due-on-sale” clause of real estate mortgage. 22 A.L.R.4th 1266.

Sufficiency of tender of payment to effect defaulting vendee’s redemption of rights in land purchased. 37 A.L.R.4th 286.

Right of debtor to “de-acceleration” of residential mortgage indebtedness under Chapter 13 of Bankruptcy Code of 1978 (11 USCS § 1322(b)). 67 A.L.R. Fed. 217.

Cross References —

Form of conveyance at tax sale, see §27-45-23.

JUDICIAL DECISIONS

1. In general.

2. Reservation of rights.

1. In general.

A deed which is defectively acknowledged by reason of the fact that word “delivered” was omitted from acknowledgment is good as between the parties. Kelly v. Wilson, 204 Miss. 56, 36 So. 2d 817, 1948 Miss. LEXIS 342 (Miss. 1948).

An instrument in the form of a deed which provided that the grantors were to retain possession, control and occupancy of the lands during their lifetime and then vest in the purported grantee, “but not until the death of both grantors herein, does the title pass,” was testamentary in character and did not meet the requirement of a deed that it must convey some estate effective upon delivery. Coulter v. Carter, 200 Miss. 135, 26 So. 2d 344, 1946 Miss. LEXIS 274 (Miss. 1946).

Instrument conveying in praesenti a remainder held a deed and not a will. Johnson v. Seely, 139 Miss. 60, 103 So. 499, 1925 Miss. LEXIS 111 (Miss. 1925).

If conveyance is sufficiently certain, additional description failing as to accuracy should be rejected as surplusage; on contradiction in description of premises conveyed, mistaken part should be rejected and other allowed to stand. Ladnier v. Cuevas, 138 Miss. 502, 103 So. 217, 1925 Miss. LEXIS 63 (Miss. 1925).

Debtor’s suit to reform deed to third party by creditor, to whom debtor had conveyed land by deed intended as mortgage, held not barred by limitation, right of action not accruing until execution of deed to third party. Allison v. Burnham, 136 Miss. 13, 100 So. 518, 1924 Miss. LEXIS 101 (Miss. 1924).

That absolute deed was intended as mortgage may be shown by parol. Allison v. Burnham, 136 Miss. 13, 100 So. 518, 1924 Miss. LEXIS 101 (Miss. 1924).

Covenant held to be for grantor’s benefit, so that grantee would not be permitted to make default and to tender back the land and receive payment. Kent v. Stevenson, 127 Miss. 529, 90 So. 241, 1921 Miss. LEXIS 255 (Miss. 1921).

Condition subsequent strictly construed. Kent v. Stevenson, 127 Miss. 529, 90 So. 241, 1921 Miss. LEXIS 255 (Miss. 1921).

Deed accompanied by written agreement on part of grantee to convey to third party on payment of sum of money, third party then being in and remaining in possession, may be shown to be a mortgage. Williams v. Butts, 124 Miss. 661, 87 So. 145, 1920 Miss. LEXIS 553 (Miss. 1920).

Deed conveying 175 acres more or less, by metes and bounds, does not convey 300 acres of accretions attached to original tract before conveyance. Houston Bros. v. Grant, 112 Miss. 465, 73 So. 284, 1916 Miss. LEXIS 130 (Miss. 1916).

Instrument in form of deed “to take effect only after death of the grantor” was testamentary in character and not a deed. Simpson v. McGee, 112 Miss. 344, 73 So. 55, 1916 Miss. LEXIS 117 (Miss. 1916).

Under this section [Code 1942, § 852] the word “warrant” constitutes a warranty of the possession as well as of the title. Allen v. Caffee, 85 Miss. 766, 38 So. 186, 1904 Miss. LEXIS 191 (Miss. 1904).

The words “convey and warrant” are effective “to transfer all the right, title, claim and possession” of the grantor only when an intention to convey a less estate is not expressed in the deed. Hart v. Gardner, 74 Miss. 153, 20 So. 877, 1896 Miss. LEXIS 128 (Miss. 1896).

2. Reservation of rights.

Where a conveyance of land contains a reservation to the grantor of “all minerals,” both liquid and solid, that phrase will not be deemed to include sand and gravel in the absence of a specific designation of sand and gravel as being intended to be reserved. Witherspoon v. Campbell, 219 Miss. 640, 69 So. 2d 384, 1954 Miss. LEXIS 373 (Miss. 1954).

Owner of mineral may remove it from land, though other person owns surface but must allow sufficient land to remain to support surface. Moss v. Jourdan, 129 Miss. 598, 92 So. 689, 1922 Miss. LEXIS 76 (Miss. 1922), overruled, Witherspoon v. Campbell, 219 Miss. 640, 69 So. 2d 384, 1954 Miss. LEXIS 373 (Miss. 1954).

Owner of minerals not enjoined from removing it at instance of owner of surface unless injury to surface is irreparable. Moss v. Jourdan, 129 Miss. 598, 92 So. 689, 1922 Miss. LEXIS 76 (Miss. 1922), overruled, Witherspoon v. Campbell, 219 Miss. 640, 69 So. 2d 384, 1954 Miss. LEXIS 373 (Miss. 1954).

Under deed reserving timber with right-of-way for removing it, and providing for removal within 12 months, grantor conveyed land with timber absolutely subject to his right to remove timber within 12 months or same would pass to grantee. Hand v. Fillingame, 92 Miss. 185, 45 So. 569, 1907 Miss. LEXIS 16 (Miss. 1907).

RESEARCH REFERENCES

ALR.

Written matter as controlling printed matter in construction of deed. 37 A.L.R.2d 820.

Specificity of description of premises as affecting enforceability of contract to convey real property-modern cases. 73 A.L.R.4th 135.

Am. Jur.

7 Am. Jur. Legal Forms 2d, Deeds §§ 87:125 et seq. (Mississippi-statutory warranty deed, statutory special warranty deed, quitclaim deed).

38 Am. Jur. Proof of Facts 2d 633, Dedication of Land to Public Use.

Amendment Notes —

The 2007 amendment added (3).

JUDICIAL DECISIONS

1. In general.

Because a second mortgagee lawfully foreclosed the mortgagor’s property under Miss. Code Ann. §89-1-55 and paid off a primary loan and there was no legal prohibition under Miss. Code Ann. §§11-5-101 and89-1-63 for the mortgagee’s affiliate to purchase the property at foreclosure, any rights of the mortgagor in the property were extinguished by the foreclosure sale. Pepper v. Homesales, Inc., 2009 U.S. Dist. LEXIS 16692 (S.D. Miss. Mar. 3, 2009).

Miss. Code Ann. §89-1-63 contains no requirement that the person named as trustee give consent or otherwise have any knowledge of being appointed; the fact that the person did not know that he was the designated trustee was not a sufficient reason to invalidate the deed of trust. Chism v. Southern Mortg. Co. (In re Chism), 2007 Bankr. LEXIS 1365 (Bankr. N.D. Miss. Apr. 24, 2007).

RESEARCH REFERENCES

Am. Jur.

55 Am. Jur. 2d, Mortgages §§ 66 et seq.

13 Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:453 (foreclosure by action-mortgagee’s purchase of property on foreclosure); §§ 179:454 et seq. (power of sale).

CJS.

59 C.J.S., Mortgages §§ 146 et seq.

Cross References —

Operation of chancery court decree as conveyance, see §§11-5-85 et seq.

Conveyance of land sold under execution, see §§13-3-187,13-3-189.

Sheriff’s conveyances generally, see §89-1-27.

Indexing of sheriff’s conveyance, see §89-5-35.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Judicial Sales §§ 1 et seq.

Cross References —

Indexing of conveyances by persons acting in an official or representative character, see §89-5-35.

Sale of land and deeds of conveyance by executors and administrators, see §§91-7-221,91-7-223.

Sale or compromise of claims by executors or administrators, see §91-7-229.

Sale of real estate by guardian for maintenance and education of ward, see §93-13-35.

Improvements by guardian of ward’s land, or conversion by ward of land into money, see §93-13-45.

Extension or renewal of encumbrances on estate by guardian, see §93-13-47.

Sale of land by guardian for interest of ward, see §93-13-51.

JUDICIAL DECISIONS

1. In general.

As a general rule, in this state a power in a will to sell real estate will not be construed as a power to mortgage. Stokes v. Payne, Kennedy & Co., 58 Miss. 614, 1881 Miss. LEXIS 9 (Miss. 1881).

It is always a question of intention whether or not an instrument be an execution of a power. Yates v. Clark, 56 Miss. 212, 1878 Miss. LEXIS 61 (Miss. 1878).

Amendment Notes —

The 2011 amendment deleted “residential” preceding “subdivision” in (1)(a) and (b); and deleted “residential” preceding “real property” three times in (2).

The 2019 amendment, in (3), added “and the right to collect a fee...land filed in the public land records” at the end of (a), and inserted “if the entity has a right...land filed in the public land records” in (b).

Federal Aspects—

Section 501(c)(3) of the Internal Revenue Code is codified as 26 USCS § 501(c)(3).

Cross References —

Emergency management law, see §§33-15-1 et seq.

Sale of land under mortgage or deed of trust, see §§89-1-55,89-1-57.

JUDICIAL DECISIONS

3. Chancery court.

Creditor was not obligated to bring a foreclosure proceeding in the chancery court because the foreclosure took place four months before Hurricane Katrina and six months before the protections of the Relief from Inequitable Mortgage Foreclosures, Execution Sales, and the Like after Declared Emergency or Disaster Act, Miss. Code Ann. §§89-1-301 through89-1-329 were invoked. Gandy v. Citicorp, 985 So. 2d 371, 2008 Miss. App. LEXIS 360 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

ALR.

Recognition of Action for Damages for Wrongful Foreclosure — Types of Actions. 82 A.L.R.6th 43.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Validity, Construction, and Application of State Debt Adjusting Statutes. 90 A.L.R.6th 1.

Am. Jur.

13 Am. Jur. Legal Forms 2d, Mortgages § 179:457.1.

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Am. Jur.

13 Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:282 (waiver of valuation and appraisement of borrower under trust deed).

Cross References —

Sale of land under mortgage or deed of trust, see §§89-1-55,89-1-57.

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Am. Jur.

13 Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds §§ 179:262, 179:263 (default provisions; remedies on default); §§ 179:400, 179:400.1 (covenant against waste).

28 Am. Jur. Trials 229, Slander of Title by Improper Recording of Notice of Default.

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

Cross References —

Sale of land under mortgage or deed of trust, see §§89-1-55,89-1-57.

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

RESEARCH REFERENCES

ALR.

Mortgage foreclosure forbearance statutes-modern status. 83 A.L.R.4th 243.

RESEARCH REFERENCES

ALR.

Validity and construction of provision of mortgage or other real-estate financing contract prohibiting prepayment for a fixed period of time. 81 A.L.R.4th 423.

Cross References —

Constitutional direction for sale of lands under decree of court, see MS Const Art. 4, § 111.

Sale of realty by court decree, see §11-5-93.

Procedure for making sales under execution, see §§13-3-161 et seq.

Limitation of actions for property sold by order of court, see §15-1-37.

Conveyances for lands sold under decree of court, see §89-1-27.

Procedure for selling lands under mortgages and deeds of trust, see §89-1-55.

Amendment Notes —

The 1997 amendment added “on which a dwelling unit is located” in subsection (1) and added paragraph (h) under subsection (2).

The 2005 amendment added (2)(i).

JUDICIAL DECISIONS

1. Illustrative cases.

While Mississippi requires a disclosure statement to accompany the sale of a domicile or house, transfers of real property on which no dwelling is located do not require disclosure statements to be provided to the buyer. Stribling Invs., LLC v. Mike Rozier Constr. Co., 189 So.3d 1216, 2016 Miss. LEXIS 19 (Miss. 2016).

Where the home seller had submitted two disclosure statements before his death, the first one with a listing agency in which the seller admitted that his home had been treated for termite damages, and the second one with the realtor in which the seller denied that his home had been treated for prior termite damage, summary judgment in favor of a realtor was proper as the home buyers failed to show that the realty possessed any prior knowledge of any problems with the seller’s memory or his home which would have triggered a duty to investigate the credibility of the seller’s denial of prior termite damage in his disclosure statement. Varnado v. Alfonso Realty, Inc., 16 So.3d 746, 2009 Miss. App. LEXIS 492 (Miss. Ct. App. 2009).

Summary judgment was appropriate against an action brought by the buyers of a home for failure to make the statutory disclosures required under Miss. Code Ann. §§89-1-501 to 523, fraud and related claims where the home was 30 years old, had obvious structural problems, the buyers were made aware of the existence of subterranean termite damage, and a contract addendum indicated that the home was being sold “as is”. Laird v. ERA Bayshore Realty, 841 So. 2d 178, 2003 Miss. App. LEXIS 231 (Miss. Ct. App. 2003).

RESEARCH REFERENCES

ALR.

Real-estate broker’s power to bind principal by representations as to character, condition, location, quantity, or title of property. 58 A.L.R.2d 10.

Broker’s liability for damages or losses sustained by vendor of real property to vendee because of broker’s misrepresentations. 61 A.L.R.2d 1237.

Liability of vendor of structure for failure to disclose that it was built on filled ground. 80 A.L.R.2d 1453.

Duty of vendor of real estate to give purchaser information as to termite infestation. 22 A.L.R.3d 972.

Vendor and purchaser: mutual mistake as to physical condition of realty as ground for rescission. 50 A.L.R.3d 1188.

Real estate broker’s liability for misrepresentation as to income from or productivity of property. 81 A.L.R.3d 717.

Fraud predicated on vendor’s misrepresentation or concealment of danger or possibility of flooding or other unfavorable water conditions. 90 A.L.R.3d 568.

Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability. 12 A.L.R.4th 866.

Liability of vendor of existing structure for property damage sustained by purchaser after transfer. 18 A.L.R.4th 1168.

Recovery of punitive damages in action by purchasers of real property charging fraud or misrepresentation. 19 A.L.R.4th 801.

Remedies for fraud or misrepresentation as to heating or cooling cost of realty purchased. 32 A.L.R.4th 828.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

37 Am. Jur. 2d, Fraud and Deceit §§ 169, 218.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

24 Am. Jur. Pl & Pr Forms (Rev), Vendor and Purchaser, Forms 59, 113 et seq. (complaint, petition or declaration-for rescission or for damages for fraud-nondisclosure or particular misrepresentations as to condition of realty).

15C Am. Jur. Legal Forms 2d, Real Estate Sales , Forms 1 et seq.

12 Am. Jur. Proof of Facts 2d 103, Vendor’s Failure to Warn Purchaser of Dangerous Location of Property.

16 Am. Jur. Proof of Facts 2d 719, Real Estate Broker’s Misrepresentation of Condition or Value of Realty.

38 Am. Jur. Proof of Facts 2d 91, Fraudulent Misrepresentation as to Use to Which Real Property Could Be Put.

CJS.

12 C.J.S., Brokers §§ 165, 166.

92 C.J.S., Vendor and Purchaser §§ 106-110.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in this section as amended by Laws of 2002, ch. 512, § 17. The words “this act” in the next to last paragraph were changed to “Sections 89-1-501 through 89-1-523.” The Joint Committee ratified the correction at its May 16, 2002, meeting.

Amendment Notes —

The 2002 amendment inserted “property condition disclosure” preceding “statement required by” in the introductory language.

Cross References —

Amendment of any disclosure made pursuant to §§89-1-501 through89-1-523 must follow provisions of this section, see §89-1-515.

RESEARCH REFERENCES

ALR.

Broker’s liability for damages or losses sustained by vendor of real property to vendee because of broker’s misrepresentations. 61 A.L.R.2d 1237.

Liability of vendor of structure for failure to disclose that it was built on filled ground. 80 A.L.R.2d 1453.

Duty of vendor of real estate to give purchaser information as to termite infestation. 22 A.L.R.3d 972.

Fraud predicated on vendor’s misrepresentation or concealment of danger or possibility of flooding or other unfavorable water conditions. 90 A.L.R.3d 568.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

Real-estate broker’s power to bind principal by representations as to character, condition, location, quantity, or title of property. 58 A.L.R.2d 10.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

24 Am. Jur. Pl & Pr Forms (Rev), Vendor and Purchaser, Forms 59, 113 et seq. (complaint, petition or declaration-for rescission or for damages for fraud-nondisclosure or particular misrepresentations as to condition of realty).

16 Am. Jur. Proof of Facts 2d 719, Real Estate Broker’s Misrepresentation of Condition or Value of Realty.

CJS.

12 C.J.S., Brokers §§ 165, 166.

92 C.J.S., Vendor and Purchaser §§ 106-110.

JUDICIAL DECISIONS

1.-2. [Reserved for future use.]

3. Dismissal proper.

1.-2. [Reserved for future use.]

3. Dismissal proper.

Summary judgment and dismissal of the home buyers’ suit against the home sellers (in which they contended the sellers intentionally misrepresented the condition of the property) was proper as the buyers offered no evidence that the sellers intentionally misrepresented the condition of their property, or that the sellers had any personal knowledge of the conditions discovered by the buyers subsequent to their purchase. Additionally, the buyers hired their own licensed inspector prior to the closing of sale, and pursuant to his recommendations, the buyers were apparently satisfied enough with the conditions of the property to follow through with the contract and purchase the property. Williams v. Estate of Morrison, 969 So. 2d 132, 2007 Miss. App. LEXIS 734 (Miss. Ct. App. 2007).

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

CJS.

12 C.J.S., Brokers §§ 165, 166.

92 C.J.S., Vendor and Purchaser §§ 106-110.

RESEARCH REFERENCES

ALR.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

CJS.

12 C.J.S., Brokers § 165, 166.

92 C.J.S., Vendor and Purchaser §§ 106-110.

Editor’s Notes —

Laws, 1999, ch. 588, § 7 effective from and after January 1, 2000, contained a repealer for §§73-35-18,73-35-19 and89-1-509, effective July 1, 2003. The repealer was deleted from Laws 1999, ch. 588, § 7 by the amendments of Laws 2002, ch. 512, § 19.

Amendment Notes —

The 1997 amendment added clarifying language to the table in this section.

The 1999 amendment, effective January 1, 2000, rewrote the section.

Cross References —

Mississippi Real Estate Commission, see §73-35-5.

Information provided avowedly in fulfillment of this section as relieving expert of responsibility with respect to any information other than that set forth, see §89-1-505.

RESEARCH REFERENCES

ALR.

Vendor’s obligation to disclose to purchaser of land presence of contamination from hazardous substances or wastes. 12 A.L.R.5th 630.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

CJS.

12 C.J.S., Brokers §§ 165, 166.

92 C.J.S., Vendor and Purchaser §§ 106-110.

RESEARCH REFERENCES

ALR.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

CJS.

12 C.J.S., Brokers §§ 165, 166.

92 C.J.S., Vendor and Purchaser §§ 106-110.

RESEARCH REFERENCES

ALR.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

CJS.

12 C.J.S., Brokers §§ 165, 166.

92 C.J.S., Vendor and Purchaser §§ 106-110.

RESEARCH REFERENCES

ALR.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

CJS.

12 C.J.S., Brokers §§ 165, 166.

92 C.J.S., Vendor and Purchaser §§ 106-110.

RESEARCH REFERENCES

ALR.

Real-estate broker’s power to bind principal by representations as to character, condition, location, quantity, or title of property. 58 A.L.R.2d 10.

Broker’s liability for damages or losses sustained by vendor of real property to vendee because of broker’s misrepresentations. 61 A.L.R.2d 1237.

Real estate broker’s liability for misrepresentation as to income from or productivity of property. 81 A.L.R.3d 717.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

16 Am. Jur. Proof of Facts 2d 719, Real Estate Broker’s Misrepresentation of Condition or Value of Realty.

CJS.

12 C.J.S., Brokers §§ 165, 166.

JUDICIAL DECISIONS

1. Failure to deliver.

Finding against three real estate agents in the buyer’s complaint alleging improper conduct was appropriate because the agents were unable to explain why their files had not been maintained as required by the Mississippi Real Estate Commission’s regulations. Further, there was no evidence that the statement was delivered to the buyer as required by Mississippi Code Annotated section 89-1-521(l). Palmer v. Miss. Real Estate Comm'n, 14 So.3d 67, 2008 Miss. App. LEXIS 785 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

ALR.

Real-estate broker’s power to bind principal by representations as to character, condition, location, quantity, or title of property. 58 A.L.R.2d 10.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Broker’s liability for damages or losses sustained by vendor of real property to vendee because of broker’s misrepresentations. 61 A.L.R.2d 1237.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

Am. Jur.

12 Am. Jur. 2d, Brokers §§ 88, 89, 92.

16 Am. Jur. Proof of Facts 2d 719, Real Estate Broker’s Misrepresentation of Condition or Value of Realty.

CJS.

12 C.J.S., Brokers §§ 165, 166.

JUDICIAL DECISIONS

1. In general.

This section does not change the construction of an “as is” clause to mean “as disclosed.” Crase v. Hahn, 754 So. 2d 471, 1999 Miss. App. LEXIS 465 (Miss. Ct. App. 1999).

RESEARCH REFERENCES

ALR.

Broker’s liability for damages or losses sustained by vendor of real property to vendee because of broker’s misrepresentations. 61 A.L.R.2d 1237.

Liability of vendor of structure for failure to disclose that it was built on filled ground. 80 A.L.R.2d 1453.

Fraud predicated on vendor’s misrepresentation or concealment of danger or possibility of flooding or other unfavorable water conditions. 90 A.L.R.3d 568.

Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability. 12 A.L.R.4th 866.

Liability of vendor of existing structure for property damage sustained by purchaser after transfer. 18 A.L.R.4th 1168.

Recovery of punitive damages in action by purchasers of real property charging fraud or misrepresentation. 19 A.L.R.4th 801.

Remedies for fraud or misrepresentation as to heating or cooling cost of realty purchased. 32 A.L.R.4th 828.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

Real estate broker’s liability for misrepresentation as to income from or productivity of property. 81 A.L.R.3d 717.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Am. Jur.

77 Am. Jur. 2d, Vendor and Purchaser §§ 278 et seq.

CJS.

92 C.J.S., Vendor and Purchaser §§ 106-110.

Cross References —

Real Estate Broker License Law of 1954, see §§73-35-1 et seq.

Creation of Mississippi Real Estate Commission, see §73-35-5.

Cross References —

Exclusion of this section from provisions of §§89-1-501 through89-1-523, see §89-1-501.

Editor’s Notes —

At the direction of the co-counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, the reference to “this chapter” in the first sentence of the section has been corrected to read “this article.”

Cross References —

Effect of landowner’s permission to use land, see §89-5-25.

Exceptions to limitations of landowner’s liability, see §89-2-27.

RESEARCH REFERENCES

ALR.

Modern status of rules conditioning landowner’s liability upon status of injured party as invitee, licensee, or trespasser. 22 A.L.R.4th 294.

Effect of statute limiting landowner’s liability for personal injury to recreational user. 47 A.L.R.4th 262.

Am. Jur.

62 Am. Jur. 2d, Premises Liability §§ 68 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Premises Liability, Form 179.2 (answer, defense, plaintiff injured during recreational use of defendant’s property, statutory defense).

Editor’s Notes —

At the direction of the co-counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, the reference to “this chapter” near the beginning of the section has been corrected to read “this article.”

RESEARCH REFERENCES

ALR.

Effect of statute limiting landowner’s liability for personal injury to recreational user. 47 A.L.R.4th 262.

Am. Jur.

20 Am. Jur. Pl & Pr Forms (Rev), Premises Liability, Form 179.2 (answer, defense, plaintiff injured during recreational use of defendant’s property, statutory defense).

Editor’s Notes —

At the direction of the co-counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, the reference to “This chapter” at the beginning of the section has been corrected to read “This article.”

RESEARCH REFERENCES

ALR.

Modern status of rules conditioning landowner’s liability upon status of injured party as invitee, licensee, or trespasser. 22 A.L.R.4th 294.

Effect of statute limiting landowner’s liability for personal injury to recreational user. 47 A.L.R.4th 262.

Am. Jur.

62 Am. Jur. 2d, Premises Liability §§ 68 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Premises Liability, Form 179.2 (answer, defense, plaintiff injured during recreational use of defendant’s property, statutory defense).

Editor’s Notes —

At the direction of the co-counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, the reference to “this chapter” near the beginning of the first sentence has been corrected to read “this article” and the reference to “Said chapter” at the beginning of the second sentence has been corrected to read “Said article.”

JUDICIAL DECISIONS

1. In general.

Protection of §89-2-1 is not available to landowner who made no attempt to comply with statutory notice provision contained in last sentence of §89-2-7. Dumas v. Pike County, 642 F. Supp. 131, 1986 U.S. Dist. LEXIS 25794 (S.D. Miss. 1986).

RESEARCH REFERENCES

ALR.

Modern status of rules conditioning landowner’s liability upon status of injured party as invitee, licensee, or trespasser. 32 A.L.R.3d 508.

Effect of statute limiting landowner’s liability for personal injury to recreational user. 47 A.L.R.4th 262.

Am. Jur.

62 Am. Jur. 2d, Premises Liability §§ 68 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Premises Liability, Form 179.2 (answer, defense, plaintiff injured during recreational use of defendant’s property, statutory defense).

RESEARCH REFERENCES

ALR.

Effect of statute limiting landowner’s liability for personal injury to recreational user. 47 A.L.R.4th 262.

Am. Jur.

62 Am. Jur. 2d, Premises Liability §§ 30, 31, 68 et seq., 72-76, 226.

CJS.

65 C.J.S., Negligence §§ 67 et seq., 76, 77et seq., 86 et seq.

Cross References —

Exceptions to limitations of liability, see §89-2-27.

RESEARCH REFERENCES

ALR.

Common-law strict liability in tort of prior landowner or lessee to subsequent owner for contamination of land with hazardous waste resulting from prior owner’s or lessee’s abnormally dangerous or ultrahazardous activity. 13 A.L.R.5th 600.

Prejudicial effect of unauthorized view by jury in civil case of scene of accident or premises in question. 11 A.L.R.3d 918.

Comment note.-Premises liability: Proceeding in the dark as contributory negligence. 22 A.L.R.3d 286.

Premises liability: Proceeding in the dark along outside path or walkway as contributory negligence. 22 A.L.R.3d 599.

Premises liability: Proceeding in the dark across exterior premises as contributory negligence. 23 A.L.R.3d 441.

Comment note.-Duty of possessor of land to warn child licensees of danger. 26 A.L.R.3d 317.

Modern status of the rule absolving a possessor of land of liability to those coming thereon for harm caused by dangerous physical conditions of which the injured party knew and realized the risk. 35 A.L.R.3d 230.

Liability of owner or operator of trailer camp or park for injury or death from condition of premises. 41 A.L.R.3d 546.

Liability in connection with injury allegedly caused by defective condition of private road or driveway. 44 A.L.R.3d 355.

Liability of vendor or grantor of real estate for personal injury to purchaser or third person due to defective condition of premises. 48 A.L.R.3d 1027.

Attractive nuisance doctrine as applied to trees, shrubs, and the like. 59 A.L.R.3d 848.

Comment note.-Duty to take affirmative action to avoid injury to trespasser in position of peril through no fault of landowner. 70 A.L.R.3d 1125.

Liability for injuries in connection with ice or snow on nonresidential premises. 95 A.L.R.3d 15.

Modern status of rules as to admissibility of evidence of prior accidents or injuries at same place. 21 A.L.R.4th 472.

Modern status of rules conditioning landowner’s liability upon status of injured party as invitee, licensee, or trespasser. 22 A.L.R.4th 294.

Liability of owner or occupant of premises to police officer coming thereon in discharge of officer’s duty. 30 A.L.R.4th 81.

Effect of statute limiting landowner’s liability for personal injury to recreational user. 47 A.L.R.4th 262.

Violation of governmental regulations as to conditions and facilities of swimming pools as affecting liability in negligence. 79 A.L.R.4th 461.

Am. Jur.

62 Am. Jur. 2d, Premises Liability §§ 30, 31, 68 et seq., 72-76, 226.

18A Am. Jur. Pl & Pr Forms (Rev), Negligence, Form 149.2 (Complaint, petition, or declaration-By family of decedent-Against owner of building where fatal shooting occurred).

20 Am. Jur. Pl & Pr Forms (Rev), Premises Liability, Form 115.1 (complaint by social guest injured by dive into shallow lake against lake owner and lakefront property owner).

48 Am. Jur. Proof of Facts 2d 275, Premises Liability: Willful or Wanton Conduct causing Injury to Entrant.

4 Am. Jur. Proof of Facts 3d 1, Swimming Pool Diving Injuries-Failure to Warn of Dangerous Condition.

CJS.

65 C.J.S., Negligence §§ 67 et seq., 76, 77et seq., 86 et seq.

Cross References —

Exceptions to limitations of liability, see §89-2-27.

RESEARCH REFERENCES

ALR.

Prejudicial effect of unauthorized view by jury in civil case of scene of accident or premises in question. 11 A.L.R.3d 918.

Proceeding in the dark as contributory negligence. 22 A.L.R.3d 286.

Proceeding in the dark along outside path or walkway as contributory negligence. 22 A.L.R.3d 599.

Proceeding in the dark across exterior premises as contributory negligence. 23 A.L.R.3d 441.

Duty of possessor of land to warn child licensees of danger. 26 A.L.R.3d 317.

Modern status of the rule absolving a possessor of land of liability to those coming thereon for harm caused by dangerous physical conditions of which the injured party knew and realized the risk. 35 A.L.R.3d 230.

Liability of owner or operator of trailer camp or park for injury or death from condition of premises. 41 A.L.R.3d 546.

Liability in connection with injury allegedly caused by defective condition of private road or driveway. 44 A.L.R.3d 355.

Liability of vendor or grantor of real estate for personal injury to purchaser or third person due to defective condition of premises. 48 A.L.R.3d 1027.

Attractive nuisance doctrine as applied to trees, shrubs, and the like. 59 A.L.R.3d 848.

Duty to take affirmative action to avoid injury to trespasser in position of peril through no fault of landowner. 70 A.L.R.3d 1125.

Liability for injuries in connection with ice or snow on nonresidential premises. 95 A.L.R.3d 15.

Modern status of rules as to admissibility of evidence of prior accidents or injuries at same place. 21 A.L.R.4th 472.

Modern status of rules conditioning landowner’s liability upon status of injured party as invitee, licensee, or trespasser. 22 A.L.R.4th 294.

Liability of owner or occupant of premises to police officer coming thereon in discharge of officer’s duty. 30 A.L.R.4th 81.

Effect of statute limiting landowner’s liability for personal injury to recreational user. 47 A.L.R.4th 262.

Am. Jur.

62 Am. Jur. 2d, Premises Liability §§ 30, 31, 68 et seq., 72-76, 226.

20 Am. Jur. Pl & Pr Forms (Rev), Premises Liability, Form 115.1 (complaint by social guest injured by dive into shallow lake against lake owner and lakefront property owner).

CJS.

65 C.J.S., Negligence §§ 67 et seq., 76, 77et seq., 86 et seq.

Cross References —

Limitation of a landowner’s liability to recreational users of land, to which limitation this section provides exceptions, see §§89-2-23 and89-2-25.

RESEARCH REFERENCES

ALR.

Common-law strict liability in tort of prior landowner or lessee to subsequent owner for contamination of land with hazardous waste resulting from prior owner’s or lessee’s abnormally dangerous or ultrahazardous activity. 13 A.L.R.5th 600.

Prejudicial effect of unauthorized view by jury in civil case of scene of accident or premises in question. 11 A.L.R.3d 918.

Proceeding in the dark as contributory negligence. 22 A.L.R.3d 286.

Proceeding in the dark along outside path or walkway as contributory negligence. 22 A.L.R.3d 599.

Proceeding in the dark across exterior premises as contributory negligence. 23 A.L.R.3d 441.

Duty of possessor of land to warn child licensees of danger. 26 A.L.R.3d 317.

Modern status of the rule absolving a possessor of land of liability to those coming thereon for harm caused by dangerous physical conditions of which the injured party knew and realized the risk. 35 A.L.R.3d 230.

Liability of owner or operator of trailer camp or park for injury or death from condition of premises. 41 A.L.R.3d 546.

Liability in connection with injury allegedly caused by defective condition of private road or driveway. 44 A.L.R.3d 355.

Liability of vendor or grantor of real estate for personal injury to purchaser or third person due to defective condition of premises. 48 A.L.R.3d 1027.

Attractive nuisance doctrine as applied to trees, shrubs, and the like. 59 A.L.R.3d 848.

Duty to take affirmative action to avoid injury to trespasser in position of peril through no fault of landowner. 70 A.L.R.3d 1125.

Liability for injuries in connection with ice or snow on nonresidential premises. 95 A.L.R.3d 15.

Modern status of rules as to admissibility of evidence of prior accidents or injuries at same place. 21 A.L.R.4th 472.

Modern status of rules conditioning landowner’s liability upon status of injured party as invitee, licensee, or trespasser. 22 A.L.R.4th 294.

Liability of owner or occupant of premises to police officer coming thereon in discharge of officer’s duty. 30 A.L.R.4th 81.

Effect of statute limiting landowner’s liability for personal injury to recreational user. 47 A.L.R.4th 262.

Am. Jur.

62 Am. Jur. 2d, Premises Liability §§ 30, 31, 68 et seq., 72-76, 226.

4 Am. Jur. Proof of Facts 3d 1, Swimming Pool Diving Injuries-Failure to Warn of Dangerous Condition.

CJS.

65 C.J.S., Negligence §§ 67 et seq., 76, 77et seq., 86 et seq.

Joint Legislative Committee Note —

Section 8 of ch. 364, Laws of 2011, effective from and after July 1, 2011 (approved March 11, 2011), amended this section. Section 2 of ch. 538, Laws of 2011, effective July 1, 2011 (approved April 26, 2011), also amended this section. As set out above, this section reflects the language of Section 2 of ch. 538, Laws of 2011, which contains language that specifically provides that it supersedes §89-3-1 as amended by Laws of 2011, ch. 364.

Amendment Notes —

The first 2011 amendment (ch. 364), inserted “the provisions of Sections 89-5-101 through 89-5-113” following “Except in cases governed by the Uniform Commercial Code.”

The second 2011 amendment (ch. 538), rewrote (1); and added (2) and (3).

Cross References —

Duty of chancery clerk to record instruments, see §9-5-137.

Priority of security interests and fixtures, see §75-9-313.

Place of filing in order to perfect security interest under Uniform Commercial Code, see §75-9-501.

Recording of instruments generally, see §89-5-1.

Recording of patents, whether acknowledged or not, see §89-5-11.

Validity of deeds recorded for a 20 year period, see §89-5-13.

Recording of wills, see §§91-7-31,91-7-33.

Criminal offense of false certificate of acknowledgment or proof of deeds and other recordable instruments, see §97-21-7.

JUDICIAL DECISIONS

1. In general.

2. Record of defectively acknowledged deed.

1. In general.

Chancery court properly granted a decedent’s former wife summary judgment in an executrix’s action seeking to void deeds because the property-settlement agreement between the decedent and wife contemplated that the property would pass by survivorship; the conveyances of the wife’s undivided one-half interest were void, and thus, the original joint tenancy with rights of survivorship was still intact at the decedent’s death, and the wife was entitled to the entire property. O'Brien v. Westedt, 243 So.3d 792, 2018 Miss. App. LEXIS 165 (Miss. Ct. App. 2018).

Recordation statute (§89-3-1) applies to any instrument affecting title to real property, including substitution of trustee. White v. Delta Foundation, Inc., 481 So. 2d 329, 1985 Miss. LEXIS 2339 (Miss. 1985).

A deed with a defective acknowledgment was not eligible for recordation, and was not effective as to third parties, under §89-3-1, but it was wholly effective between the parties to it. Cotton v. McConnell, 435 So. 2d 683, 1983 Miss. LEXIS 2737 (Miss. 1983).

Certificate of acknowledgment of a deed is presumed to state the truth. Arnold v. Byrd, 222 So. 2d 410, 1969 Miss. LEXIS 1535 (Miss. 1969).

Delivery necessary to pass title. Lynch v. Lynch, 121 Miss. 752, 83 So. 807, 1920 Miss. LEXIS 119 (Miss. 1920).

Presumption of delivery from record disappears upon showing of no delivery. Lynch v. Lynch, 121 Miss. 752, 83 So. 807, 1920 Miss. LEXIS 119 (Miss. 1920).

Assignment of debt, though in form of deed of trust may be noted on deed of trust record. West v. Union Naval Stores Co., 116 Miss. 743, 77 So. 609, 1917 Miss. LEXIS 347 (Miss. 1917).

Clerk not incompetent to take acknowledgment of bank’s general assignment for creditors because indebted to bank. Dodwell v. Rieves, 114 Miss. 4, 74 So. 770, 1917 Miss. LEXIS 4 (Miss. 1917).

A conveyance of personalty absolute on its face, and free from any trust, condition, or reservation, need not be recorded. Thomas v. Grand Gulf Bank, 17 Miss. 201, 1848 Miss. LEXIS 3 (Miss. 1848).

2. Record of defectively acknowledged deed.

Where a deed was first conveyed to a grandson by the decedent, then conveyed back to the estate, then conveyed to the grandson again by the executrix, but the executrix later sought to set aside the deed when the grandson died, notwithstanding the failure to have strictly followed form, the acknowledgment contained all the necessary information and, therefore, was not fatal to the deed’s validity; furthermore, it was clear from the deed that the executrix was acting on behalf of the decedent, the grantor, and, thus, there was no ambiguity Estate of Dykes v. Estate of Williams, 864 So. 2d 926, 2003 Miss. LEXIS 759 (Miss. 2003).

In action arising from defendants’ alleged negligence and misconduct in conducting substituted trustee’s foreclosure sale, acknowledgment verifying that person who executed appointment of substituted trustee had, in fact, appeared before notary public and signed document was not fatally defective under §89-3-1 due to notary’s failure to fill in blank space provided for name of person who appeared before him and executed instrument, as such person’s identity was readily ascertainable from appointment form itself. Morton v. Resolution Trust Corp., 918 F. Supp. 985, 1995 U.S. Dist. LEXIS 20453 (S.D. Miss. 1995).

Where a warranty deed appeared to have been acknowledged and signed by the mark of a named grantor and the acknowledgment was notarized, but the notary public described the person who signed the deed as a person of altogether different description from that of the named grantor, the deed was properly canceled as a forgery. Arnold v. Byrd, 222 So. 2d 410, 1969 Miss. LEXIS 1535 (Miss. 1969).

A deed which is defectively acknowledged by reason of the fact that word “delivered” was omitted from acknowledgment is good as between the parties. Kelly v. Wilson, 204 Miss. 56, 36 So. 2d 817, 1948 Miss. LEXIS 342 (Miss. 1948).

United States commissioner was not “judge of United States court” within statute authorizing judges of United States courts to acknowledge instruments to be recorded, and hence deed acknowledged by such commissioner was not entitled to be admitted to record in clerk’s office. Smith v. McIntosh, 176 Miss. 725, 170 So. 303, 1936 Miss. LEXIS 175 (Miss. 1936).

State, and not federal, statutes determine what officers are competent to take and certify acknowledgments which will entitle instruments to be admitted to record. Smith v. McIntosh, 176 Miss. 725, 170 So. 303, 1936 Miss. LEXIS 175 (Miss. 1936).

Deed admitted to record without proper acknowledgment did not constitute constructive notice to subsequent purchasers for valuable consideration. Smith v. McIntosh, 176 Miss. 725, 170 So. 303, 1936 Miss. LEXIS 175 (Miss. 1936).

Deed not notice to subsequent purchaser where acknowledgment defective so as not to entitle it to be recorded. Tinnin v. Brown, 98 Miss. 378, 53 So. 780, 1910 Miss. LEXIS 74 (Miss. 1910).

Deed not recordable if acknowledgment fail to show its delivery, and if recorded will not impart constructive notice of its existence. Ligon v. Barton, 88 Miss. 135, 40 So. 555, 1906 Miss. LEXIS 122 (Miss. 1906).

An acknowledgment to a trust deed taken before an officer who is himself trustee therein, with power to sell to pay debts, is void and does not entitle the deed to be recorded. Holden v. Brimage, 72 Miss. 228, 18 So. 383, 1894 Miss. LEXIS 142 (Miss. 1894).

Notwithstanding this section [Code 1942, § 856], if one takes a trust deed on land after having read on the record a prior trust deed on the property, though not properly acknowledged, he is not an innocent purchaser. Woods v. Garnett, 72 Miss. 78, 16 So. 390, 1894 Miss. LEXIS 89 (Miss. 1894).

OPINIONS OF THE ATTORNEY GENERAL

Instruments concerning real property should be properly executed and acknowledged before being recorded. Robinson, Jan. 18, 2005, A.G. Op. 04-0612.

RESEARCH REFERENCES

ALR.

Record of instrument without sufficient acknowledgment as notice. 59 A.L.R.2d 1299.

Am. Jur.

66 Am. Jur. 2d, Records and Recording Laws § 68.

1 Am. Jur. Pl & Pr Forms (Rev), Acknowledgments, Forms 1 et seq.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Persons before whom oaths may be taken, see §11-1-1.

Powers of notaries public and ex officio notaries public to receive proof or acknowledgment of instruments, see §§25-33-11,25-33-17.

Acknowledgment of execution of corporate deed, see §89-1-21.

Certificate of acknowledgment and proof, see §89-5-1.

Necessity for acknowledgment or proof for validity of conveyances or mortgages, see §89-5-3.

Criminal offense of falsely personating another and thereby acknowledging deed, see §97-19-33.

JUDICIAL DECISIONS

1. In general.

United States commissioner was not “judge of United States court” within statute authorizing judges of United States courts to acknowledge instruments to be recorded, and hence deed acknowledged by such commissioner was not entitled to be admitted to record in clerk’s office. Smith v. McIntosh, 176 Miss. 725, 170 So. 303, 1936 Miss. LEXIS 175 (Miss. 1936).

State, and not federal, statutes determine what officers are competent to take and certify acknowledgments which will entitle instruments to be admitted to record. Smith v. McIntosh, 176 Miss. 725, 170 So. 303, 1936 Miss. LEXIS 175 (Miss. 1936).

Deed admitted to record without proper acknowledgment did not constitute constructive notice to subsequent purchasers for valuable consideration. Smith v. McIntosh, 176 Miss. 725, 170 So. 303, 1936 Miss. LEXIS 175 (Miss. 1936).

Justice of the peace liable on official bond for false certificate of acknowledgment. Hodges v. Mills, 139 Miss. 347, 104 So. 165, 1925 Miss. LEXIS 155 (Miss. 1925).

An acknowledgment taken to a deed of trust by an officer who is the beneficiary therein is void. Wasson v. Connor, 54 Miss. 351, 1877 Miss. LEXIS 9 (Miss. 1877).

The deputy of a clerk, where the statute authorizes him to perform all the duties enjoined upon his principal, may take an acknowledgment. McRaven v. McGuire, 17 Miss. 34, 1847 Miss. LEXIS 87 (Miss. 1847).

RESEARCH REFERENCES

ALR.

Sufficiency of certificate of acknowledgment. 25 A.L.R.2d 1124.

Am. Jur.

1 Am. Jur. 2d, Acknowledgments §§ 8 et seq.

1 Am. Jur. Pl & Pr Forms (Rev), Acknowledgments, Forms 1 et seq.

CJS.

1A C.J.S., Acknowledgments §§ 24 et seq.

Cross References —

Notarial acts of commissioned officers of the United States armed forces, see §25-33-23.

Editor’s Notes —

Section 2, ch. 475, Laws of 1988, effective from and after July 1, 1988, provides as follows:

“SECTION 2. Acknowledgments in the forms permitted under prior law shall continue to be sufficient to satisfy all requirements of law.”

Amendment Notes —

The 2000 amendment substituted “20 _______________ ” for “19 _______________ ” throughout; added present (c) through (e) and redesignated former (c) and (d) as present (f) and (g).

The 2011 amendment added (h).

JUDICIAL DECISIONS

1. In general.

2. Conveyance of corporate or partnership property.

3. Impeachment of acknowledgment.

4. Defective acknowledgment.

5. Miscellaneous.

1. In general.

Where a deed was first conveyed to a grandson by the decedent, then conveyed back to the estate, then conveyed to the grandson again by the executrix, but the executrix later sought to set aside the deed when the grandson died, notwithstanding the failure to have strictly followed form, the acknowledgment contained all the necessary information and, therefore, was not fatal to the deed’s validity; furthermore, it was clear from the deed that the executrix was acting on behalf of the decedent, the grantor, and, thus, there was no ambiguity Estate of Dykes v. Estate of Williams, 864 So. 2d 926, 2003 Miss. LEXIS 759 (Miss. 2003).

There was no ambiguity or disabling defect in an acknowledgment which recited that the grantors “acknowledged that they signed and delivered to the foregoing deed,” so as to divest its recordation of its efficacy as constructive notice. Davis v. Gulf Refining Co., 202 Miss. 808, 32 So. 2d 133, 1947 Miss. LEXIS 344 (Miss. 1947).

Attestation by a single witness is sufficient, and a substantial compliance with the statutory form is all that is required. White v. Union Producing Co., 140 F.2d 176, 1944 U.S. App. LEXIS 3896 (5th Cir. 1944).

Where proof of the execution of a colessor’s agreement was made in the manner required by law before an officer competent to take the same, and was duly certified to by him, the certificate, showing full compliance with the statute, is conclusive of the facts, except in cases of fraud; and if there was no fraud in procuring the execution of the instrument, there is none in making proof of its execution and having it filed for record. White v. Union Producing Co., 140 F.2d 176, 1944 U.S. App. LEXIS 3896 (5th Cir. 1944).

The officer who has properly exercised the judicial function of taking an acknowledgment, may perform the clerical act of making the certificate at any time while he remains in office, if rights of third persons do not intervene. Harmon v. Magee, 57 Miss. 410, 1879 Miss. LEXIS 94 (Miss. 1879).

The certificate of acknowledgment cannot be enlarged by averment. Willis v. Gattman, 53 Miss. 721, 1876 Miss. LEXIS 141 (Miss. 1876).

A certificate showing a full compliance with the statute, except in cases of fraud, is conclusive of the facts. Johnston v. Wallace, 53 Miss. 331, 1876 Miss. LEXIS 72 (Miss. 1876).

The term “executed,” when used in the acknowledgment of an instrument, imports “signing, sealing, and delivery.” Smith v. Williams, 38 Miss. 48, 1859 Miss. LEXIS 92 (Miss. 1859); Perkins, Livingston & Post v. Swank, 43 Miss. 349, 1870 Miss. LEXIS 46 (Miss. 1870).

The description of an officer need not be fully stated-abbreviations may be used; And it seems that evidence aliunde may be heard to show the official character of the officer. Russ v. Wingate, 30 Miss. 440, 1855 Miss. LEXIS 116 (Miss. 1855).

Substantial compliance with the form, even in cases of witnesses, is sufficient. Morse v. Clayton, 21 Miss. 373, 1850 Miss. LEXIS 31 (Miss. 1850).

A deed attested by a single witness is rightfully admitted to record on proof made by him. Wilkins v. Wells, 17 Miss. 325, 1848 Miss. LEXIS 18 (Miss. 1848); Morris v. Rucks, 62 Miss. 76, 1884 Miss. LEXIS 23 (Miss. 1884).

2. Conveyance of corporate or partnership property.

Official acknowledgment for public record of corporate document should in some manner make it clear that it is corporation executing instrument by and through authorized officer, officers, or agent. White v. Delta Foundation, Inc., 481 So. 2d 329, 1985 Miss. LEXIS 2339 (Miss. 1985).

The fact that defendant’s agent in procuring colessor’s agreement was employed at a fixed salary did not disqualify him to act as a nonofficial subscribing witness or to make proof of the execution of such agreement, where he had no pecuniary interest in the matter. White v. Union Producing Co., 140 F.2d 176, 1944 U.S. App. LEXIS 3896 (5th Cir. 1944).

Deed signed and acknowledged by corporation’s president and attested by secretary under seal held sufficient. Griffis v. Martin Oil Co., 127 Miss. 606, 90 So. 324, 1921 Miss. LEXIS 263 (Miss. 1921).

One partner cannot acknowledge deed to partnership property unless his authority affirmatively appears. Tinnin v. Brown, 98 Miss. 378, 53 So. 780, 1910 Miss. LEXIS 74 (Miss. 1910).

3. Impeachment of acknowledgment.

A certificate of acknowledgment may be shown to be a fraud and a forgery. T. H. & J. M. Allen & Co. v. Lenoir, 53 Miss. 321, 1876 Miss. LEXIS 71 (Miss. 1876).

The officer who makes the certificate is incompetent as a witness to impeach it. Stone v. Montgomery, 35 Miss. 83, 1858 Miss. LEXIS 9 (Miss. 1858).

4. Defective acknowledgment.

Instrument will not necessarily be deemed fatally deficient on basis of omission from acknowledgment where omission can be remedied by reference to body of instrument itself. White v. Delta Foundation, Inc., 481 So. 2d 329, 1985 Miss. LEXIS 2339 (Miss. 1985).

A deed which is defectively acknowledged by reason of the fact that word “delivered” was omitted from acknowledgment is good as between the parties. Kelly v. Wilson, 204 Miss. 56, 36 So. 2d 817, 1948 Miss. LEXIS 342 (Miss. 1948).

Acknowledgment of power of attorney which failed to show acknowledgment of delivery of power, held void. Lucas v. New Hebron Bank, Inc., 181 Miss. 762, 180 So. 611, 1938 Miss. LEXIS 116 (Miss. 1938).

Trust created by deed not acknowledged according to law was void; trustees thereunder not entitled to maintain suit to remove cloud on theory that upon failure of trust conveyance to them was absolute. Board of Trustees v. Odom, 100 Miss. 64, 56 So. 314, 1911 Miss. LEXIS 15 (Miss. 1911).

Deed not constructive notice to subsequent purchasers where acknowledgment fatally defective. Tinnin v. Brown, 98 Miss. 378, 53 So. 780, 1910 Miss. LEXIS 74 (Miss. 1910).

Record of deed not notice when acknowledgment omits word “delivered.” Ligon v. Barton, 88 Miss. 135, 40 So. 555, 1906 Miss. LEXIS 122 (Miss. 1906).

Acknowledgment which does not state that grantor executed or delivered deed is fatally bad; such deed not entitled to record and not constructive notice. Elmslie v. Thurman, 87 Miss. 537, 40 So. 67, 1905 Miss. LEXIS 179 (Miss. 1905).

Lease not entitled to record because of improper acknowledgment, not ineffective against subsequent grantees with actual notice. Ladnier v. Stewart, 38 So. 748 (Miss. 1905).

The omission of the words “on the day and year therein mentioned,” was not, under former statute, a material defect in an acknowledgment. Caruthers v. McLaran, 56 Miss. 371, 1879 Miss. LEXIS 132 (Miss. 1879).

An acknowledgment that one simply “signed” a deed is not sufficient. Robinson v. Noel, 49 Miss. 253, 1873 Miss. LEXIS 112 (Miss. 1873).

5. Miscellaneous.

Intention to deliver deed does not dispense with manual delivery. Lynch v. Lynch, 121 Miss. 752, 83 So. 807, 1920 Miss. LEXIS 119 (Miss. 1920).

Parol evidence admissible to show grantee of land had notice of prior lease. Ladnier v. Stewart, 38 So. 748 (Miss. 1905).

RESEARCH REFERENCES

ALR.

Written matter as controlling printed matter in construction of deed. 37 A.L.R.2d 820.

Am. Jur.

1A Am. Jur. Legal Forms 2d, Acknowledgments § 7:348 (subscribing witnesses).

7 Am. Jur. Legal Forms 2d, Deeds §§ 87:261 et seq. (formalities of execution).

Law Reviews.

Marcase, The absence of a signature requirement in Mississippi notary law: fraud waiting to happen. 13 Miss. C. L. Rev. 371 (Spring, 1993).

Cross References —

Appointment of commissioners for other states by governor, see §7-1-17.

Persons before whom oaths may be taken, see §11-1-1.

Ex officio notaries public, see §25-33-17.

RESEARCH REFERENCES

ALR.

Sufficiency of certificate of acknowledgment. 25 A.L.R.2d 1124.

Am. Jur.

1 Am. Jur. 2d, Acknowledgments §§ 40-42.

CJS.

1A C.J.S., Acknowledgments §§ 31, 38.

Cross References —

Appointment of commissioners by governor, see §7-1-17.

Ex officio notaries public, see §25-33-17.

RESEARCH REFERENCES

ALR.

Sufficiency of certificate of acknowledgment. 25 A.L.R.2d 1124.

Am. Jur.

1 Am. Jur. 2d, Acknowledgments § 22.

CJS.

1A C.J.S., Acknowledgments §§ 32, 38.

Cross References —

When proof of signature is unnecessary, see §13-1-139.

JUDICIAL DECISIONS

1. In general.

A single witness to a deed is sufficient. Wilkins v. Wells, 17 Miss. 325, 1848 Miss. LEXIS 18 (Miss. 1848); Morris v. Rucks, 62 Miss. 76, 1884 Miss. LEXIS 23 (Miss. 1884).

Joint Legislative Committee Note —

Section 9 of ch. 364, Laws of 2011, effective from and after July 1, 2011 (approved March 11, 2011), amended this section. Section 3 of ch. 538, Laws of 2011, effective July 1, 2011 (approved April 26, 2011), also amended this section. As set out above, this section reflects the language of Section 3 of ch. 538, Laws of 2011, which contains language that specifically provides that it supersedes §89-5-1 as amended by Laws of 2011, ch. 364.

Amendment Notes —

The first 2011 amendment (ch. 364) added “Except as provided by Sections 89-5-101 through 89-5-113” at the beginning of the paragraph.

The second 2011 amendment (ch. 538) rewrote the section.

Cross References —

Filing and recording of secured transactions under the Uniform Commercial Code, see §§75-9-401 et seq.

Payment of insurance to mortgagees in order of priority, see §83-13-7.

Recording of federal tax liens and other federal lien notices, see §85-8-1 et seq.

Racketeer Influenced and Corrupt Organization Act, see §§97-43-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Applicability to wills.

3. Actual possession as notice.

4. Deeds of trust.

5. Lis pendens.

6. Intervening judgments.

7. Miscellaneous.

1. In general.

Title need not be recorded to bind bona fide purchaser from original owner; purchaser from record owner must ascertain existence of adverse possession hostile thereto. Lowi v. David, 134 Miss. 296, 98 So. 684, 1924 Miss. LEXIS 255 (Miss. 1924).

Deed takes effect as to subsequent purchasers and creditors without notice only from time delivered to be recorded; whether subsequent deed or lien be filed or recorded or not is immaterial. Craig v. Osborn, 134 Miss. 323, 98 So. 598, 1923 Miss. LEXIS 244 (Miss. 1923).

Purchasers for value without notice from grantor’s heirs entitled to same protection as if purchasing directly from grantor. Reddoch v. Williams, 129 Miss. 706, 92 So. 831, 1922 Miss. LEXIS 84 (Miss. 1922).

Constructive notice begins moment deed is lodged with proper officer for record, and failure of clerk to mark filed when received is immaterial. Sowell v. Rankin, 120 Miss. 458, 82 So. 317, 1919 Miss. LEXIS 108 (Miss. 1919).

Deed not constructive notice to subsequent purchasers where acknowledgment so defective as not to entitle it to record. Tinnin v. Brown, 98 Miss. 378, 53 So. 780, 1910 Miss. LEXIS 74 (Miss. 1910).

The mere acknowledgment that a party signed a deed, which was not in fact signed by her, is invalid as a transfer. Jones v. Gurlie, 61 Miss. 423, 1883 Miss. LEXIS 153 (Miss. 1883).

2. Applicability to wills.

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.” Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

Probate and record of domestic will in county where testator resided constituted notice throughout state to subsequent mortgagee of land, without necessity of recording will in county where land situated. Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

3. Actual possession as notice.

An owner in possession by himself or by his tenants is not affected by this statute, his actual possession being all of the notice necessary to any prospective purchaser. Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So. 2d 100, 1947 Miss. LEXIS 399 (Miss. 1947).

Purchaser charged with notice of rights of tenant in possession. Frye v. Rose, 120 Miss. 778, 83 So. 179, 1919 Miss. LEXIS 131 (Miss. 1919).

4. Deeds of trust.

Defectively acknowledged deed of trust was ineligible for recordation under §89-5-1, however, fact that it was recorded constituted actual notice to subsequent purchasers of the interest claimed under defective deed of trust such that federal tax lien which attached subsequent to erroneous recordation of defective deed of trust was subordinate thereto. Metropolitan Nat'l Bank v. United States, 716 F. Supp. 946, 1989 U.S. Dist. LEXIS 7664 (S.D. Miss. 1989), rev'd, 901 F.2d 1297, 1990 U.S. App. LEXIS 8550 (5th Cir. Miss. 1990).

A recorded deed of trust, containing an erroneous description of the land conveyed by the grantor, which recited that the land in question contained 60 acres more or less, whereas the grantor only owned 40 acres, was not sufficient to put the grantor’s judgment creditors on notice that an entirely different tract of land was intended to be included, and did not give notice of a description which a diligent search of the records might have disclosed as to other lands belonging to the grantor, so that while the grantee was entitled to a reformation of a trust deed as against the grantor, he was not so entitled as against the judgment creditors, who had executed on the land actually owned by the grantor. Mississippi Industries for Blind v. Jackson, 231 Miss. 135, 95 So. 2d 109, 1957 Miss. LEXIS 496 (Miss. 1957).

5. Lis pendens.

The filing of a notice of lis pendens in an action before the recordation of a prior deed is effective to make a judgment recovered against the grantor after such recordation a lien on the property conveyed. Jones v. Jones, 249 Miss. 322, 161 So. 2d 640, 1964 Miss. LEXIS 393 (Miss. 1964).

6. Intervening judgments.

A judgment enrolled on January 3, 1961, within 20 days after its rendition, did not relate back to the date of its rendition, December 13, 1960, to give the judgment creditor a specific lien on property which the judgment debtor had conveyed to third parties on November 29, 1960, the deed being filed for record on December 14, 1960. Herrington v. Heidelberg, 244 Miss. 364, 141 So. 2d 717, 1962 Miss. LEXIS 456 (Miss. 1962).

In view of the provisions of the statute (Howard & H. Stat. 1840, ch. 34, p. 344, § 5) requiring the recording of an instrument to make it effective as against third persons, a judgment rendered in the interval between the execution and the recording of a deed is a lien upon the land of the debtor. Taylor v. Doe, 54 U.S. 287, 14 L. Ed. 149, 1851 U.S. LEXIS 860 (U.S. 1852).

7. Miscellaneous.

The recording of an instrument does not put any subsequent purchaser on inquiry notice. C & D Inv. Co. v. Gulf Transport Co., 526 So. 2d 526, 1988 Miss. LEXIS 246 (Miss. 1988).

Certificate of acknowledgment of a deed is presumed to state the truth. Arnold v. Byrd, 222 So. 2d 410, 1969 Miss. LEXIS 1535 (Miss. 1969).

Mortgagee loaning money for the purchase of lots and construction of houses thereon should advance proceeds with reasonable diligence in order that holders of statutory liens may not be unjustly defeated in their claims. First Nat'l Bank v. Virden, 208 Miss. 679, 45 So. 2d 268, 1950 Miss. LEXIS 285 (Miss. 1950).

Mortgagee who makes loan to mortgagor to enable him to purchase land and materials and lumber for the construction of houses thereon and turns money over to mortgagor as he asks for it, knowing that houses are being constructed, but doing nothing to see that such construction is being paid for, has preference over materialmen only to extent that its funds actually go into the construction, when mortgagor fails to use all money advanced by mortgagee for payment of those furnishing materials. First Nat'l Bank v. Virden, 208 Miss. 679, 45 So. 2d 268, 1950 Miss. LEXIS 285 (Miss. 1950).

This section [Code 1942, § 867] and Code 1942, §§ 868 and 869 are inapplicable where a grantee accepts a conveyance of certain mineral interests, which conveyance is expressly made subject to any valid and subsisting leases and further obligates the grantor to permit the grantee to receive half of the benefits accruing or to accrue under such leases. Gulf Refining Co. v. Harrison, 201 Miss. 294, 30 So. 2d 44, 1947 Miss. LEXIS 397 (Miss. 1947).

Purchaser held entitled under statute to value of house built during his possession of land in good faith belief that he had full title, as against heirs of wife of his remote grantor who owned a half interest, irrespective of his constructive notice of their rights by recorded deed in the chain of title. Brunt v. McLaurin, 178 Miss. 86, 172 So. 309, 1937 Miss. LEXIS 181 (Miss. 1937).

Deed of trust covering land and ginning machinery and “equipment” did not include seed house constructed on leased railroad right of way. Y. D. Lumber Co. v. Refuge Cotton Oil Co., 153 Miss. 302, 120 So. 447, 1929 Miss. LEXIS 11 (Miss. 1929).

Conveyance is not good against purchaser for value without notice, unless acknowledged or proven and lodged with clerk to be recorded; deed not lodged with clerk to be recorded is void as to subsequent purchaser without notice, even though holder has it filed after subsequent conveyance is executed. Owen v. Potts, 149 Miss. 205, 115 So. 336, 1928 Miss. LEXIS 23 (Miss. 1928).

U.S. revenue laws making invalid unstamped written instruments do not make such instruments unrecordable. Sowell v. Rankin, 120 Miss. 458, 82 So. 317, 1919 Miss. LEXIS 108 (Miss. 1919).

Notice not given where particular trust deed under which sale is made is referred to, which as recorded has on its face no pertinency to the actual sale, even if referred to by proper deed book and page. Provine v. Thornton, 92 Miss. 395, 46 So. 950, 1908 Miss. LEXIS 253 (Miss. 1908).

RESEARCH REFERENCES

ALR.

Title by adverse possession as affected by recording statutes. 9 A.L.R.2d 850.

Discharge of mortgage and taking back of new mortgage as affecting lien intervening between old and new mortgages. 43 A.L.R.5th 519.

Am. Jur.

21 Am. Jur. Pl & Pr Forms (Rev), Records and Recording Laws, Forms 1 et seq.

Law Reviews.

The effect of bankruptcy and encumbrances on mineral interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in the first sentence by substituting “wherein land, money, or other personalty should be settled…” for “wherein land, money, or other personality should be settled…”. The Joint Committee ratified the correction at its August 1, 2013, meeting.

Amendment Notes —

The 2011 amendment added “Except as provided by Sections 89-5-101 through 89-5-113” at the beginning of the paragraph.

Cross References —

Recording of partition decrees, see §11-21-37.

Effect of failure to enter notice of lis pendens, see §11-47-9.

Constructive notice provided by lost or destroyed records, see §25-55-31.

Recording of satisfaction by surety of judgment, see §87-5-11.

Acknowledgment and proof generally, see §§89-3-3 et seq.

Recording of decree establishing title to property by descent, see §91-1-31.

Recording notice of power of appointment, see §91-15-15.

JUDICIAL DECISIONS

1. In general.

2. Who may claim benefit of provision.

3. Record of void instrument.

4. Effect of failure to record or delay in recording.

5. Miscellaneous.

1. In general.

The purpose of the registry statute is that the record shall contain complete information about titles to land located in the county, and to effectuate this purpose, the courts should require and authorize the recording of equitable as well as legal interests. Burkett v. Peoples Bank of Biloxi, 225 Miss. 291, 83 So. 2d 185, 1955 Miss. LEXIS 688 (Miss. 1955).

This section [Code 1942, § 868] and Code 1942, §§ 867 and 869, are inapplicable where a grantee accepts a conveyance of certain mineral interests, which conveyance is expressly made subject to any valid and subsisting leases and further obligates the grantor to permit the grantee to receive half of the benefits accruing or to accrue under such leases. Gulf Refining Co. v. Harrison, 201 Miss. 294, 30 So. 2d 44, 1947 Miss. LEXIS 397 (Miss. 1947).

Statute making conveyances void if not recorded is inapplicable to wills. Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

This section [Code 1942, § 868] held not superseded by Uniform Warehouse Receipts Law. Marine Bank & Trust Co. v. Greeville Sav. Bank & Trust Co., 133 Miss. 91, 97 So. 526, 1923 Miss. LEXIS 120 (Miss. 1923).

This statute applies with as much force with proper officer for record, and failure of clerk to mark filed is immaterial. Sowell v. Rankin, 120 Miss. 458, 82 So. 317, 1919 Miss. LEXIS 108 (Miss. 1919).

This section [Code 1942, § 868] applied in bankruptcy. Laurel Oil & Fertilizer Co. v. Horne, 101 Miss. 629, 57 So. 624, 58 So. 652, 1911 Miss. LEXIS 124 (Miss. 1911).

2. Who may claim benefit of provision.

This statute applies with as much force to a creditor obtaining a lien by judgment as it does to a subsequent purchaser or encumbrancer, and creditors without notice and subsequent purchasers for value without notice are in the same footing and are protected to the same extent. Burkett v. Peoples Bank of Biloxi, 225 Miss. 291, 83 So. 2d 185, 1955 Miss. LEXIS 688 (Miss. 1955).

“Creditor” or “subsequent purchaser” within statute providing that recorded lien should have no effect as to “creditors” and “subsequent purchasers” where remedy thereon was barred by limitations unless renewal or extension is entered on record is person who has parted with something of value on appearance of record, so that apparent bar cannot be availed of by one who became junior lienor before bar attached, and while notice imparted by recorded instrument was in full force. Richter Phillips Co. v. Phillips, 175 Miss. 242, 166 So. 393, 1936 Miss. LEXIS 26 (Miss. 1936).

Person who became judgment creditor of mortgagor, before bar of limitations against enforcement of lien by mortgagee appeared of record, held not “creditor” or “subsequent purchaser” within statute. Richter Phillips Co. v. Phillips, 175 Miss. 242, 166 So. 393, 1936 Miss. LEXIS 26 (Miss. 1936).

Purchasers for value without notice from grantor’s heirs are entitled to same protection as if purchasing directly from grantor. Reddoch v. Williams, 129 Miss. 706, 92 So. 831, 1922 Miss. LEXIS 84 (Miss. 1922).

A purchaser from a vendee of lands may rely on the recitals in the deeds as to payments. Hiller v. Jones, 66 Miss. 636, 6 So. 465, 1889 Miss. LEXIS 158 (Miss. 1889).

The creditors embraced are those who have obtained a lien. Loughridge & Bogan v. Bowland, 52 Miss. 546, 1876 Miss. LEXIS 254 (Miss. 1876).

A purchaser at execution sale is not affected by notice of an unrecorded deed if the judgment-creditor had no notice thereof when his lien attached. Harper v. Tapley, 35 Miss. 506, 1858 Miss. LEXIS 51 (Miss. 1858); Taylor v. Lowenstein, 50 Miss. 278, 1874 Miss. LEXIS 56 (Miss. 1874); Humphreys v. Merrill, 52 Miss. 92, 1876 Miss. LEXIS 171 (Miss. 1876); Perry Nugent & Co. v. Priebatsch, 61 Miss. 402, 1883 Miss. LEXIS 147 (Miss. 1883).

“Purchasers for a valuable consideration” designate that class of persons who have been declared to be such by the courts. Wailes v. Cooper, 24 Miss. 208, 1852 Miss. LEXIS 42 (Miss. 1852); Claiborne v. Holmes, 51 Miss. 146, 1875 Miss. LEXIS 26 (Miss. 1875).

Subsequent purchasers mean purchasers from the grantors directly. Sessions v. Doe, 15 Miss. 130, 1846 Miss. LEXIS 131 (Miss. 1846); Henderson v. Downing, 24 Miss. 106, 1852 Miss. LEXIS 18 (Miss. 1852); Mississippi Valley Co. v. Chicago, S. L. & N. O. R. Co., 58 Miss. 846, 1881 Miss. LEXIS 53 (Miss. 1881); Chaffe v. Halpin & Bonham, 62 Miss. 1, 1884 Miss. LEXIS 1 (Miss. 1884).

Under this statute creditors, as well as subsequent purchasers, are affected by notice of a prior, unrecorded deed. Dixon & Starkey v. Doe, 9 Miss. 70, 1843 Miss. LEXIS 145 (Miss. 1843).

3. Record of void instrument.

Warranty deed which was filed in the wrong judicial district was void as to a utility because the utility acquired its interest to the subject real property in a quick-take condemnation action without notice of the misfiled deed. Harrison County Util. Auth. v. Walker, 143 So.3d 608, 2014 Miss. App. LEXIS 19 (Miss. Ct. App.), cert. denied, 141 So.3d 947, 2014 Miss. LEXIS 386 (Miss. 2014).

Recordation of a deed or mortgage containing a void description does not meet the requirements of the statute. In re Tucker, 1 F. Supp. 18, 1932 U.S. Dist. LEXIS 1649 (D. Miss. 1932); Sack v. Gilmer Dry Goods Co., 149 Miss. 296, 115 So. 339, 1928 Miss. LEXIS 24 (Miss. 1928).

Unsigned recorded deed not notice. Rainey v. Lamb Hardwood Lumber Co., 91 Miss. 690, 45 So. 367, 1907 Miss. LEXIS 178 (Miss. 1907).

Where a mortgage is void on its face the beneficiaries thereof cannot occupy the relation of bona fide purchasers. Acme Lumber Co. v. Hoyt & Bros. Co., 71 Miss. 106, 14 So. 464, 1893 Miss. LEXIS 186 (Miss. 1893).

4. Effect of failure to record or delay in recording.

Decedent’s ex-wife was not entitled to execute a judgment against real estate formerly jointly owned by the decedent and his widow but conveyed by four deeds to the widow’s sister, although the late-recorded deeds were void as to the ex-wife under Miss. Code Ann. §89-5-3, because under Miss. Code Ann. §15-3-101(b)(iii) (Supp. 2010) the property was not subject to a claim against only one joint tenant, and any right the ex-wife had to execute her judgment on the jointly held property ceased to exist upon the decdent’s death. Kelly v. Roby (In re Estate of Roby), 84 So.3d 786, 2011 Miss. App. LEXIS 405 (Miss. Ct. App. 2011).

Unrecorded deed to shopping center voids title of bankruptcy debtor who is to take under deed and shopping center property is therefore not subject to automatic stay in bankruptcy proceeding. In re Pinetree, Ltd., 876 F.2d 34, 1989 U.S. App. LEXIS 9648 (5th Cir. Miss. 1989).

Failure to record an instrument does not affect its efficacy as between the parties thereto, nor does it prevent such an instrument from binding all subsequent purchasers who take either with notice of the instrument or who have not paid valuable consideration. Chevron Oil Co. v. Clark, 291 F. Supp. 552, 1968 U.S. Dist. LEXIS 12565 (S.D. Miss. 1968), aff'd in part and rev'd in part, 432 F.2d 280, 1970 U.S. App. LEXIS 7176 (5th Cir. Miss. 1970).

New promise to avoid bar of statute of limitations is not required to be recorded except as to creditors and subsequent purchasers for value without notice. Richter Phillips Co. v. Phillips, 175 Miss. 242, 166 So. 393, 1936 Miss. LEXIS 26 (Miss. 1936).

Deed or mortgage, unless recorded, is void as to creditor obtaining lien by judgment. Sack v. Gilmer Dry Goods Co., 149 Miss. 296, 115 So. 339, 1928 Miss. LEXIS 24 (Miss. 1928).

Mortgagee for value without notice, not chargeable with unrecorded assignment of lease. Corinth Bank & Trust Co. v. Wallace, 111 Miss. 62, 71 So. 266, 1916 Miss. LEXIS 241 (Miss. 1916).

Enrolled judgment good against subsequently recorded deed from husband to wife. Austin Clothing Co. v. Posey, 105 Miss. 720, 63 So. 224, 1913 Miss. LEXIS 275 (Miss. 1913).

Execution sale of land good against prior unrecorded deed. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

Under this section [Code 1942, § 868], taken in connection with Code 1942, § 869, where a trust deed is made to one who fails to record it until after another has received and recorded a trust deed on the same land, the latter having knowledge of the first deed, the purchaser under the last, though having no actual knowledge of the facts, is not protected as against the prior deed, if at the time of his purchase it had been recorded. Woods v. Garnett, 72 Miss. 78, 16 So. 390, 1894 Miss. LEXIS 89 (Miss. 1894).

5. Miscellaneous.

Beneficiary deed of trust was not void because it identified the note, date of the note, and payment schedule, and thus, the beneficiary could, with simple review, have been reasonably certain. Borries v. Goshen Mortgage, 219 So.3d 593, 2017 Miss. App. LEXIS 276 (Miss. Ct. App. 2017).

If a landowner’s spouse and adult child claimed an interest in a property which a utility sought to acquire in a quick-take condemnation action, their claim was against the landowner only because a warranty deed purporting to convey an interest in the subject property was misfiled in the wrong judicial district. Harrison County Util. Auth. v. Walker, 143 So.3d 608, 2014 Miss. App. LEXIS 19 (Miss. Ct. App.), cert. denied, 141 So.3d 947, 2014 Miss. LEXIS 386 (Miss. 2014).

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found, thus, because the judgment creditors’ liens were filed before the refinancing mortgage was filed, and they attached upon the property being reconveyed from the minor back to the debtor, under Miss. Code Ann. §§89-5-3,89-5-25, the bank was last in priority. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

Defectively acknowledged deed of trust was ineligible for recordation under §89-5-1, however, fact that it was recorded constituted actual notice to subsequent purchasers of the interest claimed under defective deed of trust such that federal tax lien which attached subsequent to erroneous recordation of defective deed of trust was subordinate thereto. Metropolitan Nat'l Bank v. United States, 716 F. Supp. 946, 1989 U.S. Dist. LEXIS 7664 (S.D. Miss. 1989), rev'd, 901 F.2d 1297, 1990 U.S. App. LEXIS 8550 (5th Cir. Miss. 1990).

Certificate of acknowledgment of a deed is presumed to state the truth. Arnold v. Byrd, 222 So. 2d 410, 1969 Miss. LEXIS 1535 (Miss. 1969).

In a suit against a notary and his surety for affixing a false notarial certificate of acknowledgment to a deed of trust, proof of the value of the land described in the deed, the amount of prior liens, the fact that security was ample to enable the plaintiff to collect the balance on the note if the deed had been a valid instrument, and that he was otherwise unable to collect, supported a finding that the false notarial certificate was the proximate cause of the plaintiff’s damages when default occurred on the note. King v. State, 222 So. 2d 393, 1969 Miss. LEXIS 1531 (Miss. 1969).

A judgment enrolled on January 3, 1961, within 20 days after its rendition, did not relate back to the date of its rendition, December 13, 1960, to give the judgment creditor a specific lien on property which the judgment debtor had conveyed to third parties on November 29, 1960, the deed being filed for record on December 14, 1960. Herrington v. Heidelberg, 244 Miss. 364, 141 So. 2d 717, 1962 Miss. LEXIS 456 (Miss. 1962).

A recorded deed of trust, containing an erroneous description of the land conveyed by the grantor, which recited that the land in question contained 60 acres more or less, whereas the grantor only owned 40 acres, was not sufficient to put the grantor’s judgment creditors on notice that an entirely different tract of land was intended to be included, and did not give notice of a description which a diligent search of the records might have disclosed as to other lands belonging to the grantor, so that while the grantee was entitled to a reformation of a trust deed as against the grantor, he was not so entitled as against the judgment creditors, who had executed on the lands actually owned by the grantor. Mississippi Industries for Blind v. Jackson, 231 Miss. 135, 95 So. 2d 109, 1957 Miss. LEXIS 496 (Miss. 1957).

The record of a deed of trust is sufficient to charge creditors and subsequent purchasers with constructive notice of its existence, notwithstanding an error in the description, whenever it is apparent what the error is and the description is such as reasonably to enable creditors and subsequent purchasers to find the land. Burkett v. Peoples Bank of Biloxi, 225 Miss. 291, 83 So. 2d 185, 1955 Miss. LEXIS 688 (Miss. 1955).

Purchaser of land for value from owner of record, who goes into possession of land without actual notice of any claims against land, does not have constructive notice of existing recorded trust deed upon land executed by grantee in unrecorded deed from purchaser’s grantor, and purchaser is entitled to have trust deed cancelled as cloud on his title. Morgan v. Mars, 207 Miss. 848, 43 So. 2d 563, 1949 Miss. LEXIS 395 (Miss. 1949).

Abstractor is not required to search all of records in order to see whether or not some outsider, unknown to records, has conveyed property to some other person; he may safely assume title to be in party shown by records to have title. Morgan v. Mars, 207 Miss. 848, 43 So. 2d 563, 1949 Miss. LEXIS 395 (Miss. 1949).

Actual possession by the owner of land or his tenants, not actual knowledge of such possession, is all of the notice necessary to overcome priority of filing for record. Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So. 2d 100, 1947 Miss. LEXIS 399 (Miss. 1947).

Deed of trust on personal property immediately taken to county of buyer’s residence not constructive notice to subsequent purchaser for value unless recorded in such county. McLarty v. Ashmore, 128 Miss. 735, 91 So. 421, 1922 Miss. LEXIS 161 (Miss. 1922).

Purchase of property in the name of one person while another pays purchase price results in trust in favor of party paying, and such property cannot be sold under execution. Cannon v. Holburg Mercantile Co., 108 Miss. 102, 66 So. 400, 1914 Miss. LEXIS 177 (Miss. 1914).

Purchaser of property covered by deed of trust which refers to notes secured thereby, chargeable with notice that notes provided for attorney’s fee. Turberville v. Simpson, 94 Miss. 154, 47 So. 784 (Miss. 1908).

The purchaser of land where the record shows a good title is not bound to look beyond the record to a former occupancy. Hiller v. Jones, 66 Miss. 636, 6 So. 465, 1889 Miss. LEXIS 158 (Miss. 1889).

OPINIONS OF THE ATTORNEY GENERAL

The filing of a deed in the wrong judicial district within a county that has two judicial districts is void as to all creditors and subsequent purchasers for valuable consideration without notice, but valid between the parties and their heirs. Garner, Oct. 5, 2001, A.G. Op. #01-0628.

RESEARCH REFERENCES

ALR.

Record of instrument which comprises or includes an interest or right that is not a proper subject of record. 3 A.L.R.2d 577.

Agreement between real-estate owners restricting use of property as within contemplation of recording laws. 4 A.L.R.2d 1419.

Coverage of “nonrecording” or “nonfiling” insurance against loss from failure to record chattel mortgage, conditional sale, or other security instrument. 51 A.L.R.2d 325.

Priority, as between holder of unfiled or unrecorded chattel mortgage who secures possession of goods or chattels, and subsequent purchaser or encumbrancer. 53 A.L.R.2d 936.

Discharge of mortgage and taking back of new mortgage as affecting lien intervening between old and new mortgages. 43 A.L.R.5th 519.

Priority between mechanics’ liens and advances made under previous executed mortgage. 80 A.L.R.2d 179.

Am. Jur.

55 Am. Jur. 2d, Mortgages §§ 138-141.

21 Am. Jur. Pl & Pr Forms (Rev), Records and Recording Laws, Forms 1 et seq.

CJS.

59 C.J.S., Mortgages §§ 257 et seq.

76 C.J.S., Records, §§ 37-40.

Law Reviews.

The effect of bankruptcy and encumbrances on mineral interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

Cross References —

Protection of paramount rights in partition proceedings, see §11-21-41.

Protection of mortgagees by fire insurance policy in order of priority, see §83-13-7.

Recording of powers of appointment, see §91-15-15.

Crime of selling encumbered property without notice of encumbrance to vendee, see §97-19-51.

JUDICIAL DECISIONS

1. In general.

2. Clerical errors; incomplete or incorrect instruments.

3. Priority of recording.

4. Vesting of title.

5. What constitutes actual knowledge.

6. Mechanic’s and materialman’s liens.

7. Miscellaneous.

1. In general.

Recordation under this statute gives constructive notice binding upon those subsequently dealing with the land. Smith County Oil Co. v. Jefcoat, 203 Miss. 404, 33 So. 2d 629, 1948 Miss. LEXIS 286 (Miss. 1948).

A nominal consideration, although a good consideration, is not a valuable consideration within the meaning of this statute so as to give a recorded deed for a nominal consideration precedent over an unrecorded prior deed for a valuable consideration. Smith County Oil Co. v. Jefcoat, 203 Miss. 404, 33 So. 2d 629, 1948 Miss. LEXIS 286 (Miss. 1948).

This statute is not displaced by the law of merger. Smith County Oil Co. v. Jefcoat, 203 Miss. 404, 33 So. 2d 629, 1948 Miss. LEXIS 286 (Miss. 1948).

Notice begins moment deed is lodged with proper officer for record, and failure of clerk to mark filed is immaterial. Sowell v. Rankin, 120 Miss. 458, 82 So. 317, 1919 Miss. LEXIS 108 (Miss. 1919).

This section [Code 1942, § 869] applies only to legal and not equitable title. Dedeaux v. Cuevas, 107 Miss. 7, 64 So. 844, 1914 Miss. LEXIS 38 (Miss. 1914).

2. Clerical errors; incomplete or incorrect instruments.

Unsigned recorded deed not notice. Rainey v. Lamb Hardwood Lumber Co., 91 Miss. 690, 45 So. 367, 1907 Miss. LEXIS 178 (Miss. 1907).

Record of deed not notice where acknowledgement omitted word “delivered.” Ligon v. Barton, 88 Miss. 135, 40 So. 555, 1906 Miss. LEXIS 122 (Miss. 1906).

The grantee has done all the law requires of him when he has filed his deed for record, and it will prevail, although the clerk make a mistake in recording it. Mangold v. Barlow, 61 Miss. 593, 1884 Miss. LEXIS 136 (Miss. 1884); Woods v. Garnett, 72 Miss. 78, 16 So. 390, 1894 Miss. LEXIS 89 (Miss. 1894).

3. Priority of recording.

Bank’s mortgage lien against residential property did not have priority over a prior recorded deed of trust against the same property securing a line of credit, since the bank’s payment of the outstanding balance on the line of credit did not cancel the line of credit or the deed of trust, and the deed of trust remained in effect when the term of the line of credit was renewed by agreement. U.S. Bank N.A. v. State Bank & Trust Co., 45 F. Supp. 3d 582, 2014 U.S. Dist. LEXIS 95934 (S.D. Miss. 2014).

Natural justice inexorably weighed against subrogation in favor of appellee because appellant was materially prejudiced by being placed secondary to a lien of a value and between two parties that it never agreed to be behind; when appellant recorded its deed of trust on the property appellee and all other interested parties were put on constructive notice of the existence of that deed of trust, and the failure to discover the deed of trust clearly constituted negligence. Cmty. Trust Bank of Miss. v. First Nat'l Bank of Clarksdale, 150 So.3d 683, 2014 Miss. LEXIS 445 (Miss. 2014).

The fact that the first party waited until well after the second party recorded his deed to the property in question to place on record his own claim barred him, under §89-5-5, from claiming priority of title over property deed. Kelly v. Shoemake, 460 So. 2d 811, 1984 Miss. LEXIS 2019 (Miss. 1984).

The filing of a notice of lis pendens in an action before the recordation of a prior deed is effective to make a judgment recovered against the grantor after such recordation a lien on the property conveyed. Jones v. Jones, 249 Miss. 322, 161 So. 2d 640, 1964 Miss. LEXIS 393 (Miss. 1964).

The deed first filed is presumed, in absence of contrary evidence, to be that first executed. Biglane v. Rawls, 247 Miss. 226, 153 So. 2d 665, 1963 Miss. LEXIS 295 (Miss. 1963).

Execution sale good against prior unrecorded deed. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

Purchasers of land without notice of unrecorded bond for title to way over the land, whose deed is first recorded, acquire an absolute unencumbered title. Wills v. Reid, 86 Miss. 446, 38 So. 793, 1905 Miss. LEXIS 91 (Miss. 1905).

4. Vesting of title.

Title to property vests upon delivery of deed and not when signed and acknowledged. Cannon v. Holburg Mercantile Co., 108 Miss. 102, 66 So. 400, 1914 Miss. LEXIS 177 (Miss. 1914).

5. What constitutes actual knowledge.

Defectively acknowledged deed of trust was ineligible for recordation under §89-5-1, however, fact that it was recorded constituted actual notice to subsequent purchasers of the interest claimed under defective deed of trust such that federal tax lien which attached subsequent to erroneous recordation of defective deed of trust was subordinate thereto. Metropolitan Nat'l Bank v. United States, 716 F. Supp. 946, 1989 U.S. Dist. LEXIS 7664 (S.D. Miss. 1989), rev'd, 901 F.2d 1297, 1990 U.S. App. LEXIS 8550 (5th Cir. Miss. 1990).

Actual possession by the owner of land or his tenants, not actual knowledge of such possession, constitutes actual notice under the registration statutes. Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So. 2d 100, 1947 Miss. LEXIS 399 (Miss. 1947).

Under Code 1942, § 868, taken in connection with this section [Code 1942, § 869], where a trust deed is made to one who fails to record it until after another has received and recorded a trust deed on the same land, the latter having knowledge of the first deed, the purchaser under the last, though having no actual knowledge of the facts, is not protected as against the prior deed, if at the time of his purchase it had been recorded. Woods v. Garnett, 72 Miss. 78, 16 So. 390, 1894 Miss. LEXIS 89 (Miss. 1894).

6. Mechanic’s and materialman’s liens.

When it is shown that the petitioner has a laborer’s lien or materialman’s lien upon property constructed or repaired, those who claim to have superior liens as purchasers or encumbrances for a valuable consideration without notice must specifically and affirmatively plead their lien; for the burden of proof is upon one who claims to be an encumbrancer for value without notice, and he must show facts which will bring such claim within the exceptions set out in Code 1942, § 356. Enterprise Plumbing Co. v. Bailey Mortg. Co., 209 So. 2d 825, 1968 Miss. LEXIS 1474 (Miss. 1968).

Mechanic’s and materialman’s liens for labor performed and materials furnished in connection with installation of fixed machinery and equipment to prepare manufacturing plant for operation has priority over lien of deed of trust executed after mechanic acquired his lien in compliance with prior agreement to secure note by deed of trust on after acquired property in nature of machinery and equipment to be acquired and used in manufacturing business. Buckwalter v. McElroy, 205 Miss. 54, 38 So. 2d 317, 1949 Miss. LEXIS 411 (Miss. 1949).

7. Miscellaneous.

Chancery court properly granted a lender’s successor summary judgment in its action seeking a declaratory judgment that it held a first-priority deed of trust on real property because there was no genuine issue of material fact that the successor had actual knowledge of the defective deed of trust or a beneficiary’s lien; the managing member of the settlement agent for the lender swore that the lender had no knowledge of any other deed of trust. Borries v. Goshen Mortgage, 219 So.3d 593, 2017 Miss. App. LEXIS 276 (Miss. Ct. App. 2017).

To the extent one of a bank’s deeds of trust was secondary to a lienholder’s deed of trust by virtue of the filing date, equitable subrogation applied because the bank’s loan was secured by a corresponding deed of trust for the same property, which was allowed to be pledged by the same person for the debt of a family member’s company and the bank never cancelled its other deeds of trust. Pennington Group, LLC v. PriorityOne Bank, 228 So.3d 880, 2017 Miss. App. LEXIS 59 (Miss. Ct. App.), cert. denied, 229 So.3d 119, 2017 Miss. LEXIS 370 (Miss. 2017).

Chancery court properly found that the foreclosure a lienholder conducted was subject to the first priority lien position of a bank because the bank had a priority lien by virtue of its prior deeds of trust; it would be inequitable to hold that the bank lost its priority lien position to the lienholder, the wife and mother of the debtors to whom the bank showed favor by stopping its foreclosure proceedings and issuing another loan, a loan whose purpose was to refinance a business debt. Pennington Group, LLC v. PriorityOne Bank, 228 So.3d 880, 2017 Miss. App. LEXIS 59 (Miss. Ct. App.), cert. denied, 229 So.3d 119, 2017 Miss. LEXIS 370 (Miss. 2017).

Under Mississippi Recording Act, earlier recorded deed of trust (DOT) would have priority over subsequently recorded DOT unless a subordination provision in the first DOT altered this result or unless equitable subrogation applied, but this could not be determined on motion for summary judgment, as there were disputed issues of material fact. Good Hope Constr., Inc. v. RJB Financing, LLC (In re Grand Soleil-Natchez, LLC), 2013 Bankr. LEXIS 5645 (Bankr. S.D. Miss. Aug. 13, 2013).

Where the trustee in bankruptcy abandoned property owned by the debtor which had brought less than the amount of either of the liens of a chattel mortgagee or judgment creditor when sold, the proceedings in bankruptcy did not affect the rights of the lienholders, and the holder of the judgment lien retained priority to the funds. Brookhaven Bank & Trust Co. v. Gwin, 253 F.2d 17, 1958 U.S. App. LEXIS 4895 (5th Cir. Miss. 1958).

A recorded deed of trust, containing an erroneous description of the land conveyed by the grantor, which recited that the land in question contained 60 acres more or less, whereas the grantor only owned 40 acres, was not sufficient to put the grantor’s judgment creditors on notice that an entirely different tract of land was intended to be included, and did not give notice of a description which a diligent search of the records might have disclosed as to other lands belonging to the grantor, so that while the grantee was entitled to a reformation of a trust deed as against the grantor, he was not so entitled as against the judgment creditors, who had executed on the land actually owned by the grantor. Mississippi Industries for Blind v. Jackson, 231 Miss. 135, 95 So. 2d 109, 1957 Miss. LEXIS 496 (Miss. 1957).

Mortgagee was entitled to priority against a second mortgagee for advancements subsequent to second mortgagee for advancements subsequent to second mortgage only if he did not have actual notice of second mortgage where trust deed provided that all further advances to mortgagee were to be secured as principal of obligation. North v. J. W. McClintock, Inc., 208 Miss. 289, 44 So. 2d 412, 1950 Miss. LEXIS 248 (Miss. 1950).

After notice of attaching a junior lien, the senior mortgagee ordinarily will not be protected in making further advances under his mortgage given to secure such advances, where he was under no binding engagement to make such advances. North v. J. W. McClintock, Inc., 208 Miss. 289, 44 So. 2d 412, 1950 Miss. LEXIS 248 (Miss. 1950).

Where at the time subsequent purchaser acquired title to land he had actual as well as constructive knowledge that the minerals had been reserved in the deed by the original grantor to his vendor, he could not invoke the aid of this section [Code 1942, § 869] on the theory of after acquired title by reason of a quitclaim deed to his vendor from the original grantor for a nominal consideration as against a prior unrecorded conveyance of minerals by the original grantor to a third person for valuable consideration. Smith County Oil Co. v. Jefcoat, 203 Miss. 404, 33 So. 2d 629, 1948 Miss. LEXIS 286 (Miss. 1948).

A subsequent purchaser for valuable consideration after quitclaim deed to his vendor as to whom the original grantor had reserved the mineral rights, without notice of a prior unrecorded conveyance of the minerals from the original grantor to a third person for valuable consideration, acquired fees simple title to the property, notwithstanding that his vendor, having paid only a nominal consideration for the quitclaim deed, could not have invoked the benefits of this statute. Smith County Oil Co. v. Jefcoat, 203 Miss. 404, 33 So. 2d 629, 1948 Miss. LEXIS 286 (Miss. 1948).

This section [Code 1942, § 869] and Code 1942, §§ 867 and 868 are inapplicable where a grantee accepts a conveyance of certain mineral interests, which conveyance is expressly made subject to any valid and subsisting leases and further obligates the grantor to permit the grantee to receive half of the benefits accruing or to accrue under such leases. Gulf Refining Co. v. Harrison, 201 Miss. 294, 30 So. 2d 44, 1947 Miss. LEXIS 397 (Miss. 1947).

Failure to record security for debt because of inattention or agreement without purpose to give grantor fictitious credit, is not fraudulent as to grantor’s creditors. Robertson & Co. v. Columbus Ins. & Banking Co., 85 Miss. 234, 38 So. 100 (Miss. 1904).

A municipal tax deed, not filed as per §§ 3028 and 3823 of the Code of 1982 (§§ 3433 and 4338 Code 1906), must be excluded under this section [Code 1942, § 869]. Sintes v. Barber, 78 Miss. 585, 29 So. 403, 1900 Miss. LEXIS 156 (Miss. 1900).

Section89-5-19, which reverses the usual “race/notice” priority rule set out in §89-5-5 in the situation when a creditor takes a position secured by a lien on real property at a time when an earlier creditor’s lien on the same property appears on the face of the public record to be time-barred, establishes an exception to the “race/notice” scheme, not a statute of limitations. Barhorst v. Armstrong, 42 F. 2, 1890 U.S. App. LEXIS 2098 (C.C.D. Ohio 1890).

RESEARCH REFERENCES

ALR.

Attachment, garnishment, execution, or similar process in action on note or bond, not resulting in sale of mortgaged property, as precluding foreclosure of real-estate mortgage. 37 A.L.R.2d 959.

Am. Jur.

66 Am. Jur. 2d, Records and Recording Laws §§ 133 et seq.

13 Am. Jur. Proof of Facts, Delivery of Deeds, § 21 (recordation of deed as evidence of delivery).

CJS.

76 C.J.S., Records § 20.

Law Reviews.

The effect of bankruptcy and encumbrances on mineral interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

Cross References —

When a lost record shall cease to provide constructive notice, see §25-55-31.

Necessity of acknowledgment or proof for recording of instrument, see §89-3-1.

JUDICIAL DECISIONS

1. In general.

Natural justice inexorably weighed against subrogation in favor of appellee because appellant was materially prejudiced by being placed secondary to a lien of a value and between two parties that it never agreed to be behind; when appellant recorded its deed of trust on the property appellee and all other interested parties were put on constructive notice of the existence of that deed of trust, and the failure to discover the deed of trust clearly constituted negligence. Cmty. Trust Bank of Miss. v. First Nat'l Bank of Clarksdale, 150 So.3d 683, 2014 Miss. LEXIS 445 (Miss. 2014).

Court construed Miss. Code §89-5-7 to mean that contract relating to land is not automatically binding on subsequent purchasers, but one can bind subsequent purchasers by recording contract, without which, contract will not be binding. Buras v. Shell Oil Co., 666 F. Supp. 919, 1987 U.S. Dist. LEXIS 7636 (S.D. Miss. 1987).

U.S. revenue laws making invalid unstamped written instrument do not render unstamped deed unrecordable. Sowell v. Rankin, 120 Miss. 458, 82 So. 317, 1919 Miss. LEXIS 108 (Miss. 1919).

A recital in a deed of trust to secure a part of the purchase money of land that the vendor’s lien for the remaining portion of the purchase money is to remain unimpaired, is not a contract within the meaning of the section [Code 1942, § 862]. Mairs v. Bank of Oxford, 58 Miss. 919, 1877 Miss. LEXIS 94 (Miss. 1877).

A power of attorney to sell and convey land is a contract within this section [Code 1942, § 862]. Hughes v. Wilkinson's Lessee, 37 Miss. 482, 1859 Miss. LEXIS 42 (Miss. 1859).

RESEARCH REFERENCES

ALR.

Agreement between real-estate owners restricting use of property as within contemplation of recording laws. 4 A.L.R.2d 1419.

Am. Jur.

66 Am. Jur. 2d, Records and Recording Laws § 47.

Amendment Notes —

The 2013 amendment added (2) and redesignated former (2) as (3).

Cross References —

Forgery of records, see §97-21-45.

Cross References —

Records of land office, see §§7-11-13 et seq.

Land office certificates as evidence, see §13-1-131.

Conveyances of land by state by means of patents, see §29-1-81.

Amendment Notes —

The 1999 amendment rewrote the section.

JUDICIAL DECISIONS

1. In general.

2. Fraud.

1. In general.

Chancery court erred in relying on Miss. Code Ann. §89-5-13 to find that two deeds were effective on the dates reflected in the acknowledgments, without addressing uncontradicted testimony regarding the intent of the parties or considering when the deeds were delivered and accepted. Morrow v. Morrow, 129 So.3d 142, 2013 Miss. LEXIS 546 (Miss. 2013).

Section 89-5-13 is a curative statute for deeds with defective acknowledgements, and therefore did not cure a deed’s total lack of acknowledgement. Greenlee v. Mitchell, 607 So. 2d 97, 1992 Miss. LEXIS 483 (Miss. 1992).

Section 89-5-13, a purely curative statute for a deed which has been of record for 20 years with a defect in the acknowledgment, had no bearing or relevance to the issue of whether the signature on a deed was authorized, and did not create a presumption that it was. Goodwin v. McMurphy, 435 So. 2d 639, 1983 Miss. LEXIS 2617 (Miss. 1983).

2. Fraud.

The statute does not operate to sanction fraud, but rather is a curative statute for deeds with defective acknowledgments, and, therefore, does not apply to a forged deed. King v. King, 760 So. 2d 830, 2000 Miss. App. LEXIS 237 (Miss. Ct. App. 2000).

Cross References —

Recording assignment of secured transaction under Uniform Commercial Code, see §75-9-405.

Assignment of notes or other writings, see §75-13-1.

JUDICIAL DECISIONS

1. In general.

The fact of the assignment is all that is required under this section [Code 1942, § 871] to be entered on the margin of the record of the lien, and it is not required that in case of a partnership a name or the names of the partners shall be stated. Frierson Bldg. Supply Co. v. Pritchard, 253 Miss. 541, 176 So. 2d 301, 1965 Miss. LEXIS 1011 (Miss. 1965).

Assignment by Federal Farm Mortgage Corporation of note and deed of trust in favor of land bank commissioner is effective transfer, as note and deed of trust became property of Federal Farm Mortgage Corporation under Federal Farm Mortgage Corporation Act, 12 USCS § 1020b. Triplett v. Bridgforth, 205 Miss. 328, 38 So. 2d 756, 1949 Miss. LEXIS 434 (Miss. 1949).

Tax sale of land which was void as to city, holding a lien on the land by virtue of having made a loan and having accepted assignment of a deed of trust to the land as security therefor, as authorized by law, for the reason that the chancery clerk’s notation on record did not show that notice of the tax sale was sent by registered mail to the city as required by statute, did not impair or destroy the city’s right subsequently to convey the land, or affect the rights of its grantees. Pace v. Wedgeworth, 198 Miss. 1, 20 So. 2d 842, 1945 Miss. LEXIS 162 (Miss. 1945).

Assignment of note and trust deed, entered on the bottom of the trust deed on the record together with a certificate or attestation signed by the clerk stating that the assignment had been filed and recorded was valid under this section [Code 1942, § 871]. Pace v. Wedgeworth, 198 Miss. 1, 20 So. 2d 842, 1945 Miss. LEXIS 162 (Miss. 1945).

Appointment of substitute trustee by assignee of debt valid, though assignment not noted on record. Scruggs v. Northern, 123 Miss. 169, 85 So. 89, 1920 Miss. LEXIS 15 (Miss. 1920).

Assignment of debt, though in form of deed of trust, may be noted on deed of trust record. West v. Union Naval Stores Co., 116 Miss. 743, 77 So. 609, 1917 Miss. LEXIS 347 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Conflict of laws as to application of statute proscribing or limiting availability of action for deficiency after sale of collateral real estate. 44 A.L.R.3d 922.

Cross References —

Assignments of notes or other instruments of indebtedness, see §75-13-1.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 872] does not apply to negotiable instruments. Hughes v. Kaw Inv. Co., 133 Miss. 48, 97 So. 465, 1923 Miss. LEXIS 111 (Miss. 1923); Schwartz v. Smith, 134 Miss. 594, 99 So. 436, 1924 Miss. LEXIS 308 (Miss. 1924).

Appointment of substitute trustee by assignee of debt valid, though assignment not noted on record. Scruggs v. Northern, 123 Miss. 169, 85 So. 89, 1920 Miss. LEXIS 15 (Miss. 1920).

Cross References —

Limitation of actions upon mortgages and deeds of trust generally, see §§15-1-1 et seq.

Payment extinguishing mortgage, see §89-1-49.

JUDICIAL DECISIONS

1. In general.

2. Persons and interests protected.

3. Renewal of mortgage.

4. Miscellaneous.

1. In general.

This section [Code 1942, § 875] has no application to judgment liens. Street v. Smith, 85 Miss. 359, 37 So. 837, 1904 Miss. LEXIS 159 (Miss. 1904).

Where the debtor in a trust deed dies before the debt is barred, this section [Code 1942, § 875] does not prevent extension for one year of time to sue, provided for by another statutory provision. Klaus v. Moore, 77 Miss. 701, 27 So. 612, 1900 Miss. LEXIS 16 (Miss. 1900).

This section [Code 1942, § 875] has no application to renewals or extensions made before it went into effect. Drane v. Newsom, 73 Miss. 422, 19 So. 200, 1895 Miss. LEXIS 144 (Miss. 1895).

2. Persons and interests protected.

Where note secured by deed of trust was extended from time to time, but fact of extensions was not noted on margin of record of deed of trust before remedy to enforce it appeared on face of record to be barred, or within six months thereafter, such extensions did not affect rights of subsequent creditors without notice of extensions. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

That junior lien attached before bar of limitations attached to prior deed of trust did not affect right of junior lienor’s transferees who purchased for valuable consideration the note and security and had no notice that lien had not been extinguished, and parted with something of value, and hence became “creditors” or “subsequent purchasers” within statute providing that recorded lien should have no effect as to creditors and subsequent purchasers where remedy thereof was barred by limitation. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

“Creditor” or “subsequent purchaser” within statute is person who has parted with something of value on appearance of record, so that apparent bar cannot be availed of by one who became junior lienor before bar attached, and while notice imparted by recorded instrument was in full force. Richter Phillips Co. v. Phillips, 175 Miss. 242, 166 So. 393, 1936 Miss. LEXIS 26 (Miss. 1936).

Person who became judgment creditor of mortgagor before bar of limitations against enforcement of lien by mortgagee appeared of record held not “creditor” or “subsequent purchaser” within statute. Richter Phillips Co. v. Phillips, 175 Miss. 242, 166 So. 393, 1936 Miss. LEXIS 26 (Miss. 1936).

This section [Code 1942, § 875] protects only creditors and purchasers who parted with something of value on faith of the appearance of the record. Klaus v. Moore, 77 Miss. 701, 27 So. 612, 1900 Miss. LEXIS 16 (Miss. 1900).

3. Renewal of mortgage.

Where mortgaged property conveyed by mortgagor, subsequent renewal of mortgage does not relieve property of prior lien. Smith v. Childress, 119 Miss. 20, 80 So. 345, 1918 Miss. LEXIS 4 (Miss. 1918).

Renewal of first mortgage does not render lien of same subordinate to that of a second mortgage. Bank of Lexington v. Cooper, 115 Miss. 782, 76 So. 659, 1917 Miss. LEXIS 264 (Miss. 1917).

4. Miscellaneous.

Where senior mortgage and notes secured thereby were barred, neither junior mortgagee nor one claiming under him was bound to know any facts not of record, nor estopped to claim priority, nor to assert that attempted revival of senior mortgage was void. Musser v. First Nat'l Bank, 165 Miss. 873, 147 So. 783, 1933 Miss. LEXIS 311 (Miss. 1933).

Where no effort was made to renew or extend notes or mortgage securing them until after notes were barred, right and remedy as to notes and mortgage were barred, and could not be revived. Musser v. First Nat'l Bank, 165 Miss. 873, 147 So. 783, 1933 Miss. LEXIS 311 (Miss. 1933).

Statute held not available to one giving deed of trust or note. Mason v. Stroud, 155 Miss. 829, 125 So. 408, 1930 Miss. LEXIS 122 (Miss. 1930).

Writ of garnishment could not be issued on old judgment after seven years, though suit on judgment was commenced before seven years expired. Buckley v. F. L. Riley Mercantile Co., 155 Miss. 150, 124 So. 267, 1929 Miss. LEXIS 268 (Miss. 1929).

Trustee’s deed to purchaser showing on its face that sale was made after it was barred by statute of limitation held valid, where marginal reference was made within 6 months showing renewal of original indebtedness. McBride v. Burgin, 142 Miss. 859, 108 So. 148, 1926 Miss. LEXIS 137 (Miss. 1926).

In a mortgagee’s declaratory judgment action, seeking subordination or extinguishment of 2 Small Business Administration liens against the mortgaged property, Mississippi law (§89-5-19) would be applied as the federal rule for establishing the relative priority of competing federal and private liens. Barhorst v. Armstrong, 42 F. 2, 1890 U.S. App. LEXIS 2098 (C.C.D. Ohio 1890).

OPINIONS OF THE ATTORNEY GENERAL

In searching the records to determine the names and address of mortgagees pursuant to the mandatory provisions of Section 27-43-5, a clerk may rely upon the provisions of Section 89-5-19; he may consider as barred any lien which as of the date of the search appears to have been barred pursuant to the applicable statute of limitation at least six months prior to the date of the search for the debt secured thereby; and he need not give notice of the maturity of a tax sale to any mortgagee whose lien appears to be barred. McAdams, Feb. 18, 2000, A.G. Op. #2000-0055.

RESEARCH REFERENCES

ALR.

Reinstatement and restoration of mortgages released or discharged without authorization, as against subsequent purchasers, lienholders, judgment creditors, and the like, without notice. 35 A.L.R.2d 948.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions § 29.

CJS.

54 C.J.S., Limitation of Actions §§ 17, 52, 71 et seq.

Amendment Notes —

The 1999 amendment deleted former (2) through (5), and redesignated the remaining subsections accordingly; and added (4).

The 2000 amendment substituted “subsections (3), (4) and (5)” for “section” in (1); and inserted (3) and redesignated former (3) and (4) as present (4) and (5).

Cross References —

Extinguishment of mortgage or deed of trust, see §89-1-49.

Acknowledgment of satisfaction by trustee, see §89-1-51.

JUDICIAL DECISIONS

1. In general.

2. Recovery of penalty.

3. Miscellaneous.

1. In general.

Statute providing penalty for failure to cancel mortgage after payment is penal and strictly construed against party aggrieved. Brown v. Yarbrough, 130 Miss. 715, 94 So. 887, 1922 Miss. LEXIS 246 (Miss. 1922).

Section [Code 1942, § 876] applies to deeds of trust on personalty. Coon v. Robinson Mercantile Co., 110 Miss. 700, 70 So. 884, 1916 Miss. LEXIS 192 (Miss. 1916).

Action may be brought under this section [Code 1942, § 876] although mortgage in describing property gave lot number and addition but omitted block number. Pierce v. Kingston Lumber Co., 90 Miss. 216, 43 So. 81, 1907 Miss. LEXIS 40 (Miss. 1907).

The case must fall literally within the act. British & American Mortg. Co. v. Burke, 80 Miss. 643, 32 So. 51, 1902 Miss. LEXIS 291 (Miss. 1902).

The right to the penalty prescribed by this section [Code 1942, § 876] depends upon strict compliance with the statute. Requests which are not literally correct will not support an action for failure to acknowledge satisfaction of the mortgage. British & American Mortg. Co. v. Burke, 80 Miss. 643, 32 So. 51, 1902 Miss. LEXIS 291 (Miss. 1902); Lutz v. Hartman Mercantile Co., 41 So. 1039 (Miss. 1906).

2. Recovery of penalty.

Under statute mortgagor could recover actual damages for delay, and additional penalty where failure to cancel was due to mortgagee’s gross negligence. Dawkins v. Federal Land Bank, 170 Miss. 701, 155 So. 166, 1934 Miss. LEXIS 142 (Miss. 1934).

Whether delay in cancellation was due to request of plaintiff held for jury. Dawkins v. Federal Land Bank, 170 Miss. 701, 155 So. 166, 1934 Miss. LEXIS 142 (Miss. 1934).

Cestui que trust not cancelled in trust deed on request believing clerk would cancel it, on presenting cancelled note, held not subject to penalty. Johns v. Ferguson, 153 Miss. 807, 121 So. 485, 1929 Miss. LEXIS 76 (Miss. 1929).

Statement held not sufficient request for cancellation to authorize recovery of penalty. Freeman v. McCormick Motorcar Co., 153 Miss. 474, 121 So. 138, 1929 Miss. LEXIS 49 (Miss. 1929).

Where crops grown on rented land were delivered to mortgagor with landlord’s consent, in payment of debt, mortgagor was liable for failure to enter satisfaction on margin of record. Coon v. Robinson Mercantile Co., 110 Miss. 700, 70 So. 884, 1916 Miss. LEXIS 192 (Miss. 1916).

3. Miscellaneous.

To the extent one of a bank’s deeds of trust was secondary to a lienholder’s deed of trust by virtue of the filing date, equitable subrogation applied because the bank’s loan was secured by a corresponding deed of trust for the same property, which was allowed to be pledged by the same person for the debt of a family member’s company and the bank never cancelled its other deeds of trust. Pennington Group, LLC v. PriorityOne Bank, 228 So.3d 880, 2017 Miss. App. LEXIS 59 (Miss. Ct. App.), cert. denied, 229 So.3d 119, 2017 Miss. LEXIS 370 (Miss. 2017).

Chancery court properly found that the foreclosure a lienholder conducted was subject to the first priority lien position of a bank because the bank had a priority lien by virtue of its prior deeds of trust; it would be inequitable to hold that the bank lost its priority lien position to the lienholder, the wife and mother of the debtors to whom the bank showed favor by stopping its foreclosure proceedings and issuing another loan, a loan whose purpose was to refinance a business debt. Pennington Group, LLC v. PriorityOne Bank, 228 So.3d 880, 2017 Miss. App. LEXIS 59 (Miss. Ct. App.), cert. denied, 229 So.3d 119, 2017 Miss. LEXIS 370 (Miss. 2017).

Company acquiring through mesne conveyances realty sold by insane person’s guardian after releases thereof by court orders from recorded trust deed substituted for trust deeds, released on record by trustees, as security for loan of ward’s funds to guardian, held without constructive notice of such instruments and hence not liable for balance due ward from guardian, where substituted deed erroneously described property. Pan-American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803, 1934 Miss. LEXIS 76 (Miss. 1934).

Where appellee objected below to introduction of trust deed releases because not made exhibits to answer on cross-bill, objection that no entry was made on margin of record held unavailable in supreme court. Hardin v. West, 163 Miss. 839, 143 So. 697, 1932 Miss. LEXIS 94 (Miss. 1932).

Title of assignees of second trust deed held dependent upon validity of fraudulent cancellation of first trust deed by trustee. Eagle Lumber & Supply Co. v. De Weese, 163 Miss. 602, 135 So. 490, 1931 Miss. LEXIS 4 (Miss. 1931).

Where trustee in trust deed satisfied trust deed on record and took second trust deed, payable to himself and assigned latter to secure his individual indebtedness, assignees were charged constructively with notice that second trust deed omitted name of real beneficiary. Eagle Lumber & Supply Co. v. De Weese, 163 Miss. 602, 135 So. 490, 1931 Miss. LEXIS 4 (Miss. 1931).

Cancellation of mortgage without attestation by clerk held not constructive notice. Felt v. Covington, 134 Miss. 466, 99 So. 1, 1924 Miss. LEXIS 272 (Miss. 1924).

Statement at beginning of tax deed that “I, Lent I. Rice, the tax collector of the county of Tallahatchie, did” sell the land, not a signature of deed. Rainey v. Lamb Hardwood Lumber Co., 91 Miss. 690, 45 So. 367, 1907 Miss. LEXIS 178 (Miss. 1907).

RESEARCH REFERENCES

ALR.

Requiring security as condition of canceling of record mortgage or lien, or of recording payment. 2 A.L.R.2d 1064.

Damages recoverable for real-estate mortgagee’s refusal to discharge mortgage or give partial release therefrom. 8 A.L.R.4th 853.

Am. Jur.

55 Am. Jur. 2d, Mortgages §§ 404, 420 et seq.

13 Am. Jur. Legal Forms 2d, Mortgages § 179:579.1.

CJS.

59 C.J.S., Mortgages §§ 593 et seq.

Law Reviews.

The effect of bankruptcy and encumbrances on mineral interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

Editor’s Notes —

Laws of 2008, ch. 508, § 3, provides:

“SECTION 3. This act shall take effect and be in force from and after July 1, 2009.”

Amendment Notes —

The 2011 amendment effective from and after July 1, 2012, substituted “ten (10) point” for “eight (8) point” in (1)(b); rewrote (2)(a); and deleted former (2)(d) and (e), which read: “All grantors’ names” and “All grantees’ names; and redesignated former (2)(f) and (g) as present (2)(d) and (e).”

The 2014 amendment added “the name, mailing address and telephone number” following “prepared the document” in (2)(a).

Editor’s Notes —

Laws of 2008, ch. 508, § 3, provides:

“SECTION 3. This act shall take effect and be in force from and after July 1, 2009.”

Amendment Notes —

The 2008 amendment added (4).

Cross References —

Duties of chancery clerk generally, see §§9-5-135,9-5-137.

Lost records, see §§25-55-1 et seq.

Recording of releases of powers of appointment, see §91-15-17.

JUDICIAL DECISIONS

1. In general.

2. Priority.

1. In general.

Looseleaf book held “well-bound book” within statute. Richardson v. Woolard, 133 Miss. 417, 97 So. 808, 1923 Miss. LEXIS 156 (Miss. 1923).

2. Priority.

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found, thus, because the judgment creditors’ liens were filed before the refinancing mortgage was filed, and they attached upon the property being reconveyed from the minor back to the debtor, under Miss. Code Ann. §§89-5-3,89-5-25, the bank was last in priority. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

RESEARCH REFERENCES

ALR.

Negligence in preparing abstract of title as ground of liability to one other than person ordering abstract. 50 A.L.R.4th 314.

JUDICIAL DECISIONS

1. In general.

Recordation of real estate mortgages and deed of trust of land in the chattel deed records is ineffectual. Seal v. Anderson, 235 Miss. 249, 108 So. 2d 864, 1959 Miss. LEXIS 422 (Miss. 1959).

Recording appointment of substituted trustee in deed book instead of mortgage records held a compliance with statute. Camp v. Celtic Land & Improv. Co., 129 Miss. 417, 91 So. 897, 1922 Miss. LEXIS 30 (Miss. 1922).

RESEARCH REFERENCES

ALR.

Negligence in preparing abstract of title as ground of liability to one other than person ordering abstract. 50 A.L.R.4th 314.

Am. Jur.

55 Am. Jur. 2d, Mortgages §§ 404, 420 et seq.

CJS.

59 C.J.S., Mortgages §§ 257 et seq.

Editor’s Notes —

Former section 89-5-31 provided for the indexing of mortgages and deeds of trust on land. Similar provisions may now be found in section 89-5-33.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in subsection (3). In the third sentence of (3), an apparent typographical error was corrected by substituting “determined by such survey or other person” for “determined by such survey or other person.” The Joint Committee ratified the correction at its April 26, 2001, meeting.

Subsequently a publishing error was corrected by substituting the word “surveyor” for “survey” so that the phrase read “determined by such surveyor or other person.”

Editor’s Notes —

Laws of 1993, ch. 546, § 3, effective January 1, 1994, provides as follows:

“SECTION 3. Nothing in this act shall be construed to require chancery clerks to alter records filed prior to January 1, 1994, nor shall this act be construed to affect land titles prior to January 1, 1994.”

Amendment Notes —

The 2008 amendment inserted “and every person who prepares a deed of trust” near the beginning of (3).

The 2009 amendment added the seventh sentence in (3).

Cross References —

Filing of brownfield agreements, see §49-35-17.

Persons who for compensation write deeds of conveyance, deeds of trust, mortgages or contracts, or make or certify abstracts of title to certain real estate, held to be engaged in the practice of law, see §73-3-55.

Recording of release of power of appointment, see §91-15-17.

JUDICIAL DECISIONS

1. Conflict between indices.

2. Validity.

1. Conflict between indices.

Summary judgment was properly awarded to a bank in a company’s suit alleging that it was a bona fide purchaser of property for value without notice of the bank’s deed of trust because under Miss. Code Ann. §89-5-33(2), the company had a duty to search the general index, as it prevailed over an incorrect entry in the sectional index. Alamac LLC v. Travelers Bank & Trust, 941 So. 2d 219, 2006 Miss. App. LEXIS 711 (Miss. Ct. App. 2006).

2. Validity.

Grant of summary judgment in favor of the neighbors in their action against other neighbors to have fences removed was appropriate under Miss. Code Ann. §89-5-33(3) because the misnomer in the original deed transfer did not invalidate the restrictive covenants, and even if it had, the developer followed the necessary steps to correct the defect; accordingly, the other neighbors’ argument that the deed transfers were invalid was without merit. Journeay v. Berry, 953 So. 2d 1145, 2007 Miss. App. LEXIS 228 (Miss. Ct. App. 2007).

OPINIONS OF THE ATTORNEY GENERAL

Statute does not require cancellations or assignments of deed of trust to bear legal description but it does require that any person who prepares an instrument “utilizing an existing description” to include an indexing instruction for sectional index. Amos, March 2, 1994, A.G. Op. #94-0070.

Chancery Clerk of county could use proposed parcel numbers system as official sectional index of county without being in violation of Section 89-5-33. O’Beirne, March 9, 1994, A.G. Op. #93-0971.

Chancery Clerk should not refuse to accept for recording instrument that does not have information required under 89-5-33(3) and no penalty should be imposed for accepting it. Thomas, March 9, 1994, A.G. Op. #94-0016.

Indexing information does not have to be part of legal description and can be stated in separate part of instrument or as exhibit. Thomas, March 9, 1994, A.G. Op. #94-0016.

If the records of the Chancery Clerk’s Office are stored electronically and there is therefore no book and page, they may be assigned a properly indexed unique identifier which will make them readily accessible to the general public; such records must be cross-referenced as required by Section 89-5-33 and, also, any electronically maintained records must be accessible to the public in accordance with the Public Records Act. McAdams, Jan. 10, 2003, A.G. Op. #02-0760.

Cross References —

Conveyances by masters, commissioners, sheriffs and constables, see §89-1-27.

Forms of conveyances by sheriffs, constables, or persons acting in representative or official character, see §§89-1-65,89-1-67.

Cross References —

Application of the exceptions provided in this section to the requirement that transfers of record-debts be noted on the record, see §89-5-15.

Application of the exceptions provided in this section to the requirement that assignments of indebtedness be marked on the record, see §89-5-17.

JUDICIAL DECISIONS

1. In general.

Prohibition against notice by an improperly recorded deed of trust applies to constructive notice only and would not prevent actual notice. Borries v. Goshen Mortgage, 219 So.3d 593, 2017 Miss. App. LEXIS 276 (Miss. Ct. App. 2017).

Beneficiary deed of trust was not void because it identified the note, date of the note, and payment schedule, and thus, the beneficiary could, with simple review, have been reasonably certain. Borries v. Goshen Mortgage, 219 So.3d 593, 2017 Miss. App. LEXIS 276 (Miss. Ct. App. 2017).

Chancery court properly granted a lender’s successor summary judgment in its action seeking a declaratory judgment that it held a first-priority deed of trust on real property because there was no genuine issue of material fact that the successor had actual knowledge of the defective deed of trust or a beneficiary’s lien; the managing member of the settlement agent for the lender swore that the lender had no knowledge of any other deed of trust. Borries v. Goshen Mortgage, 219 So.3d 593, 2017 Miss. App. LEXIS 276 (Miss. Ct. App. 2017).

District court did not err in finding that Mortgage Electronic Registration Systems, Inc. (MERS), validly assigned the deed of trust on the homeowners’ home to the lender, which in turned assigned the home to another lender, the company that ultimately sold the homeowners’ home via foreclosure sale; under governing state law, the appellate court therefore must enforce the clear terms of the deed of trust that empowered MERS to make subsequent assignments. Burton v. Nationstar Mortg., LLC, 642 Fed. Appx. 422, 2016 U.S. App. LEXIS 5890 (5th Cir. Miss. 2016).

Tenant’s goods and chattels, which he conveyed by recorded trust deed to trustee as security for indebtedness to decedent’s estate, held subject to payment of rent, where landlord had no actual notice of such deed, which did not sufficiently disclose beneficiary to constitute constructive notice of its contents, and tenant represented throughout that goods were free from any lien. Life Ins. Co. v. Page, 178 Miss. 287, 172 So. 873, 1937 Miss. LEXIS 206 (Miss. 1937).

Recorded trust deed, conveying chattels to trustee as security for indebtedness to estate of named decedent, did not sufficiently disclose beneficiary to constitute constructive notice of its contents. Life Ins. Co. v. Page, 178 Miss. 287, 172 So. 873, 1937 Miss. LEXIS 206 (Miss. 1937).

Evidence held not to sustain finding that named mortgagee was not beneficiary as required for record to constitute notice defeating lien of mortgagor’s trustee. National Stockyards Nat'l Bank v. Isaacs, 146 Miss. 369, 112 So. 1, 1927 Miss. LEXIS 235 (Miss. 1927).

Cross References —

Admissibility in evidence of certified copies of records, see §§13-1-77 et seq.

Cross References —

Criminal penalty for failure to perform duty, see §97-11-37.

Cross References —

Place of sale under execution, see §13-3-161.

Sales under deeds of trust or mortgages generally, see §89-1-55.

JUDICIAL DECISIONS

1. In general.

2. Right to appoint substituted trustee.

3. Recording of appointment of substituted trustee.

4. Effect of void sale.

5. Miscellaneous.

1. In general.

Recording means copying instrument into public records in book kept for purpose by or under superintendence of officer therefor. White v. Stennis, 151 Miss. 765, 118 So. 902, 1928 Miss. LEXIS 377 (Miss. 1928).

Sale under trust deed by substituted trustee is void unless appointment recorded in chancery clerk’s office in county of land’s situs. Camp v. Celtic Land & Improv. Co., 129 Miss. 417, 91 So. 897, 1922 Miss. LEXIS 30 (Miss. 1922).

Substitution must precede sale. Provine v. Thornton, 92 Miss. 395, 46 So. 950, 1908 Miss. LEXIS 253 (Miss. 1908).

Instrument substituting trustee is of record from time delivered to clerk. Brown v. British American Mortg. Co., 86 Miss. 388, 38 So. 312, 1905 Miss. LEXIS 26 (Miss. 1905).

Recording of instrument of substitution contemporaneous with sale complies with law. Brown v. British American Mortg. Co., 86 Miss. 388, 38 So. 312, 1905 Miss. LEXIS 26 (Miss. 1905).

Failure to record substitution before sale renders sale void, though duly recorded thereafter. Hyde v. Hoffman, 31 So. 415 (Miss. 1902).

A sale of land under a deed of trust made by a duly appointed substituted trustee before his appointment was filed for record, is void, though the appointment was duly filed thereafter. Hyde v. Hoffman, 31 So. 415 (Miss. 1902).

Sale by substituted trustee void unless substitution placed of record before sale. Shipp v. New South Bldg. & Loan Asso., 81 Miss. 17, 32 So. 904, 1902 Miss. LEXIS 112 (Miss. 1902); Polk v. S. S. Dale & Sons, 93 Miss. 664, 47 So. 386, 1908 Miss. LEXIS 130 (Miss. 1908).

Under this section [Code 1942, § 890], the writing appointing a substituted trustee must be of record before a valid sale under a trust deed can be made by him. White v. Jenkins, 79 Miss. 57, 28 So. 570, 1901 Miss. LEXIS 2 (Miss. 1901); Shipp v. New South Bldg. & Loan Asso., 81 Miss. 17, 32 So. 904, 1902 Miss. LEXIS 112 (Miss. 1902).

2. Right to appoint substituted trustee.

The executor of the estate of the mortgagee in a deed of trust is empowered to appoint a substitute trustee where such power was specifically given in the deed trust to the mortgagee or his assignes. White v. Hesdorffer, 202 Miss. 711, 32 So. 2d 442, 1947 Miss. LEXIS 333 (Miss. 1947).

Liquidating agent of insolvent bank held its legal representative within provision of deed of trust giving bank authority to substitute trustee. Stringer v. Price, 143 Miss. 189, 108 So. 431, 1926 Miss. LEXIS 254 (Miss. 1926).

Provision that beneficiary, executor, administrator, or assigns, under his hand and seal, could appoint substitute trustee, did not require substitution under hand and seal of original beneficiary but could be done by assignee. Scruggs v. Northern, 123 Miss. 169, 85 So. 89, 1920 Miss. LEXIS 15 (Miss. 1920).

Provision of deed of trust that beneficiary, assignee, or legal representative might appoint another trustee, where trustee refused to act, gave corporation assignee right to appoint substituted trustee. West v. Union Naval Stores Co., 117 Miss. 153, 77 So. 961, 1918 Miss. LEXIS 160 (Miss. 1918).

The attorney in fact of the beneficiary of a deed of trust cannot appoint a substituted trustee where the deed provides for the appointment “by the beneficiary or any holder of the notes secured or their legal representatives.” Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285, 1904 Miss. LEXIS 40 (Miss. 1904).

3. Recording of appointment of substituted trustee.

Substitution of the trustee under a deed of trust of land should be recorded in the records of mortgages and deeds of trust on land, rather than in the chattel mortgages and deeds of trust records. Seal v. Anderson, 235 Miss. 249, 108 So. 2d 864, 1959 Miss. LEXIS 422 (Miss. 1959).

Placement of the name of the county in the space provided for that of the substituted trustee and the name of the substituted trustee in the space provided for the county in a substitution of trustee in a deed of trust referred to by book and page, there being two pages in the book numbered the same as that specified in the substitution, violated strict compliance with this section [Code 1942, § 890] and probably so deterred the average layman from bidding at a subsequent foreclosure sale as to render the sale voidable. Federal Land Bank v. Collom, 201 Miss. 266, 28 So. 2d 126, 1946 Miss. LEXIS 357 (Miss. 1946).

Where substitution of trustee under trust mortgage was pasted or written on margin of record of mortgage before first notice of foreclosure sale was posted or published, foreclosure by substituted trustee was valid. Federal Land Bank v. McCraney, 171 Miss. 191, 157 So. 248, 1934 Miss. LEXIS 218 (Miss. 1934).

Attorney’s copying substitution of trustees in deed of trust book, neither beneficiary nor clerk being present, was unauthorized and sale by substituted trustee was void. White v. Stennis, 151 Miss. 765, 118 So. 902, 1928 Miss. LEXIS 377 (Miss. 1928).

Appointment of substituted trustee by writing addressed to chancery clerk of county, specifying substitution, held sufficient to vest substituted trustee with power to maintain suit in replevin for property covered by deed of trust. Stringer v. Price, 143 Miss. 189, 108 So. 431, 1926 Miss. LEXIS 254 (Miss. 1926).

Recording appointment of substituted trustee in deed book instead of mortgage record held a compliance with statute. Camp v. Celtic Land & Improv. Co., 129 Miss. 417, 91 So. 897, 1922 Miss. LEXIS 30 (Miss. 1922).

Substitution of trustee appears of record and is spread thereon when written on margin by clerk and signed by beneficiary. King v. Jones, 121 Miss. 319, 83 So. 531, 1919 Miss. LEXIS 166 (Miss. 1919).

Substitution of trustee may be by separate writing attached to original. Watkins v. McDonald, 41 So. 376 (Miss. 1906).

4. Effect of void sale.

Where a county, which had become the purchaser of land upon foreclosure of a deed of trust held by it, and had received a deed thereto from a subsequent trustee, but had obtained no title because the substitution of the trustee was not made a matter of record as required by statute, sold the land under an order of the board of supervisors, which was void in that the order had been made at a special meeting, the call for which failed to make provision, either expressly or impliedly, for taking up the matter of the sale and conveyance of the land, a later valid foreclosure of the trust deed and the purchase by the county did not inure to the benefit of the would-be purchaser under the void sale by the board, so as to render her title good, since such would-be purchaser had been affected with notice of the illegality of the first foreclosure and the conveyance following it made to her, and persons dealing with members of the board of supervisors, who are trustees for the public and bound by the limitations fixed by law on their powers, must take notice of their powers and cannot acquire rights where they are acting beyond their authority. Simpson County v. Floyd, 192 Miss. 501, 6 So. 2d 580, 1942 Miss. LEXIS 41 (Miss. 1942).

5. Miscellaneous.

Trustee did not lack authority to conduct a foreclosure sale because the initial deed of trust named him as trustee the record was devoid of any substitution of a trustee. Hall v. Green Tree Servicing, LLC, 210 So.3d 1002, 2015 Miss. App. LEXIS 157 (Miss. Ct. App. 2015).

Substituted trustee could resell where first sale void because substitution not recorded. Polk v. S. S. Dale & Sons, 93 Miss. 664, 47 So. 386, 1908 Miss. LEXIS 130 (Miss. 1908).

Trustee appointed by mortgagee under provision providing for such appointment in default of payment to foreclose same, is not a substituted trustee. Searles v. Kelley, Simmons & Co., 88 Miss. 228, 40 So. 484, 1906 Miss. LEXIS 111 (Miss. 1906).

Instrument by corporation substituting trustee not void because not under seal. Brown v. British American Mortg. Co., 86 Miss. 388, 38 So. 312, 1905 Miss. LEXIS 26 (Miss. 1905).

Editor’s Notes —

Former §89-5-47 specified the place for filing notice of a federal tax lien. For provisions governing filing of federal tax liens from and after January 1, 1990, see Uniform Federal Lien Registration Act, §§85-8-1 et seq.

Former §89-5-49 required notice of a federal tax lien to be entered in a federal tax lien index. For provisions governing filing of federal tax liens from and after January 1, 1990, see Uniform Federal Lien Registration Act, §§85-8-1 et seq.

Former §89-5-51 related to entering notice of discharge of a lien. For provisions governing filing of federal tax liens from and after January 1, 1990, see Uniform Federal Lien Registration Act, §§85-8-1 et seq.

Former §89-5-53 provided for compensation of the chancery clerk for filing and indexing notice of lien, and each certificate of discharge. For provisions governing filing of federal tax liens from and after January 1, 1990, see Uniform Federal Lien Registration Act, §§85-8-1 et seq.

Comparable Laws from other States —

Alabama: Code of Ala. §§35-4-120 et seq.

Arizona: A.R.S. §§ 11-487 et seq.

Arkansas: A.C.A. §§14-15-301 et seq.

Connecticut: Conn. Gen. Stat. §§ 7-35aa et seq.

Florida: Fla. Stat. § 695.27

Idaho: Idaho Code § 31-2901 et seq.

Hawaii: HRS § 502-121 et seq.

Illinois: 765 ILCS 33/1 et seq.

Kansas: K.S.A. § 58-4401 et seq.

Michigan: MCLS § 565.841 et seq.

Nevada: Nev. Rev. Stat. Ann. § 111.366 et seq.

New Mexico: N.M. Stat. Ann. §14-9A-1 et seq.

North Carolina: N.C. Gen. Stat. § 47-16.1 et seq.

Oklahoma: 16 Okl. St. § 86.1 et seq.

South Carolina: S.C. Code Ann. §30-6-10 et seq.

Tennessee: Tenn. Code Ann. §§66-24-201 et seq.

Texas: Tex. Prop. Code § 15.001 et seq.

Virginia: Va. Code Ann. §§ 55-142.10 et seq.

Washington: Rev. Code Wash. (ARCW) § 65.24.010 et seq.

Cross References —

Mississippi Electronic Recording Commission, see §89-5-109.

Amendment Notes —

The 2006 amendment inserted “or U.S. Survey Feet and decimals of a foot” following “and decimals of a meter” near the end of the first sentence.

Amendment Notes —

The 2006 amendment, in the first sentence, substituted “standards of practice for surveying as adopted by the Board of Licensure for Professional Engineers and Surveyors” for “minimum standards of the Mississippi State Board of Registration for Professional Engineers and Land Surveyors.”

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

Liens generally, see §§85-7-1 through85-7-9.

Rights, obligations and remedies available under Sections89-7-1 through89-7-125 not altered or abridged by rights, obligations and remedies available under Chapter 8 of Title 89, see §89-8-3.

JUDICIAL DECISIONS

1. In general.

Landlord Lien Statute affords unpaid landlord no rights in property of third persons on landlord’s premises. By analogy, landlord should not acquire lien under §89-7-51(2) on property not belonging to lessee. Hicks v. Thomas, 516 So. 2d 1344, 1987 Miss. LEXIS 2949 (Miss. 1987).

The lien for the enforcement of which the statute provides is that inherent in the relation of landlord and tenant and therefore is not one created by legal proceedings within the provisions of the Bankruptcy Act that liens obtained through legal proceedings against an insolvent within four months prior to the filing of the petition of bankruptcy shall be deemed void. Irby v. Corey, 95 F.2d 963, 1938 U.S. App. LEXIS 4262 (5th Cir. Miss. 1938).

Seizure and removal of automobile trailers from leased premises under attachment writ by landlord for nonpayment of rent did not affect purchase money liens on trailers, since neither vendor nor purchaser thereof did anything in furtherance of the removal. Dorsey v. Latham, 194 Miss. 253, 11 So. 2d 897, 1943 Miss. LEXIS 46 (Miss. 1943).

The provision that goods shall not be taken from rented premises under process until rent is paid does not give landlord lien on property on leased premises for rent. White v. Miazza-Woods Const. Co., 122 Miss. 213, 84 So. 181, 1920 Miss. LEXIS 428 (Miss. 1920); Walker v. First Nat'l Bank, 168 Miss. 487, 151 So. 740, 1934 Miss. LEXIS 350 (Miss. 1934).

Where estate was insolvent, rent due landlord for store occupied by decedent before death, while claim superior to that of general creditors, was not preferred over claims for expenses of last illness, funeral, and administration, where administrator sold goods in store building under court order. Walker v. First Nat'l Bank, 168 Miss. 487, 151 So. 740, 1934 Miss. LEXIS 350 (Miss. 1934).

If clause in lease prohibiting removal of property while rent was unpaid created equitable lien, it was not enforceable by statutory remedy of distress for rent. Lake v. Morson, 164 Miss. 401, 145 So. 337, 1933 Miss. LEXIS 237 (Miss. 1933).

Rent accrued prior to the filing of a petition in bankruptcy is, however, properly allowable as a secured claim against the proceeds of the trustee’s sale of the tenant’s goods found on the premises at the time of the bankruptcy. In re Wall, 60 F.2d 573, 1932 U.S. Dist. LEXIS 1360 (D. Miss. 1932).

Under this provision a landlord has no lien for rent upon his tenant’s goods until a distress warrant is levied thereon, but has a right only to exact payment of rent before they can be taken off the premises by legal process. American Stores Co. v. Gerlach, 55 F.2d 658, 1932 U.S. App. LEXIS 3786 (3d Cir. Pa. 1932).

This provision does not make rent to accrue subsequent to bankruptcy a fixed liability absolutely owing at the time of the adjudication and as such provable against a bankrupt’s estate. In re S. & H. Katz, 6 F.2d 581, 1925 U.S. Dist. LEXIS 1156 (D. Miss. 1925).

In absence of seizure of tenant’s goods by legal process, landlord has only inchoate right which may develop into a preference. Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447, 1925 Miss. LEXIS 286 (Miss. 1925).

Landlord has no lien for rent except on agricultural products. Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447, 1925 Miss. LEXIS 286 (Miss. 1925).

Claim of lessor of storehouse is preference claim against insolvent tenant, and lessor had right to payment out of proceeds of sale though she did not assert her claim within thirty days after removal of the goods pursuant to sale. Epstein v. Farr, 112 Miss. 530, 73 So. 572, 1916 Miss. LEXIS 143 (Miss. 1916).

This section [Code 1942, § 897] does not subject property of third persons on leased premises to liability for rent. Brunswick-Balke-Collender Co. v. Murphy, 89 Miss. 264, 42 So. 288, 1906 Miss. LEXIS 33 (Miss. 1906).

JUDICIAL DECISIONS

1. In general.

Where a building was destroyed by fire and the fire was not caused by negligence or fault of the lessee and the lessee did not expressly stipulate to pay for rent after destruction by the fire, the lessee was entitled to a reduction in the monthly rental to be paid for the leased premises and the lessee did not lose his right when he rebuilt the building at his own expense. Miller v. Miller, 222 Miss. 588, 76 So. 2d 705, 1955 Miss. LEXIS 641 (Miss. 1955).

A tenant is not liable for accidental damages or destruction by fire, unless he has contracted to assume liability for such damages. Miller v. Miller, 217 Miss. 650, 64 So. 2d 739, 1953 Miss. LEXIS 475 (Miss. 1953).

In an action brought by lessee against lessor of a gasoline station seeking reduction of monthly rental to be paid on account of destruction of the main service station building by fire, or, in the alternative, to require the lessors to restore the building to its former condition, wherein the lessors filed a cross bill to recover for damages to the building on the ground that the fire was the result of lessee’s negligence, evidence sustained a finding that there was insufficient proof that fire was caused by the negligence of lessee or his employees. Miller v. Miller, 217 Miss. 650, 64 So. 2d 739, 1953 Miss. LEXIS 475 (Miss. 1953).

In the absence of an agreement to the contrary, the tenant is not liable for damages to or the destruction of a building by fire unless there was negligence or fault on his part. Miller v. Miller, 217 Miss. 650, 64 So. 2d 739, 1953 Miss. LEXIS 475 (Miss. 1953).

This section [Code 1942, § 898] affects contract rights of parties to a lease, but concluding clause is merely declaratory of common law right to sue tenant for negligent act, resulting in damage. Roell v. Brooks, 205 Miss. 255, 38 So. 2d 716, 1949 Miss. LEXIS 427 (Miss. 1949).

In action under this section [Code 1942, § 898] by landlord against tenant for damages to leased premises by fire alleged to have been caused by negligence of defendant’s manager in leaving gas heater burning during his absence from building, burden of proof is on plaintiff to show by preponderance of evidence that defendant did not use reasonable care in maintenance of reasonably safe gas heater and that such failure was proximate cause of fire and resulting damage. Roell v. Brooks, 205 Miss. 255, 38 So. 2d 716, 1949 Miss. LEXIS 427 (Miss. 1949).

Tenant, although bound under lease to restore building destroyed by fire, held not entitled to proceeds of insurance taken out by the lessor. Panhandle Oil Co. v. Therrell, 158 Miss. 810, 131 So. 263, 1930 Miss. LEXIS 109 (Miss. 1930).

Watertank, pump, and engine placed on leased premises by tenant after destruction by windstorm did not become fixtures. Frederick v. Smith, 147 Miss. 437, 111 So. 847, 1927 Miss. LEXIS 279 (Miss. 1927).

If a lessee covenants “to take good care of the leased premises and to return the same in as good order as at the beginning of the lease, ordinary wear and tear, and damage by fire, wind and water excepted, and to make at his own expense all necessary repairs,” he is obliged to make all such repairs as are necessary to keep the premises in such condition. The exceptions cannot be construed to relieve him of such obligations. Waddell v. De Jet, 76 Miss. 104, 23 So. 437, 1898 Miss. LEXIS 57 (Miss. 1898).

An insolvent tenant who violates his obligation to repair, to the extent of endangering the destruction of the leased premises, subjects himself to a suit for the cancellation of his lease. Waddell v. De Jet, 76 Miss. 104, 23 So. 437, 1898 Miss. LEXIS 57 (Miss. 1898).

No damages are allowable, but the tenant is entitled under the statute to an abatement of rent in the proportion that the value of the use of the ginhouse and machinery accidentally destroyed by fire during his term, bears to the value of the use of the whole premises. Taylor v. Hart, 73 Miss. 22, 18 So. 546, 1895 Miss. LEXIS 84 (Miss. 1895).

RESEARCH REFERENCES

ALR.

Liability of tenant for damage to the leased property due to his acts or neglect. 10 A.L.R.2d 1012.

Statute requiring property to be kept in good repair as affecting landlord’s liability for personal injury to tenant or his privies. 17 A.L.R.2d 704.

Extent of lessee’s obligation under express covenant as to repairs. 20 A.L.R.2d 1331.

Landlord’s duty under express covenant to repair, rebuild, or restore, where property is damaged or destroyed by fire. 38 A.L.R.2d 682.

Condition of premises within contemplation of provision of lease or statute for cessation of rent or termination of lease in event of destruction of or damage to property as result of fire, calamity, the elements, act of God, or the like. 61 A.L.R.2d 1445.

Modern status of rules as to existence of implied warranty of habitability or fitness for use of leased premises. 40 A.L.R.3d 646.

Landlord’s failure to repair as aggravated negligence or similar fault. 40 A.L.R.3d 795.

Validity and construction of statute or ordinance authorizing withholding or payment into escrow of rent for period during which premises are not properly maintained by landlord. 40 A.L.R.3d 821.

Tenant’s right, where landlord fails to make repairs, to have them made and set off cost against rent. 40 A.L.R.3d 1369.

Modern status of landlord’s tort liability for injury or death of tenant or third person caused by dangerous condition of premises. 64 A.L.R.3d 339.

Landlord’s liability for injury or death due to defects in areas of building (other than stairways) used in common by tenants. 65 A.L.R.3d 14.

Liability of landlord for personal injury or death due to inadequacy or lack of lighting on portion of premises used in common by tenants. 66 A.L.R.3d 202.

Landlord’s liability for personal injury or death due to defects in appliances supplied for use of different tenants. 66 A.L.R.3d 374.

Landlord’s liability for injury or death due to defects in exterior steps or stairs used in common by tenants. 67 A.L.R.3d 490.

Landlord’s liability for injury or death caused by defective condition of interior steps or stairways used in common by tenants. 67 A.L.R.3d 587.

Modern status of rule as to tenant’s rent liability after injury to or destruction of demised premises. 99 A.L.R.3d 738.

Commercial leases: application of rule that lease may be canceled only for “material” breach. 54 A.L.R.4th 595.

Implied warranty of fitness or suitability in commercial leases-modern status. 76 A.L.R.4th 928.

Measure and elements of damages for lessee’s breach of covenant as to repairs. 45 A.L.R.5th 251.

Time within which tenant’s right to remove trade fixtures must be exercised. 109 A.L.R.5th 421.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 678 et seq., 812 et seq.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 111 (instruction to jury on landlord’s statutory duty to maintain leased premises in habitable condition).

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 296 (complaint by lessee of apartment unit; failure of landlord to maintain water and septic system).

17 Am. Jur. Pl & Pr Forms (Rev), Mobile Homes (complaint by lessee of lot in mobile home park for failure of landlord to maintain water and septic systems).

11A Am. Jur. Legal Forms 2d, Leases of Real Property §§ 161:266 et seq. (effect of injury to or destruction of premises on payment of rent).

11A Am. Jur. Legal Forms 2d, Leases of Real Property §§ 161:544 et seq. (rebuilding or restoration).

7 Am. Jur. Proof of Facts 3d 655, Material breach of Commercial Lease.

CJS.

51C C.J.S., Landlord and Tenant §§ 366(1) et seq.

Cross References —

Requirement that leases for a term of more than one year be in writing, see §15-3-1.

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

Rights, obligations and remedies available under Sections89-7-1 through89-7-125 not altered or abridged by rights, obligations and remedies available under Chapter 8 of Title 89, see §89-8-3.

Rental by husband of wife’s property, see §§93-3-1,93-3-7.

JUDICIAL DECISIONS

1. In general.

In an action by the lessor of commercial property to reject the lessee the lessor was entitled to recover $600 for the period of 30 days past the June 30, 1981 termination date of the lease, where a lease provision granting the lessee 30 days in which to remove the improvements placed on the lease premises was effective to extent the term of the lease for an additional 30 days; additionally, the lessor was entitled to recover a reasonable rental from August 1 to August 15, 1981, where August 15, 1981 was the date on which lessee vacated the premises, and where the lessor had sought reasonable rent after expiration of the lease. Terracina Motor Co. v. Sarullo, 419 So. 2d 1335, 1982 Miss. LEXIS 2175 (Miss. 1982).

“Reasonable satisfaction” within the meaning of this section [Code 1942, § 879], is an issue of fact. Feltenstein v. Newell, 248 Miss. 880, 162 So. 2d 253, 1964 Miss. LEXIS 318 (Miss. 1964).

Where a tenant removing from leased premises leaves thereon, and abandons to the seller property covered by a conditional sale agreement, the landlord may recover from the seller, in absence of agreement, only the reasonable cost of removing the property to dead storage, and the cost of such storage. Feltenstein v. Newell, 248 Miss. 880, 162 So. 2d 253, 1964 Miss. LEXIS 318 (Miss. 1964).

A tenant upon shares is liable for damages as reasonable rental upon his failure to cultivate the land. Sledge v. Potts, 202 Miss. 480, 32 So. 2d 262, 1947 Miss. LEXIS 302 (Miss. 1947).

Where under a written contract a tenant agreed to pay a percentage of certain crops as rent and reasonable rent for any and all other crops grown on the land, his abandonment of the land and failure to cultivate subjected him to a liability for reasonable value of the rental of the land notwithstanding uncertainty as to the amount of profits. Sledge v. Potts, 202 Miss. 480, 32 So. 2d 262, 1947 Miss. LEXIS 302 (Miss. 1947).

Landowner is entitled to compensation for mooring of boats in front of his property for periods exceeding reasonable use for navigation; where boats are not moored constantly and permanently in front of property, owner is entitled to compensation only for time boats actually occupy banks beyond reasonable navigation uses; instruction authorizing landowner to recover for use and occupancy by mooring boats in front of bank for full period of limitation held error under evidence. Louisiana & M. R. T. Co. v. Long, 159 Miss. 654, 131 So. 84, 1930 Miss. LEXIS 358 (Miss. 1930).

Under lease of land for its mill by lumber company containing option to renew, where it acquired timber lands about its mill sufficient to furnish material for several years beyond expiration of first lease, no specific notice to lessor of intention to renew required. Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, 1916 Miss. LEXIS 377 (Miss. 1916).

Lessor’s covenant to renew lease runs with land. Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, 1916 Miss. LEXIS 377 (Miss. 1916).

Landlord entitled to reasonable rental after notice to vacate upon expiration of term, but not for time permitted tenant to remain in possession under circumstances indicating no rent charged. Thomas Hinds Lodge v. Presbyterian Church of Fayette, 103 Miss. 130, 60 So. 66, 1912 Miss. LEXIS 146 (Miss. 1912).

Where one pending negotiations, looking to an entire contract with the owner for the yearly lease of lands for several years, and a subsequent purchase, enters into possession, and the negotiations fail, he is not liable for the rent stipulated for in the negotiations, but for the reasonable rental value of the premises. Sutton v. Graham, 80 Miss. 636, 31 So. 909, 1902 Miss. LEXIS 274 (Miss. 1902).

If a tenant from year to year, upon the death of a landlord, asserts title himself and refuses to surrender at the end of the year, or to longer pay rent, the heirs who recover in ejectment are entitled to charge him thereafter with the reasonable rental value, regardless of the former contract price. Thomas v. Thomas, 69 Miss. 564, 13 So. 666, 1891 Miss. LEXIS 139 (Miss. 1891).

This statute gives the right in all cases where the possession is held in recognition of and not adversely to the title of the party suing. Newberg & Anderson v. Cowan, 62 Miss. 570, 1885 Miss. LEXIS 110 (Miss. 1885).

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 503, 504.

16 Am. Jur. Pl & Pr Forms (Rev) Landlord and Tenant, Forms 11, 12 (complaint, petition, or declaration to recover reasonable value of use and occupation).

CJS.

51C C.J.S., Landlord and Tenant §§ 552 et seq.

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

Rights, obligations and remedies available under Sections89-7-1 through89-7-125 not altered or abridged by rights, obligations and remedies available under Chapter 8 of Title 89, see §89-8-3.

Right of landlord to remove tenant in manner prescribed by this Chapter for nonpayment of rent, not circumscribed by termination procedure specified in section89-8-13, see §89-8-13.

JUDICIAL DECISIONS

1. In general.

A sublessee incurs no liability to the lessor merely because of the subletting either for the payment of rent reserved in the original lease or for the performance of the other covenants on the part of the lessee, but the lessor and lessee may establish between themselves relationship of landlord and tenant by express agreement or by some affirmative action showing an election to treat a sublessee as the lessor’s tenant. Goldberg v. L. H. Realty Corp., 227 Miss. 345, 86 So. 2d 326, 1956 Miss. LEXIS 696 (Miss. 1956).

Where under a written contract a tenant agreed to pay a percentage of certain crops as rent and a reasonable rent for any and all other crops grown on the land, his abandonment of the land and failure to cultivate subjected him to liability for reasonable value of the rental of the land notwithstanding uncertainty as to the amount of profits. Sledge v. Potts, 202 Miss. 480, 32 So. 2d 262, 1947 Miss. LEXIS 302 (Miss. 1947).

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 502 et seq.

16 Am. Jur. Pl & Pr Forms (Rev) Landlord and Tenant, Form 1 (complaint, petition, or declaration to recover rent due under lease).

CJS.

51C C.J.S., Landlord and Tenant §§ 552 et seq.

Cross References —

Abatement of suit upon death of party, see §§91-7-237 et seq.

JUDICIAL DECISIONS

1. In general.

Amendment of statute, declaring rents arising from demise of land by life tenant apportionable, by adding words “and a like apportionment shall be made in the case of annuities” held not violative of constitutional guaranties of due process and equal protection of law in application to annuities arising under disability provisions of life policies as requiring apportionment notwithstanding express contract to contrary, where disability provisions contained no express stipulation that benefits should be apportionable. New York Life Ins. Co. v. Majet, 178 Miss. 440, 173 So. 412, 1937 Miss. LEXIS 218 (Miss. 1937).

Amendment of statute, declaring rents arising from demise of land by life tenant apportionable, by adding words “and a like apportionment shall be made in the case of annuities,” held to make all annuities apportionable, so as to entitle beneficiary under life insurance policy to payment of proportionate part of disability benefits provided for thereby in addition to face amount of policy on insured’s death before anniversary date on which annual payment would have become due. New York Life Ins. Co. v. Majet, 173 Miss. 870, 161 So. 156, 1935 Miss. LEXIS 211 (Miss. 1935).

RESEARCH REFERENCES

ALR.

Life tenant’s death as affecting rights under lease given by him. 14 A.L.R.4th 1054.

Death of lessee as terminating lease. 42 A.L.R.4th 963.

Am. Jur.

51 Am. Jur. 2d, Life Tenants and Remaindermen §§ 151 et seq.

CJS.

31 C.J.S., Estates §§ 50-52.

Cross References —

Liability of person in possession of escheated property for rent of real estate, see §89-11-13.

Rental of land as asset of estate, see §91-7-91.

JUDICIAL DECISIONS

1. In general.

Although the personal representative of a decedent has the power to collect rents under this section [Code 1942, § 902], such rents collected are the property of the respective devisees of the real estate upon which the rents accrue. Gaines v. Klein, 203 Miss. 271, 34 So. 2d 489, 1948 Miss. LEXIS 262 (Miss. 1948).

The statute applies to cases of testacy as well as intestacy. Tucker v. Whitehead, 58 Miss. 762, 1881 Miss. LEXIS 34 (Miss. 1881).

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 502 et seq.

CJS.

51C C.J.S., Landlord and Tenant §§ 522 et seq.

Cross References —

Powers of temporary administrator generally, see §91-7-57.

Leases of land by executor or administrator to pay debts of deceased, see §91-7-225.

Actions by executors or administrators, see §§91-7-231 et seq.

Cross References —

Rights, obligations and remedies available under Sections89-7-1 through89-7-125 not altered or abridged by rights, obligations and remedies available under Chapter 8 of Title 89, see §89-8-3.

JUDICIAL DECISIONS

1. In general.

Lease of portion of building being assignable at common law, Code 1906, §§ 2877, 2878, 4001 do not affect question of whether lessor’s mortgagee charged with notice of assignment of unrecorded lease. Corinth Bank & Trust Co. v. Wallace, 111 Miss. 62, 71 So. 266, 1916 Miss. LEXIS 241 (Miss. 1916).

Code 1906, §§ 2877, 2878, merely enlarge and broaden rights of assignee of lease under certain circumstances. Corinth Bank & Trust Co. v. Wallace, 111 Miss. 62, 71 So. 266, 1916 Miss. LEXIS 241 (Miss. 1916).

Where lessee sublet premises subject to original lease, sublessee entitled to benefits of original lease, and to damages consequent upon lessee releasing water rights thereunder. Hairston v. Montgomery, 102 Miss. 364, 59 So. 793, 1912 Miss. LEXIS 65 (Miss. 1912).

Lessee cannot avoid lease because county and state in which land located not designated in body of lease, where same were designated in caption thereto and lease was acknowledged before officer and recorded in the county named. Gex v. Dill, 86 Miss. 10, 38 So. 193, 1905 Miss. LEXIS 7 (Miss. 1905).

The right of a tenant to renew a lease is assignable, and it may be exercised at any time during the original term unless it be limited by the grant or terminated by the parties; A landlord may demand of a tenant during the term the exercise of a right to renew the lease and if not exercised on demand, it will be terminated. McClintock v. Joyner, 77 Miss. 678, 27 So. 837, 1900 Miss. LEXIS 34 (Miss. 1900).

The right of re-entry for nonpayment of rent is not an estate in land, but a mere right or chose in action, and the assignee under Code 1892, § 660 (Code 1906, § 717), may sue and recover in his own name. Wright v. Hardy, 76 Miss. 524, 24 So. 697, 1898 Miss. LEXIS 96 (Miss. 1898).

The rights given to the assignee of a lessor by this section [Code 1942, § 904] apply only to estates for life or years, and not to estates in fee; lands let to lease are those conveyed only for life, years, or at will. Wright v. Hardy, 76 Miss. 524, 24 So. 697, 1898 Miss. LEXIS 96 (Miss. 1898).

Where an owner rents his lands and takes rent notes, and afterwards makes an assignment, conveying his lands, tenements, and hereditaments, the right to the rents passes to the assignee by the use of the word “hereditaments.” Allen v. Smith Bros. Co., 72 Miss. 689, 18 So. 579, 1895 Miss. LEXIS 72 (Miss. 1895).

The purchaser of land at partition sale is entitled to the rent falling due after his purchase, if not expressly reserved, and may distrain therefor, notwithstanding a rent note previously given therefor had been assigned by the landlord to another, who contests the purchaser’s right to such rent. Kessee v. Sloan, 69 Miss. 369, 11 So. 631, 1891 Miss. LEXIS 98 (Miss. 1891).

Rent is an incident to the reversion, and before maturity follows the title to the premises, except as otherwise provided by statute. Bloodworth v. Stevens, 51 Miss. 475, 1875 Miss. LEXIS 67 (Miss. 1875).

RESEARCH REFERENCES

ALR.

Measure and elements of damages for lessee’s breach of covenant as to repairs. 45 A.L.R.5th 251.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 420 et seq.

2B Am. Jur. Legal Forms 2d, Assignments § 25:165 (assignment-lease-acceptance and assumption of lessee’s lease obligations-with consent of lessor).

CJS.

51C C.J.S., Landlord and Tenant §§ 258, 259.

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 421.

11B Am. Jur. Legal Forms 2d, Leases of Real Property § 161:705 (lessor’s right to assign rents).

CJS.

51C C.J.S., Landlord and Tenant § 259.

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 104.

CJS.

51C C.J.S., Landlord and Tenant §§ 277-279.

Cross References —

Rights, obligations and remedies available under Sections89-7-1 through89-7-125 not altered or abridged by rights, obligations and remedies available under Chapter 8 of Title 89, see §89-8-3.

RESEARCH REFERENCES

ALR.

Covenant of lessee to insure as running with the land. 18 A.L.R.2d 1051.

Rights and remedies of tenant upon landlord’s breach of covenant to repair. 28 A.L.R.2d 446.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 93 et seq.

Cross References —

Residential Landlord and Tenant Act, see §89-8-1, et seq.

Right of landlord to remove tenant in manner prescribed by this chapter for nonpayment of rent, not circumscribed by termination procedure specified in section89-8-13, see §89-8-13.

Amount of notice required to terminate tenancy governed by the Residential Landlord and Tenant Act, see §89-8-19.

JUDICIAL DECISIONS

1. In general.

2. Tenant holding over.

3. Indefinite tenancies.

1. In general.

It is only where the rental term is not to expire at a fixed time that notice to quit becomes necessary. Price v. Moss, 214 Miss. 253, 58 So. 2d 661, 1952 Miss. LEXIS 465 (Miss. 1952).

In an unlawful entry and detainer action by one claiming title through a tax purchaser, preliminary notice to vacate the premises need not be given to tenants of one who was the owner prior to tax sale. McKay v. Shaffer, 202 Miss. 558, 32 So. 2d 746, 1947 Miss. LEXIS 317 (Miss. 1947).

A notice to vacate for various reasons given pursuant to permission of the area rent control office to proceed with legal eviction on the ground of nuisance did not place the eviction proceedings on the same basis as expiration of a month to month tenancy after due notice to vacate. Young v. Weaver, 202 Miss. 291, 32 So. 2d 202, 1947 Miss. LEXIS 275 (Miss. 1947).

Where tenancy, which had been held under definite, different contracts for 1933 and 1934, terminated on December 31, 1934, and proceeding was brought in January, 1935, after notice on January 9, 1935, to vacate, landlord’s failure to give such notice before expiration of lease did not amount to waiver of right to possession; statute requiring two months’ notice being inapplicable. Graham v. Cauthen, 175 Miss. 751, 168 So. 58, 1936 Miss. LEXIS 75 (Miss. 1936).

Landowner, demanding and receiving payment of annual rent from one entering on land, elected to constitute and acknowledge latter as tenant, thereby impliedly creating tenancy by year. Hamilton v. Federal Land Bank, 175 Miss. 462, 167 So. 642, 1936 Miss. LEXIS 68 (Miss. 1936).

Tenancy may be terminated by agreement without statutory written notice. Stacks v. Robson, 139 Miss. 600, 104 So. 354, 1925 Miss. LEXIS 171 (Miss. 1925).

Tenant from year to year notified that rent would be increased but not assenting thereto, did not by remaining on the land become liable for increase as she had right to hold until tenancy terminated in statutory manner. Bancroft v. Seashore Camp Ground School, 120 Miss. 446, 82 So. 314, 1919 Miss. LEXIS 106 (Miss. 1919).

Tenant from year to year entitled to two months’ notice in writing of termination. Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003, 1915 Miss. LEXIS 18 (Miss. 1915).

A mere licensee is not entitled to notice to quit. Johns v. McDaniel, 60 Miss. 486, 1882 Miss. LEXIS 86 (Miss. 1882).

2. Tenant holding over.

Where a tenancy was from month to month, beginning on the 10th of the month, the landlord, who gave the tenant written notice on April 5th to vacate on the 30th of that month, should not be denied double rent for the period the tenant held over after the 10th of May, on the ground that the notice fixed a time for vacation ten days earlier than he was entitled to fix, since the tenant could not have been misled by the notice, but knew that the landlord intended him to vacate not on the 30th of the month, but on the 10th of the next month, and that he had simply made a mistake in fixing the date. Gulley v. Mayo, 191 Miss. 143, 1 So. 2d 800, 1941 Miss. LEXIS 118 (Miss. 1941).

Tenant under implied tenancy from year to year had right to presume that such relation would continue for years into which he held over, in absence of statutory notice to contrary. Hamilton v. Federal Land Bank, 175 Miss. 462, 167 So. 642, 1936 Miss. LEXIS 68 (Miss. 1936).

Lessee who failed to renew lease before expiration of existing term held not entitled to notice to vacate. Copiah Hardware Co. v. Johnson, 135 Miss. 358, 100 So. 31, 1924 Miss. LEXIS 48 (Miss. 1924).

3. Indefinite tenancies.

Chancellor is in error in awarding increased rent to purchaser of property from date of decree awarding possession of property and rent due, but is correct in awarding to purchaser of property rent at agreed rate where tenant from month to month refused to pay increase in rent but remained on land and there was no statutory notice terminating tenancy. Williams v. Barlow, 205 Miss. 449, 38 So. 2d 914, 1949 Miss. LEXIS 442 (Miss. 1949).

Tenant by month for indefinite period of time who is notified by landlord of increase in rent does not, by merely remaining on land, become liable for increase, but is liable only for rent agreed upon until tenancy is terminated by landlord in statutory manner. Williams v. Barlow, 205 Miss. 449, 38 So. 2d 914, 1949 Miss. LEXIS 442 (Miss. 1949).

Chancellor is in error in terminating tenancy by month for indefinite period of time, against will of tenant, and in awarding possession of premises to landlord, on record showing that no written notice was given to tenant to terminate his tenancy, as provided by this section [Code 1942, § 946]. Williams v. Barlow, 205 Miss. 449, 38 So. 2d 914, 1949 Miss. LEXIS 442 (Miss. 1949).

Under this section [Code 1942, § 946], letting of real property by month for indefinite period of time can only be terminated against will of tenant at end of monthly term then pending by giving one week’s notice in writing. Williams v. Barlow, 205 Miss. 449, 38 So. 2d 914, 1949 Miss. LEXIS 442 (Miss. 1949).

Where relation of landlord and tenant exists and there is holding from year to year with no definite period for termination of lease, notice to terminate tenancy is essential to maintenance of suit against tenant for possession. Hamilton v. Federal Land Bank, 175 Miss. 462, 167 So. 642, 1936 Miss. LEXIS 68 (Miss. 1936).

Indefinite rental of building held tenancy from month to month, and tenant entitled to notice of termination. Lay v. Great Southern Lumber Co., 118 Miss. 636, 79 So. 822, 1918 Miss. LEXIS 113 (Miss. 1918).

A letting of real property by the month to continue for an indefinite period according to the wishes of the contracting parties, can only be terminated at the end of the monthly term then pending on giving one week’s notice in writing. Wilson v. Wood, 84 Miss. 728, 36 So. 609, 1904 Miss. LEXIS 74 (Miss. 1904).

Where land is leased by the month to continue for an indefinite period the tenancy can only be terminated at the end of a monthly term upon a week’s notice in writing. Wilson v. Wood, 84 Miss. 728, 36 So. 609, 1904 Miss. LEXIS 74 (Miss. 1904).

RESEARCH REFERENCES

ALR.

Retaliatory eviction of tenant for reporting landlord’s violation of law. 40 A.L.R.3d 753.

Lease provisions allowing termination or forfeiture for violation of law. 92 A.L.R.3d 967.

Circumstances excusing lessee’s failure to give timely notice of exercise of option to renew or extend lease. 27 A.L.R.4th 266.

Sufficiency as to method of giving oral or written notice exercising option to renew or extend lease. 29 A.L.R.4th 903.

What constitutes timely notice of exercise of option to renew or extend lease. 29 A.L.R.4th 956.

Waiver of statutory demand-for-rent due or of notice-to-quit prerequisite of summary eviction of lessee for nonpayment of rent-modern cases. 31 A.L.R.4th 1254.

Sufficiency as to parties giving or receiving notice of exercise of option to renew or extend lease. 34 A.L.R.4th 857.

Specificity of description of premises as affecting enforceability of lease. 73 A.L.R.4th 236.

What constitutes abandonment of residential or commercial lease-modern cases. 84 A.L.R.4th 183.

Am. Jur.

11B Am. Jur. Legal Forms 2d, Leases of Real Property §§ 161:1270 et seq. (notice of termination and cancellation).

15 Am. Jur. Proof of Facts 2d 209, Landlord’s Reasonable Efforts to Minimize Damages After Tenant’s Breach of Lease.

25 Am. Jur. Proof of Facts 2d 51, Abandonment of Lease of Real Property.

50 Am. Jur. Proof of Facts 2d 519, Lessee’s Excusable Failure to give Timely Notice Exercising Option to Renew Lease.

CJS.

51C C.J.S., Landlord and Tenant §§ 81(1) et seq., 142(1) et seq., 150(1) et seq., 173, 183.

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

JUDICIAL DECISIONS

1. In general.

2. Penal nature of statute.

3. Notice.

4. Recovery of double rent.

5. Attorney’s fees.

6. Waiver and estoppel.

1. In general.

The statute is the sole remedy for landlords against holdover tenants; the common law rule with regard to holdover tenants was abrogated by the statute. Dungan v. Presley, 765 So. 2d 592, 2000 Miss. App. LEXIS 379 (Miss. Ct. App. 2000).

Where the landlord did not covenant to put the new tenant in possession of the leased premises, the landlord’s right to bring a dispossessory action against the old tenant was transferred to the new tenant, and the new tenant was bound by the terms of this section and could recover no more than the damages allowed the landlord under this section. Southwest Drug Co. v. Howard Bros. Pharmacy, Inc., 320 So. 2d 776, 1975 Miss. LEXIS 1499 (Miss. 1975).

Judgment may be entered for both single and double rent in an unlawful entry and detainer proceeding. Firestone Tire & Rubber Co. v. Fried, 202 Miss. 370, 31 So. 2d 116, 1947 Miss. LEXIS 287 (Miss. 1947).

Single rent only was recovered by a landlord during the time reasonably necessary for the tenant to remove its improvements after receiving notice the day before the lease expired that the landlord was exercising his retake privilege. Hines Motor Co. v. Hederman, 201 Miss. 859, 30 So. 2d 70, 1947 Miss. LEXIS 457 (Miss. 1947).

Under this section [Code 1942, § 947], rent due by a tenant unlawfully holding over after notice to vacate the premises is double that which he had agreed to pay. Ellison v. Landry, 199 Miss. 161, 24 So. 2d 319, 1946 Miss. LEXIS 182 (Miss. 1946).

Tenant, who became trespasser by holding over beyond expiration of term, is liable for double rent thereafter, but only for that period dating from one year prior to suit. Sherrill v. Stewart, 199 Miss. 216, 23 So. 2d 915, 1945 Miss. LEXIS 282 (Miss. 1945).

When a person is rightfully in possession of a leased premises and the landlord seeks wrongfully to evict him, the case does not become moot upon the mere fact that the tenant’s term has expired before the time of trial, because, in such case, the general judgment in favor of the landlord would be to adjudge that the tenant was wrongfully in possession at the time the action was filed and before his rightful term expired, and might subject him to double rent under this section [Code 1942, § 947]. Henley v. Kilbas, 188 Miss. 604, 195 So. 582, 1940 Miss. LEXIS 61 (Miss. 1940).

Liability of tenant holding over after notice to quit, for double rent, is absolute. Weatherall v. Brown, 113 Miss. 887, 74 So. 765, 1917 Miss. LEXIS 161 (Miss. 1917).

After termination of lease tenant has reasonable time in which to remove effects, and on failure to do so landlord may remove them but does not acquire title by tenant’s failure to remove. Opperman v. Littlejohn, 98 Miss. 636, 54 So. 77, 1910 Miss. LEXIS 102 (Miss. 1910).

2. Penal nature of statute.

In unlawful entry and detainer action against tenant holding over, imposition of damages at double rent cannot be awarded on testimony which is too vague to establish a rental basis, especially in view of penal nature of such award. Burr v. Johnson, 204 Miss. 479, 37 So. 2d 747, 1948 Miss. LEXIS 382 (Miss. 1948).

One who is no longer within the orbit of federal statute because no longer a tenant, the office of price administration having authorized action for eviction or removal in accordance with requirements of local law, cannot avoid penalty provided by this section [Code 1942, § 947]. Stovall v. Gardner, 203 Miss. 527, 36 So. 2d 163, 1948 Miss. LEXIS 302 (Miss. 1948).

“Double rent” imposed under this section [Code 1942, § 947] is a penalty and not rent in the accepted sense of being a stipulated consideration for the use or occupancy of property. Stovall v. Gardner, 203 Miss. 527, 36 So. 2d 163, 1948 Miss. LEXIS 302 (Miss. 1948).

This section [Code 1942, § 947] is penal and should be strictly construed against the claim for double rent. Sherrill v. Stewart, 197 Miss. 880, 21 So. 2d 11, 1945 Miss. LEXIS 319 (Miss. 1945).

Claim for double rent is one for a penalty and is subject to the one-year limitation period under Code 1942, § 731. Sherrill v. Stewart, 197 Miss. 880, 21 So. 2d 11, 1945 Miss. LEXIS 319 (Miss. 1945).

The statutory provision making a tenant liable for double rent in case he holds over after notice is penal and should be strictly construed against the claim for double rent, but that does not mean that the very letter of the statute must be followed. Gulley v. Mayo, 191 Miss. 143, 1 So. 2d 800, 1941 Miss. LEXIS 118 (Miss. 1941).

3. Notice.

Liability of tenant holding over after notice to quit for double rent is absolute. Stovall v. Gardner, 203 Miss. 527, 36 So. 2d 163, 1948 Miss. LEXIS 302 (Miss. 1948).

There can be no double rent in the absence of a notice to quit; summons to the action is not equivalent to such notice. McKay v. Shaffer, 202 Miss. 558, 32 So. 2d 746, 1947 Miss. LEXIS 317 (Miss. 1947).

Where a tenancy was from month to month, beginning on the 10th of the month, the landlord, who gave the tenant written notice on April 5th to vacate on the 30th of that month, should not be denied double rent for the period the tenant held over after the 10th of May, on the ground that the notice fixed a time for vacation ten days earlier than he was entitled to fix, since the tenant could not have been misled by the notice, but knew that the landlord intended him to vacate not on the 30th of the month, but on the 10th of the next month, and that he had simply made a mistake in fixing the date. Gulley v. Mayo, 191 Miss. 143, 1 So. 2d 800, 1941 Miss. LEXIS 118 (Miss. 1941).

Subtenants, who held over under oral lease with tenant after termination of tenant’s lease, were not liable to landlord for double rent, where landlord did not give such tenants notice to quit. Graham v. Cauthen, 175 Miss. 751, 168 So. 58, 1936 Miss. LEXIS 75 (Miss. 1936).

Landlord’s notice to quit enures to purchaser’s benefit, and tenant becomes liable for double rent on remaining beyond his rights. Pinnix v. Jones, 127 Miss. 764, 90 So. 481, 1921 Miss. LEXIS 279 (Miss. 1921).

Correspondence held to constitute notice to vacate, and plaintiff entitled to recover double rent. Stollenwerck v. Eure, 119 Miss. 854, 81 So. 594, 1919 Miss. LEXIS 51 (Miss. 1919).

4. Recovery of double rent.

Hold-over tenant was liable for double rent for entire premises that he had leased with cotenant, even though he claimed that he occupied only half of the premises. Murphree v. Aberdeen-Monroe County Hosp., 671 So. 2d 1300, 1996 Miss. LEXIS 61 (Miss. 1996).

On affirmance of judgment for landlord for possession of property, double rent and costs, judgment will be entered in supreme court against tenants and their sureties on supersedeas bond for double rent, plus interest thereon at rate of 6% per annum from date of judgment below to date of judgment in supreme court, and all costs, and for five per centum upon value of property interest in dispute, or amount of judgment, whichever shall be found to be smaller, which fact will be found by lower court on remand to it for that purpose, facts as to value not appearing in record. Conn v. Brashears, 38 So. 2d 907 (Miss. 1949).

This section [Code 1942, § 947] allowing double rent and Code 1942, § 1054, providing that judge shall find upon evidence the arrears of rent or reasonable compensation are applicable to suits in unlawful entry and detainer. Burr v. Johnson, 204 Miss. 479, 37 So. 2d 747, 1948 Miss. LEXIS 382 (Miss. 1948).

Under this section [Code 1942, § 947], double rent may be recovered in an action of unlawful entry and detainer. Ellison v. Landry, 199 Miss. 161, 24 So. 2d 319, 1946 Miss. LEXIS 182 (Miss. 1946).

The statutory remedy of recovery of double rent for tenant’s holding over is exclusive, and hence recovery thereunder in dispossessory proceedings was res judicata of landlord’s action for damages, notwithstanding another statute permitting recovery of both penalty and actual damages in certain cases. Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556, 1937 Miss. LEXIS 261 (Miss. 1937).

Double rent is recoverable in unlawful entry and detainer proceeding. Weatherall v. Brown, 113 Miss. 887, 74 So. 765, 1917 Miss. LEXIS 161 (Miss. 1917).

5. Attorney’s fees.

Attorney’s fees are not recoverable under this statute, damages being expressly limited thereby to double rent, contractual provision to the contrary notwithstanding. Hines Motor Co. v. Hederman, 201 Miss. 859, 30 So. 2d 70, 1947 Miss. LEXIS 457 (Miss. 1947).

6. Waiver and estoppel.

A landlord’s sole action for damages as a result of a tenant’s holdover is provided in §89-7-25; accordingly, where the landlord notified the tenant of the approaching expiration of his annual lease and demanded that the premises be surrendered at the completion of the term, but never elected to pursue his statutory remedy by having the tenant evicted, the landlord’s acceptance of one month’s rent following the expiration of the lease created a month to month tenancy, and the landlord was entitled to nothing further when the tenant vacated the premises at the end of that month. Mississippi State Dep't of Public Welfare v. Howie, 449 So. 2d 772, 1984 Miss. LEXIS 1663 (Miss. 1984).

Double rent was not recoverable prior to date on which tenant herself asserted that the term had expired, where landlord had waived the claim for double rent. Sherrill v. Stewart, 199 Miss. 216, 23 So. 2d 915, 1945 Miss. LEXIS 282 (Miss. 1945).

Tenant’s plea of estoppel in landlord’s action for double rent, upon ground that landlord’s position in present suit was inconsistent with prior suit between the same parties and relating to the same subject matter instituted by the landlord for dispossession wherein landlord waived claim for double rent, was not frivolous, so that the sustaining of plaintiff’s motion to strike the plea constituted reversible error. Sherrill v. Stewart, 197 Miss. 880, 21 So. 2d 11, 1945 Miss. LEXIS 319 (Miss. 1945).

RESEARCH REFERENCES

ALR.

What constitutes tenant’s holding over of leased premises. 13 A.L.R.5th 169.

Validity and construction of lease provision requiring lessee to pay liquidated sum for failure to vacate premises or surrender possession at expiration of lease. 23 A.L.R.2d 1318.

What constitutes willfulness or malice justifying landlord’s collection of statutory multiple damages for tenant’s wrongful retention of possession. 7 A.L.R.4th 589.

What are reports prepared or used by “agency responsible for the regulation or supervision of financial institutions,” within Freedom of Information Act (5 USCS § 552(b)(8)). 48 A.L.R. Fed. 814.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 960.

50 Am. Jur. Proof of Facts 2d 519, Lessee’s Excusable Failure to give Timely Notice Exercising Option to Renew Lease.

Young, Trial Handbook for Mississippi Lawyers § 32:19.

CJS.

51C C.J.S., Landlord and Tenant §§ 73 et seq., 136(1) et seq., 148, 165, 177.

Law Reviews.

Walker, Common Law Protection of Economic Expectancies: “Business Torts” in Mississippi. 50 Miss. L. J. 335, March 1979.

1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.

Editor's Notes —

Pursuant to Miss. Const. Art. 6, Section 171, all references in the Mississippi Code to “justice of the peace” shall mean justice court judge.

Amendment Notes —

The 2018 amendment, in the first paragraph, deleted “(1)” preceding “or more years” and substituted “shall be removed” for “may be removed”; in the paragraph captioned “Second,” inserted “complete” and “and any late fees due” and substituted “who owes the rent” for “owing the same”; and added the paragraph captioned “Third.”

Cross References —

Jurisdiction of county courts, see §9-9-1.

Civil jurisdiction of justices of the peace, see §9-11-9.

Unlawful entry and detainer by tenant, see §§11-25-1 et seq.

Duties of mayor generally, see §21-3-15.

Powers and duties of police justice, see §§21-23-1 et seq.

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

Right of landlord to remove tenant in manner prescribed by this Chapter for nonpayment of rent, not circumscribed by termination procedure specified in section89-8-13, see §89-8-13.

Annulment of lease for unlawful use of premises, see §95-3-23.

JUDICIAL DECISIONS

1. Jurisdiction.

2. Notice.

3. Procedure, generally.

4. Pleading.

5. Evidence.

6. Damages.

7. Appeals.

8. Estoppel and waiver.

9. Miscellaneous.

1. Jurisdiction.

Neither justice of peace, nor circuit court on appeal, in proceeding under this section [Code 1942, § 948], have any jurisdiction to make final and conclusive adjudication of title to property involved. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Circuit court has jurisdiction of both subject matter and parties on appeal with supersedeas from fault judgment by justice of peace, in summary proceeding under this section [Code 1942, § 948], to obtain possession of real property, rendered on invalid service of process, although justice of peace had jurisdiction only of subject matter when default judgment was rendered. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Supreme court has no jurisdiction to make conclusive adjudication of title to property on appeal of proceeding under this section [Code 1942, § 948] begun in justice of peace court, where neither justice of peace nor circuit court on appeal had jurisdiction to make final and conclusive adjudication of title to property as between parties to this litigation. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

County judge had jurisdiction of landlord’s action to oust tenant at end of term, under statute, as against contention that county court has no authority to try causes in vacation. McMillan v. Best, 171 Miss. 811, 158 So. 488, 1935 Miss. LEXIS 14 (Miss. 1935).

2. Notice.

A notice to tenant to vacate the premises was not in compliance with the statute since it failed to require in the alternative the payment of rent or the possession of the premises. Williams v. Shivers, 222 Miss. 626, 76 So. 2d 838, 1955 Miss. LEXIS 646 (Miss. 1955).

Where tenancy, which had been held under definite, different contracts for 1933 and 1934, terminated on December 31, 1934, and proceeding was brought in January, 1935, after notice on January 9, 1935, to vacate, landlord’s failure to give such notice before expiration of lease did not amount to waiver of right to possession; statute requiring two months’ notice being inapplicable. Graham v. Cauthen, 175 Miss. 751, 168 So. 58, 1936 Miss. LEXIS 75 (Miss. 1936).

3. Procedure, generally.

Judgment of county judge in ouster proceeding after termination of lease was not void on ground that county clerk filed all papers in proceeding and issued process, where defendants waived service of process and appeared before county judge by their answer and case was tried by agreement of all parties thereto. Graham v. Cauthen, 175 Miss. 751, 168 So. 58, 1936 Miss. LEXIS 75 (Miss. 1936).

Error to grant peremptory instruction when evidence sharply conflicting as to existence of relation. Lockett v. Lockett, 95 So. 741 (Miss. 1923).

Consolidation of proceedings by vendor and purchaser to eject tenant held error, but not to require reversal, though costs would be charged against landlord. Pinnix v. Jones, 127 Miss. 764, 90 So. 481, 1921 Miss. LEXIS 279 (Miss. 1921).

4. Pleading.

In an action by a landlord to recover possession of a house and lot against her tenant, the court found it unnecessary to review the ruling upon pleas in demurrer by the parties where the case was finally submitted to the jury on evidence which would have been permissible if the pleading had been confined to the two affidavits contemplated by this section [Code 1942, § 948], and Code 1942, § 953. Tanner v. Walsh, 184 Miss. 147, 183 So. 278, 1938 Miss. LEXIS 304 (Miss. 1938).

5. Evidence.

In proceeding under this section [Code 1942, § 948], title to property cannot be conclusively adjudicated but landlord must make at least prima facie showing that he is entitled to possession. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

6. Damages.

Under Code 1942, § 947, double rent may be recovered in an action of unlawful entry and detainer inasmuch as Code 1942, §§ 1043 and 1054 provide for the recovery in such an action of “any amount for arrears of rent,” and recovery therefor is not limited to the summary action provided by this section [Code 1942, § 948]. Ellison v. Landry, 199 Miss. 161, 24 So. 2d 319, 1946 Miss. LEXIS 182 (Miss. 1946).

Plaintiff’s cause of action on defendant’s appeal bond stipulating that should judgment, awarding plaintiff possession of land under this section [Code 1942, § 948] as against defendant’s contention that he was in possession under contract for purchase, be affirmed, defendant would pay all costs and the value of use and occupation of the land after time of taking the appeal, as well as damages for waste or injury, is enforceable, upon affirmance of the judgment, only by an original action on the bond, and not by merely remanding the cause to the court below for the ascertainment of the amount of damages covered by the bond. Hodges v. Jones, 197 Miss. 107, 19 So. 2d 518, 1944 Miss. LEXIS 278 (Miss. 1944).

Interest of plaintiff in the land, where supreme court affirmed judgment granting plaintiff possession as against defendant’s contention that he was in possession under contract for its purchase, was not limited to the rent due but covered all its value, so as to entitle plaintiff to 5 per cent damages on such value under Code 1942, § 1971. Hodges v. Jones, 197 Miss. 107, 19 So. 2d 518, 1944 Miss. LEXIS 278 (Miss. 1944).

Where defendant’s appeal bond stipulated that if judgment awarding owner possession of land was affirmed he would pay all costs and the value of the use and occupation of the land after the time of taking the appeal, but the question as to the amount of damages covered by the bond had not been argued by either counsel, no judgment would be rendered for damages upon affirmance, although appellee could file a motion for such a judgment, to which appellant could reply and appellee could make rejoinder. Hodges v. Jones, 197 Miss. 107, 19 So. 2d 518, 1944 Miss. LEXIS 278 (Miss. 1944).

Proper elements of damages for wrongful suing out injunction to prevent tenants from removing building are attorney’s fees, costs, depreciation, expenses of trial, and reasonable rent. Waldauer v. Parks, 141 Miss. 617, 106 So. 881, 1926 Miss. LEXIS 467 (Miss. 1926).

7. Appeals.

Statutes relating to bond and judgment thereon in proceedings to stay execution of writ of possession in ejectment (Code 1942, §§ 1165 and 1166) have no application to an appeal by tenant from judgment rendered against him in proceeding under this section [Code 1972, § 948] awarding appellee recovery of land as against contention that tenant was in possession under contract for purchase, since this is not an appeal from a judgment in an action of ejectment with a stay of execution. Hodges v. Jones, 197 Miss. 107, 19 So. 2d 518, 1944 Miss. LEXIS 278 (Miss. 1944).

Appeal from judgment of justice of peace dispossessing tenant must be taken within five days after judgment. Simpson v. Boykin, 118 Miss. 701, 79 So. 852, 1918 Miss. LEXIS 123 (Miss. 1918), overruled, Jackson v. Schwartz, 240 So. 2d 60, 1970 Miss. LEXIS 1267 (Miss. 1970).

On appeal to the circuit court the tenant may for the first time make and file an affidavit denying the facts averred by the landlord, upon which the summons was issued, and will be entitled to a trial on the merits of the issue so made. Harvey v. Clark, 81 Miss. 166, 32 So. 906, 1902 Miss. LEXIS 113 (Miss. 1902).

8. Estoppel and waiver.

Where a notice to vacate the premises was defective, but the tenant promised that he would move there was a waiver of written notice. Williams v. Shivers, 222 Miss. 626, 76 So. 2d 838, 1955 Miss. LEXIS 646 (Miss. 1955).

Rule that person who enters into possession of property under agreement with another, either express or implied, to occupy it as tenant is ordinarily estopped to deny title of landlord is applicable only where relationship of landlord and tenant is admitted or established and does not preclude alleged tenant from showing that relationship never existed. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Where tenancy, which had been held under definite, different contracts for 1933 and 1934, terminated on December 31, 1934, and proceeding was brought in January, 1935, after notice on January 9, 1935, to vacate, landlord’s failure to give such notice before expiration of lease did not amount to waiver of right to possession; statute requiring two months’ notice being inapplicable. Graham v. Cauthen, 175 Miss. 751, 168 So. 58, 1936 Miss. LEXIS 75 (Miss. 1936).

9. Miscellaneous.

Question of usury in note secured by deed of trust later foreclosed and effect of usury upon foreclosure sale will not be adjudicated in proceeding under this section [Code 1942, § 948] by purchaser of property at foreclosure sale to obtain possession of the property. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Defendant in possession of land under a parol agreement with owner’s husband, approved by owner, to convey it to defendant upon payment of stipulated price, a portion of which had been paid, was merely a tenant at will or sufferance, thereby entitling owner, who had given notice to vacate and quit, to possession, since defendant’s possession was not under a deed but merely under a parol agreement. Hodges v. Jones, 197 Miss. 107, 19 So. 2d 518, 1944 Miss. LEXIS 278 (Miss. 1944).

Where tenancy of farm land for 1934 terminated on December 31, 1934, and proceeding was brought in January, 1935, after notice on January 9, 1935, to vacate, landlord was not entitled to apportionment of rent for hold-over period which terminated on March 9, 1935, based on 1934 rental. Graham v. Cauthen, 175 Miss. 751, 168 So. 58, 1936 Miss. LEXIS 75 (Miss. 1936).

Landlord who had leased premises to third person had no right of action against old tenant to secure possession of land at end of term, where she was under no contract to give possession to lessee, or to oust tenant holding over. McMillan v. Best, 171 Miss. 811, 158 So. 488, 1935 Miss. LEXIS 14 (Miss. 1935).

Judgment for landlord in statutory proceeding before justice to obtain possession is not conclusive upon title, though determination of title was involved. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

Validity of constable’s deed to execution creditor cannot be conclusively adjudicated in creditor’s action against debtor under statute authorizing removal of holdover tenant, or tenant defaulting in rent; such statutory action being purely possessory. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

Landlord cannot sue to eject tenant after sale of premises. Pinnix v. Jones, 127 Miss. 764, 90 So. 481, 1921 Miss. LEXIS 279 (Miss. 1921).

Lessee holding over pending negotiations for renewal of lease, not entitled to renewal nor to hold under new term. Thomas Hinds Lodge v. Presbyterian Church of Fayette, 103 Miss. 130, 60 So. 66, 1912 Miss. LEXIS 146 (Miss. 1912).

Landlord not entitled to recover rent from tenant remaining in possession after notice upon expiration of term, under circumstances indicating no rent charged. Thomas Hinds Lodge v. Presbyterian Church of Fayette, 103 Miss. 130, 60 So. 66, 1912 Miss. LEXIS 146 (Miss. 1912).

Tenant has reasonable time to remove crop matured at termination of lease; matured crop at end of lease not a growing crop. Opperman v. Littlejohn, 98 Miss. 636, 54 So. 77, 1910 Miss. LEXIS 102 (Miss. 1910).

Where the tenant continues to occupy the premises, and enters upon another term without objection from the landlord, a tenancy for another term is thus created which cannot be terminated in the middle of the term. Usher v. Moss, 50 Miss. 208, 1874 Miss. LEXIS 46 (Miss. 1874).

OPINIONS OF THE ATTORNEY GENERAL

A landlord should sue for eviction in the county where the leased premises are located. Shirley, Aug. 19, 2005, A.G. Op. 05-0406.

RESEARCH REFERENCES

ALR.

What constitutes tenant’s holding over of leased premises. 13 A.L.R.5th 169.

Waiver of statutory demand-for-rent due or of notice-to-quit prerequisite of summary eviction of lessee for nonpayment of rent-modern cases. 31 A.L.R.4th 1254.

Lessor’s retention of past-due rental payments as precluding termination of lease and dispossession of lessee for nonpayment of rent. 39 A.L.R.4th 1204.

Reviewability before trial of order denying qualified immunity to defendant sued in state court under 42 USCS § 1983. 49 A.L.R.5th 717.

When is eviction of tenant by private landlord conducted “under color of state law” for purposes of 42 USCS § 1983. 73 A.L.R. Fed. 78.

Am. Jur.

16 Am. Jur. Pl & Pr Forms (Rev) Landlord and Tenant, Forms 151 et seq. (landlord’s possessory remedies).

CJS.

52A C.J.S., Landlord and Tenant §§ 1335, 1336 et seq., 1361 et seq.

Law Reviews.

1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.

Amendment Notes —

The 2018 amendment rewrote the section, which read: “The landlord or lessor, his legal representatives, agents, or assigns, in order to have the benefit of such proceedings, shall make oath or affirmation of the facts which, according to the last preceding section, authorize the removal of the tenant, describing therein the premises claimed and the amount of rent due and when payable, and that the necessary notice has been given to terminate such tenancy.”

Cross References —

Right of landlord to remove tenant in manner prescribed by this Chapter for nonpayment of rent, not circumscribed by termination procedure specified in section89-8-13, see §89-8-13.

JUDICIAL DECISIONS

1. In general.

Proceedings to dispossess tenant for failure to pay rent must be strictly followed; error to dissolve injunction and dismiss bill where affidavit void. Downing v. Campbell, 131 Miss. 137, 95 So. 312, 1922 Miss. LEXIS 281 (Miss. 1922).

Circuit court, on appeal thereto in proceeding by landlord to get possession of premises, trial therein being de novo, could render judgment for rent up to trial in circuit court though affidavit in lower court did not allege rent due. Stollenwerck v. Eure, 119 Miss. 854, 81 So. 594, 1919 Miss. LEXIS 51 (Miss. 1919).

To summarily remove a tenant for nonpayment of rent the affidavit and proof must show that the rent was due and unpaid, that three days’ notice in writing requiring payment had been given and that the rent cannot be made by distress of the tenant’s goods. Wilson v. Wood, 84 Miss. 728, 36 So. 609, 1904 Miss. LEXIS 74 (Miss. 1904).

An affidavit in a proceeding to remove a tenant holding over under this section [Code 1942, § 949] is defective if it fails to state facts from which the court may determine that the relation of landlord and tenant existed and that the term has expired. Bowles v. Dean, 84 Miss. 376, 36 So. 391, 1904 Miss. LEXIS 46 (Miss. 1904).

A proceeding to remove a tenant holding over should not be dismissed because of a defective affidavit unless the landlord declines to amend. Bowles v. Dean, 84 Miss. 376, 36 So. 391, 1904 Miss. LEXIS 46 (Miss. 1904).

RESEARCH REFERENCES

ALR.

What constitutes tenant’s holding over of leased premises. 13 A.L.R.5th 169.

Commercial leases: application of rule that lease may be canceled only for “material” breach. 54 A.L.R.4th 595.

Amendment Notes —

The 2015 amendment, in (1), substituted “justice court judge, municipal judge” for “justice, mayor,” “municipality in which” for “city, town, or village wherein,” “immediately to remove from the premises” for “forthwith to remove therefrom” and “justice court judge” for “justice”; and added (2).

The 2019 amendment, effective March 22, 2019, substituted “to be named in the summons” for “to be named not less than three (3) nor more than five (5) days from the date of the summons” in (1).

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 182 (writ of possession).

CJS.

52A C.J.S., Landlord and Tenant § 1375.

Amendment Notes —

The 2015 amendment substituted “municipality in which” for “city, town, or village where”, in (1); added (2); and made minor stylistic changes.

The 2019 amendment, effective March 22, 2019, in (1), substituted “a judgment of eviction is granted” for “sufficient cause is not shown to the contrary” and inserted “immediately upon request, except when prohibited or otherwise provided under Section 89-7-45.”

OPINIONS OF THE ATTORNEY GENERAL

If a justice court makes a finding in favor of the landlord in a proceeding for an eviction or removal, the court must immediately issue a warrant of removal according to §§89-7-35 or89-7-41; the constable is entitled to a $25.00 fee for the service of the warrant as allowed by §25-7-27(1)(b), but there is no provision for the justice court to charge any additional fee, other than the constable’s fee, for the warrant of removal. Carter, Apr. 5, 2002, A.G. Op. #02-0157.

If a court makes a finding in favor of the landlord in a proceeding for an eviction or removal, the court shall immediately issue a warrant of removal. Once the landlord pays the constable fee for the removal warrant, the constable may immediately serve the warrant on the tenant. There is no need to wait ten days after a judgment for eviction before a removal warrant is issued. Riley, Dec. 5, 2003, A.G. Op. 03-0657.

If a court makes a finding in favor of the landlord in a proceeding for an eviction or removal, the court shall immediately issue a warrant of removal according to Sections 89-7-35 or 89-7-41. Shirley, Aug. 17, 2005, A.G. Op. 05-0201.

JUDICIAL DECISIONS

1. In general.

Upon appeal defendant may file his counteraffidavit in the circuit court. Bowles v. Dean, 84 Miss. 376, 36 So. 391, 1904 Miss. LEXIS 46 (Miss. 1904).

RESEARCH REFERENCES

ALR.

Specificity of description of premises as affecting enforceability of lease. 73 A.L.R.4th 236.

Amendment Notes —

The 2018 amendment substituted “court” for “magistrate” and “a single adjournment” for “one adjournment” and added the last sentence.

Amendment Notes —

The 2015 amendment substituted “immediately” for “forthwith” in (1); added (2); and made minor stylistic changes.

The 2019 amendment, effective March 22, 2019, in (1), inserted “immediately upon request, except when prohibited or otherwise provided under Section 89-7-45”; and made a gender neutral change.

Cross References —

Rent recoverable in action for unlawful entry and detainer, see §11-25-21.

Judgment for plaintiff and writ of possession in action for unlawful entry and detainer, see §§11-25-23,11-25-113.

OPINIONS OF THE ATTORNEY GENERAL

If a justice court makes a finding in favor of the landlord in a proceeding for an eviction or removal, the court must immediately issue a warrant of removal according to §§89-7-35 or89-7-41; the constable is entitled to a $25.00 fee for the service of the warrant as allowed by §25-7-27(1)(b), but there is no provision for the justice court to charge any additional fee, other than the constable’s fee, for the warrant of removal. Carter, Apr. 5, 2002, A.G. Op. #02-0157.

If a court makes a finding in favor of the landlord in a proceeding for an eviction or removal, the court shall immediately issue a warrant of removal. Once the landlord pays the constable fee for the removal warrant, the constable may immediately serve the warrant on the tenant. There is no need to wait ten days after a judgment for eviction before a removal warrant is issued. Riley, Dec. 5, 2003, A.G. Op. 03-0657.

If a court makes a finding in favor of the landlord in a proceeding for an eviction or removal, the court shall immediately issue a warrant of removal according to Sections 89-7-35 or 89-7-41. Shirley, Aug. 17, 2005, A.G. Op. 05-0201.

RESEARCH REFERENCES

ALR.

Measure and elements of damages for lessee’s breach of covenant as to repairs. 45 A.L.R.5th 251.

Cross References —

Judgment for defendant in proceedings for unlawful entry and detainer, see §§11-25-27,11-25-117.

JUDICIAL DECISIONS

1. In general.

Damages, if any, to be awarded against a landlord who unsucessfully appeals from a judgment in unlawful entry and detainer are not to be measured on the value of the land where the tenant makes no claim that he owns the land or has any right to its ownership as land. McKeithen v. Bush, 201 Miss. 664, 29 So. 2d 310, 1947 Miss. LEXIS 436 (Miss. 1947).

Amendment Notes —

The 2018 amendment substituted “warrant is actually” for “warrant be actually,” inserted “full and complete amount of” and “including any late fees…as provided in the rental agreement” and deleted “or give such security as shall be satisfactory to the magistrate” preceding “to the person entitled to the rent.”

The 2019 amendment, effective March 22, 2019, rewrote the section, which read: “If the proceedings be founded upon the nonpayment of rent, the issuance of the warrant for the removal of the tenant shall be stayed if the person owing the rent shall, before the warrant is actually issued, pay the full and complete amount of rent due, including any late fees that have accrued as a result of the nonpayment of rent as provided in the rental agreement, and the costs of the proceedings, to the person entitled to the rent, for the payment thereof and costs in ten (10) days; and if the rent and costs shall not be paid accordingly, the warrant shall then issue as if the proceedings had not been stayed.”

JUDICIAL DECISIONS

1. In general.

The right to stay proceedings on payment of rent, etc., exists after trial, on appeal, in the circuit court. Flanneken v. Wright, 64 Miss. 217, 1 So. 157, 1886 Miss. LEXIS 47 (Miss. 1886).

Cross References —

Appeal from unlawful entry and detainer court, see §11-51-83.

Appeals from judgment of justice of the peace in civil cases, see §11-51-85.

JUDICIAL DECISIONS

1. In general.

Where a circuit court affirmed the decision of justice of peace for landlord in a suit to remove tenant for nonpayment of rent, the circuit court properly allowed the landlord rent up to the time of the judgment. Williams v. Shivers, 222 Miss. 626, 76 So. 2d 838, 1955 Miss. LEXIS 646 (Miss. 1955).

Circuit court on appeal in proceeding by landlord to get possession of premises, trial therein being de novo, may render judgment for rent up to trial in circuit court though affidavit in lower court did not allege rent due. Stollenwerck v. Eure, 119 Miss. 854, 81 So. 594, 1919 Miss. LEXIS 51 (Miss. 1919).

On appeal to the circuit court the tenant may for the first time make and file an affidavit denying the facts averred by the landlord, upon which the summons was issued, and will be entitled to a trial on the merits of the issue so made. Harvey v. Clark, 81 Miss. 166, 32 So. 906, 1902 Miss. LEXIS 113 (Miss. 1902).

On appeal to the circuit court in proceedings against the tenant, a successful plaintiff may recover rent to the time of trial. Paxton v. Oliver, 70 Miss. 570, 12 So. 799, 1893 Miss. LEXIS 24 (Miss. 1893).

The appeal lies as well in a proceeding against a tenant holding over after the expiration of his term as against a tenant who is in default for the nonpayment of rent. Flanneken v. Wright, 64 Miss. 217, 1 So. 157, 1886 Miss. LEXIS 47 (Miss. 1886).

Amendment Notes —

The 2018 amendment inserted “and any late fees” in the first and second sentences; substituted “justice court shall immediately or within forty-eight (48) hours put the landlord” for “justice court may put the landlord”; and made a minor stylistic change.

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

JUDICIAL DECISIONS

1. In general.

If clause in lease prohibiting removal of property while rent was unpaid created equitable lien, it was not enforceable by statutory remedy of distress for rent. Lake v. Morson, 164 Miss. 401, 145 So. 337, 1933 Miss. LEXIS 237 (Miss. 1933).

When tenant on shares abandons his contract, landlord may sue for damages. Weir v. Cooper, 122 Miss. 225, 84 So. 184, 1920 Miss. LEXIS 430 (Miss. 1920).

No suit lies for rent before it is due; on abandonment of performance of share contract landlord may at once sue for breach. Weir v. Cooper, 122 Miss. 225, 84 So. 184, 1920 Miss. LEXIS 430 (Miss. 1920).

RESEARCH REFERENCES

ALR.

Landlord and tenant: respective rights in excess rent when landlord relets at higher rent during lessee’s term. 50 A.L.R.4th 403.

Specificity of description of premises as affecting enforceability of lease. 73 A.L.R.4th 236.

What constitutes abandonment of residential or commercial lease-modern cases. 84 A.L.R.4th 183.

Landlord’s duty, on tenant’s failure to occupy, or abandonment of, premises, to mitigate damages by accepting or procuring another tenant. 75 A.L.R.5th 1.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 870-872, 937.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Forms 381 et seq. (surrender, termination, and abandonment).

15 Am. Jur. Proof of Facts 2d 209, Landlord’s Reasonable Efforts to Minimize Damages After Tenant’s Breach of Lease.

25 Am. Jur. Proof of Facts 2d 51, Abandonment of Lease of Real Property.

26 Am. Jur. Proof of Facts 2d 525, Landlord’s Acceptance of Abandonment or Surrender of Leased Premises.

CJS.

51C C.J.S., Landlord and Tenant §§ 120 et seq., 143, 174.

52A C.J.S., Landlord and Tenant, § 1323.

Amendment Notes —

The 2001 amendment, effective January 1, 2002, inserted “when perfected in accordance with Uniform Commercial Code Article 9 – Secured Transactions (Section 75-9-101, et seq.)” in the second sentence of (1).

The 2015 amendment substituted “This lien” for “Such lien” in (2) and made a minor stylistic change.

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

Exclusion of landlord’s lien from operation of Uniform Commercial Code relating to secured transactions, see §75-9-104.

Liens generally, see §§85-7-1 through85-7-9.

Enforcement of liens generally, see §§85-7-141 et seq.

JUDICIAL DECISIONS

1. In general.

2. Persons entitled to lien.

3. Advances and supplies.

4. Existence of relation of landlord and tenant.

5. —Tenant under land contract.

6. Rights and liabilities of sublessees.

7. Rights and liabilities of purchasers of agricultural products.

8. Waiver of, or estoppel to assert, lien.

9. Priority of lien.

10. Enforcement of lien.

11. Liability of landlord to persons supplying tenant.

12. Miscellaneous.

12. Miscellaneous.

1. In general.

The landlord lien statute (§89-7-51) does not provide for the ejectment of a tenant from the leased premises for failure to pay rent, but merely gives a landlord a subordinate lien on all articles of personal property. Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 1994 Miss. LEXIS 160 (Miss. 1994).

In determining whether a lien will be extended to include the proceeds of a crop sale, courts look to whether: (1) the crop lender was aware of the landlord/tenant relationship; (2) the crop lender was involved in the sale; (3) the crop lender obtained a subordination agreement from the landlord; or (4) whether the landlord expressly or impliedly waived its statutory lien. Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1990 Miss. LEXIS 1 (Miss. 1990).

Landlord Lien statute affords unpaid landlord no rights in property of third persons on landlord’s premises. By analogy, landlord should not acquire lien under §89-7-51(2) on property not belonging to lessee. Hicks v. Thomas, 516 So. 2d 1344, 1987 Miss. LEXIS 2949 (Miss. 1987).

In determining whether landlord is entitled to lien on crops securing rent of tenant house off leased premises, question is whether house was reasonably necessary to enable tenants to properly carry out farming operations. Dale v. Webb, 166 Miss. 309, 146 So. 875, 1933 Miss. LEXIS 364 (Miss. 1933).

Title to stolen crop when rent reserved therefrom held to be in tenant until division of the crop is made. Bethany v. State, 124 Miss. 870, 87 So. 410, 1921 Miss. LEXIS 186 (Miss. 1921).

Under lease for year title to crop vests in tenant subject to landlord’s lien. Opperman v. Littlejohn, 98 Miss. 636, 54 So. 77, 1910 Miss. LEXIS 102 (Miss. 1910).

Merchants receiving crop to ship out of state and credit on tenant’s account held liable to extent of landlord’s lien. Peets & Norman Co. v. Baker, 95 Miss. 576, 48 So. 898, 1909 Miss. LEXIS 247 (Miss. 1909).

The lien given a landlord under this section [Code 1942, § 908] is effectual to secure the rent of the dwelling house appurtenant to the farm, as well as the rent of arable lands. Scroggins v. Foster, 76 Miss. 318, 24 So. 194, 1898 Miss. LEXIS 76 (Miss. 1898).

A landlord has no lien upon his tenant’s goods, other than agricultural products, and, before distress for rent, a bona fide purchaser of such goods, whether on or off the leased premises, will be protected. Richardson v. McLaurin, 69 Miss. 70, 12 So. 264, 1891 Miss. LEXIS 104 (Miss. 1891).

The lien is only given upon the agricultural products, and is not affected by their removal from the premises. Henry v. Davis, 60 Miss. 212, 1882 Miss. LEXIS 33 (Miss. 1882); Fitzgerald v. Fowlkes, 60 Miss. 270, 1882 Miss. LEXIS 49 (Miss. 1882); Tennessee Joint Stock Land Bank v. Bank of Greenwood, 179 Miss. 534, 172 So. 323, 1937 Miss. LEXIS 2 (Miss. 1937).

There is no lien, except on the agricultural products, before the levy of attachment. Marye v. Dyche, Gates, Gillespie & Co., 42 Miss. 347, 1869 Miss. LEXIS 1 (Miss. 1869).

2. Persons entitled to lien.

A landlord holding the tenant’s note for rent, who during the term and before the rent is due, conveys the rented land, cannot thereafter attach for the rent. The conveyance carries with it, as an incident, the note. Watkins v. Duvall, 69 Miss. 364, 13 So. 727, 1891 Miss. LEXIS 150 (Miss. 1891).

One who was landlord, after conveying the premises to a third person, has no lien for supplies thereafter advanced by him during the term to enable the tenant to make a crop on the land. Watkins v. Duvall, 69 Miss. 364, 13 So. 727, 1891 Miss. LEXIS 150 (Miss. 1891).

The assignment of the rent and lease carries with it the lien. Taylor v. Nelson, 54 Miss. 524, 1877 Miss. LEXIS 42 (Miss. 1877); Newman v. Bank of Greenville, 66 Miss. 323, 5 So. 753, 1889 Miss. LEXIS 103 (Miss. 1889).

3. Advances and supplies.

Under circumstances advances held made by landlord to tenant through third person, and so secured by landlord’s lien. Moak v. Moak, 150 Miss. 289, 116 So. 286, 1928 Miss. LEXIS 105 (Miss. 1928).

Fees for medical services rendered tenant and family are “advances for supplies” within lien statute. Moak v. Moak, 150 Miss. 289, 116 So. 286, 1928 Miss. LEXIS 105 (Miss. 1928).

Lien on crop exists for supplies furnished previous year. Sprouse v. Davis, 141 Miss. 564, 106 So. 824, 1926 Miss. LEXIS 462 (Miss. 1926).

Persons furnishing receiver money with which to gather tenant’s cotton crop does not acquire lien on other cotton grown on leased premises. Goodwin v. Mitchell, 38 So. 657 (Miss. 1905).

Abandonment by tenant not justified by failure of landlord to furnish meat and clothing, unless landlord obligated himself to do so. Petty v. Leggett, 38 So. 549 (Miss. 1905).

Mules are “supplies,” and taking a separate note for their price, reciting that a lien on them and the crop is retained until it is paid, is not a waiver of the landlord’s lien. Trimble v. Durham, 70 Miss. 295, 12 So. 207, 1892 Miss. LEXIS 104 (Miss. 1892).

The lien does not exist if the landlord merely guarantees the payment for supplies advanced by another. The relation of creditor and debtor must exist between the landlord and tenant to support the lien. Ellis v. Jones, 70 Miss. 60, 11 So. 566, 1892 Miss. LEXIS 55 (Miss. 1892).

Advances of supplies for one year cannot be treated as advances for the next so as to be a lien on the products produced the latter year. Lumbley v. Gilruth, 65 Miss. 23, 3 So. 77, 1887 Miss. LEXIS 7 (Miss. 1887).

4. Existence of relation of landlord and tenant.

Where lands were rented to several tenants under their agreements to pay one-third of the cotton and seed, with the landlord paying one-third of the cost of fertilizer, poison and ginning, the relationship of landlord and tenant came into existence and title to and possession of the crop was vested in the tenant, subject to the landlord’s paramount lien to secure the payment of rent. Lewis v. Latham, 224 Miss. 107, 79 So. 2d 811, 1955 Miss. LEXIS 466 (Miss. 1955).

Where former litigation between the parties to a deed of trust and the decree therein established that the parties were claiming title to the land in question adversely to each other, the relation of landlord and tenant necessary to found a landlord’s lien for agricultural products grown on the land during such period of litigation did not exist; and the record in such litigation was an estoppel on the mortgagee to claim that relation. Riley v. Hardy, 185 Miss. 765, 189 So. 514, 1939 Miss. LEXIS 187 (Miss. 1939).

The relation of landlord and tenant must exist as a result of contract, either express or implied, in order to give the former a lien on the agricultural products produced on the land. Riley v. Hardy, 185 Miss. 765, 189 So. 514, 1939 Miss. LEXIS 187 (Miss. 1939).

Relation of landlord and tenant did not exist between mortgagors disputing right to possession of purchaser under deed of trust so as to create lien on agricultural products. Raleigh State Bank v. Williams, 150 Miss. 766, 117 So. 365, 1928 Miss. LEXIS 183 (Miss. 1928).

No particular form of expression is necessary to create a lease. Board of Sup'rs v. Imperial Naval Stores Co., 93 Miss. 822, 47 So. 177 (Miss. 1908).

Lease of land for 99 years or more is governed by principles of estates for years and gives no right to fee. Moss Point Lumber Co. v. Board of Sup'rs, 89 Miss. 448, 42 So. 290, 1906 Miss. LEXIS 103 (Miss. 1906).

A contract that one of the parties is to furnish the other a dwelling house for himself and family with adjacent lands, and with teams and utensils, and that such other is to cultivate the land and pay one-half the crop for the use of the property, creates the relation of landlord and tenant. Schlicht v. Callicott, 76 Miss. 487, 24 So. 869, 1898 Miss. LEXIS 102 (Miss. 1898).

5. —Tenant under land contract.

Contract to convey may stipulate that annual notes in payment will be collected as rental value of the land. Pennington v. Richie, 102 Miss. 133, 58 So. 657 (Miss. 1911).

Purchaser in possession under parol contract did not create relation of landlord and tenant by executing rent notes promising to pay one bale of cotton to vendor if he should decide not to take the place. Pennington v. Richie, 102 Miss. 133, 58 So. 657 (Miss. 1911).

Upon vendee in possession under bond for title failing to pay installments, parties assumed relation of landlord and tenant. W. L. Robinson Co. v. Weathersby, 101 Miss. 724, 57 So. 983, 1911 Miss. LEXIS 146 (Miss. 1911).

Peremptory instruction for rent held erroneous where notes given for the purchase price. Caston v. Turner, 95 Miss. 303, 48 So. 721, 1909 Miss. LEXIS 235 (Miss. 1909).

Under contract to convey, overpayment on first installment should be applied on second year’s rent. Flowers-Carruth Co. v. J. L. Moyse & Bros., 95 Miss. 174, 48 So. 523, 1909 Miss. LEXIS 218 (Miss. 1909).

Where purchase money notes are given and the deed specified that they shall be considered as rent, and that a landlord’s lien is retained, the holder has a valid equitable lien upon the agricultural products. Maynard v. Cocke, 71 Miss. 493, 15 So. 788, 1893 Miss. LEXIS 88 (Miss. 1893).

6. Rights and liabilities of sublessees.

Landlord held entitled to lien on crops, whether produced by tenant or subtenant. Dale v. Webb, 166 Miss. 309, 146 So. 875, 1933 Miss. LEXIS 364 (Miss. 1933).

Subtenant by reason of liability of his crops to landlord’s lien, held a surety for original tenant’s debt for supplies. Powell v. Tomlinson, 129 Miss. 354, 92 So. 226, 1922 Miss. LEXIS 47 (Miss. 1922).

Lessor held not entitled to retain goods of deceased lessee to pay indebtedness of sublessee. Hyatt v. Southern R. Co., 88 Miss. 546, 41 So. 3, 1906 Miss. LEXIS 158 (Miss. 1906).

Lessee held not liable for advances made to sublessee without his consent. Hyatt v. Southern R. Co., 88 Miss. 546, 41 So. 3, 1906 Miss. LEXIS 158 (Miss. 1906).

Where one has purchased from the tenant crops subject to lien, a subtenant may compel the landlord first to enforce the liability of such purchaser for the value of the crop purchased. Applewhite v. Nelms, 71 Miss. 482, 14 So. 443, 1893 Miss. LEXIS 104 (Miss. 1893).

A subtenant occupies the relation of surety for the rent due by the tenant, and in equity may compel the landlord to first resort to the estate of the tenant and preserve whatever securities he may have from the tenant, so that the subtenant, whose crop is taken for rent, may be subrogated thereto. Applewhite v. Nelms, 71 Miss. 482, 14 So. 443, 1893 Miss. LEXIS 104 (Miss. 1893); Dale v. Webb, 166 Miss. 309, 146 So. 875, 1933 Miss. LEXIS 364 (Miss. 1933); Hooks v. Burns, 168 Miss. 723, 152 So. 469, 1934 Miss. LEXIS 374 (Miss. 1934).

7. Rights and liabilities of purchasers of agricultural products.

Landlord’s lien on agricultural products as security for unpaid rent is paramount to rights of purchaser of warehouse receipts for product issued in tenant’s name in absence of proof that tenant has dealt honestly with his landlord. Phillips v. Box, 204 Miss. 231, 37 So. 2d 266, 1948 Miss. LEXIS 358 (Miss. 1948).

Bona fide purchaser of warehouse receipts held to acquire stored cotton free from landlord’s lien. McGee v. Carver, 141 Miss. 463, 106 So. 760, 1926 Miss. LEXIS 444 (Miss. 1926).

Purchaser of cotton from tenant held liable to landlord for rent. Walker-Durr Co. v. Mitchell, 97 Miss. 231, 52 So. 583, 1910 Miss. LEXIS 248 (Miss. 1910).

A landlord has a lien to secure his rent and supplies for the current year on all agricultural products raised on the leased premises and may assert it against the products or the purchaser, with or without notice of such products. Ball, Brown & Co. v. Sledge, 82 Miss. 749, 35 So. 447, 1903 Miss. LEXIS 203 (Miss. 1903); Tennessee Joint Stock Land Bank v. Bank of Greenwood, 179 Miss. 534, 172 So. 323, 1937 Miss. LEXIS 2 (Miss. 1937).

The lien does not follow the agricultural products out of the state, and one who purchases them out of the state takes free of the lien, although he had notice of its existence. Millsaps v. Tate, 75 Miss. 150, 21 So. 663, 1897 Miss. LEXIS 86 (Miss. 1897); Ball, Brown & Co. v. Sledge, 82 Miss. 749, 35 So. 447, 1903 Miss. LEXIS 203 (Miss. 1903).

A commission merchant in another state who has made advances to a planter and received and sold in good faith cotton shipped by him for his account, is not answerable for the proceeds thereof to one who had a landlord’s lien on the cotton when shipped. Chism v. Thomson, 73 Miss. 410, 19 So. 210, 1895 Miss. LEXIS 152 (Miss. 1895).

A purchaser of agricultural products grown on land in the adverse possession of another is not liable to account to the true owner of the land for the value of such products, even though he knew at the time he bought them of the want of title to the land of the occupant and who was the real owner of the land. Morgan v. Long, 73 Miss. 406, 19 So. 98, 1895 Miss. LEXIS 130 (Miss. 1895).

Neither ignorance as to the tenancy by a purchaser, nor false statement by the tenant as to his right to sell will defeat the landlord’s claim. Warren v. Jones, 70 Miss. 202, 14 So. 25, 1892 Miss. LEXIS 145 (Miss. 1892).

The landlord’s right to recover from one to whom the agricultural products grown on the demised premises have been sold by the tenant is not affected by want of notice by the purchaser that the rent is due; the rule of caveat emptor applies. Eason v. Johnson, 69 Miss. 371, 12 So. 446, 1891 Miss. LEXIS 114 (Miss. 1891).

The lien will prevail against a bona fide purchaser for value. Newman v. Bank of Greenville, 66 Miss. 323, 5 So. 753, 1889 Miss. LEXIS 103 (Miss. 1889); W. L. Robinson Co. v. Weathersby, 101 Miss. 724, 57 So. 983, 1911 Miss. LEXIS 146 (Miss. 1911).

It being a crime for a person with notice of the lien to remove the products from the leased premises without the landlord’s consent, the landlord can maintain an action for damages against the purchaser with notice of products subject to the lien for rent, etc. Cohn v. Smith, 64 Miss. 816, 2 So. 244, 1887 Miss. LEXIS 110 (Miss. 1887).

8. Waiver of, or estoppel to assert, lien.

A landlord did not waive her right to the statutory landlord’s lien merely because the lease contract did not specifically refer to the landlord’s lien statute since the landlord’s lien exists by positive law without writing or record. Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1990 Miss. LEXIS 1 (Miss. 1990).

A landlord’s conduct did not constitute a waiver of the landlord’s lien, even though the landlord permitted the lessee to harvest, market and sell the crops as he saw fit, where, for the most part, rent was paid prior to the harvest and sale of crops, and the lender had actual notice of its debtor’s landlord/tenant relationship. Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1990 Miss. LEXIS 1 (Miss. 1990).

A landlord’s lien under this section [Code 1942, § 908] can be waived. Martin v. Leflore Bank & Trust Co., 220 Miss. 106, 70 So. 2d 66, 1954 Miss. LEXIS 414 (Miss. 1954).

Proof of waiver of landlord’s lien on agricultural products for rent must be established by preponderant testimony which affirmatively shows an agreement by landlord, or conduct tantamount thereto, that tenant may deal with product as if free of any lien. Phillips v. Box, 204 Miss. 231, 37 So. 2d 266, 1948 Miss. LEXIS 358 (Miss. 1948).

Waiver of landlord’s lien in favor of purchaser of warehouse receipts for product, issued in tenant’s name, is not shown by evidence that landlord accepted farm equipment as part payment of rent and offered to accept tenant’s notes for balance, which offer tenant ignored and had cotton crop ginned, baled and placed in warehouse taking warehouse receipts in his own name and selling warehouse receipts, all without knowledge of landlord who attached cotton promptly after locating it in warehouse. Phillips v. Box, 204 Miss. 231, 37 So. 2d 266, 1948 Miss. LEXIS 358 (Miss. 1948).

Evidence held to establish that landlord did not, by its conduct, impliedly permit tenant to store cotton in compress, take warehouse receipts therefor in tenant’s name, and dispose of receipts, so as to waive landlord’s lien on cotton. Tennessee Joint Stock Land Bank v. Bank of Greenwood, 179 Miss. 534, 172 So. 323, 1937 Miss. LEXIS 2 (Miss. 1937).

Evidence held not to warrant finding that landlord clothed tenant with indicia of ownership of cotton, or was negligent, or lacking in vigilance, so as to be estopped from asserting lien on cotton as against bona fide purchasers of negotiable warehouse receipts, issued in name of tenant, for cotton. Tennessee Joint Stock Land Bank v. Bank of Greenwood, 179 Miss. 534, 172 So. 323, 1937 Miss. LEXIS 2 (Miss. 1937).

To effect waiver of landlord’s lien on agricultural products, evidence must preponderate that landlord either affirmatively agreed to permit, or by his conduct and course of pleadings permitted, tenant to deal with agricultural products as though they had been freed from landlord’s lien. Tennessee Joint Stock Land Bank v. Bank of Greenwood, 179 Miss. 534, 172 So. 323, 1937 Miss. LEXIS 2 (Miss. 1937).

Waiver of lien of rent held limited, and to give no right to buy from tenant. Pitts v. Baskin, 140 Miss. 443, 106 So. 10, 1925 Miss. LEXIS 278 (Miss. 1925).

Landlord held estopped to assert lien on crops. Judd v. Delta Grocery & Cotton Co., 133 Miss. 866, 98 So. 243, 1923 Miss. LEXIS 191 (Miss. 1923).

Landlord who habitually permits sharecrop tenant to sell products cannot enforce landlord’s lien against or recover value of products from good faith purchaser. Phillips v. Thomas, 128 Miss. 729, 91 So. 420, 1922 Miss. LEXIS 160 (Miss. 1922).

Landlord permitting tenant to sell cotton and receiving rent from proceeds, held estopped to assert lien for advances where he gave no notice thereof to purchaser. A. C. Seavey & Sons v. Godbold, 99 Miss. 113, 54 So. 838, 1910 Miss. LEXIS 23 (Miss. 1910).

A landlord who has waived his lien in favor of one who advances supplies to the tenant on the security of a trust deed on his cotton crop, after receiving from the tenant four bales and mingling them with his own, is estopped to deny that a bale of cotton seized by the trustee was grown by the tenant on the premises. Alexander v. Zeigler, 84 Miss. 560, 36 So. 536, 1904 Miss. LEXIS 64 (Miss. 1904).

A landlord who waives his lien for a specified sum to enable his tenant to secure advances from another by a deed of trust on his crops is bound by the waiver, although the deed of trust recites that the advances were to be used in making crops on other lands also and does not expressly require advances to the full extent of the waiver. Dreyfus v. W. A. Gage & Co., 84 Miss. 219, 36 So. 248, 1904 Miss. LEXIS 29 (Miss. 1904).

9. Priority of lien.

Two lessors did not have priority over a bank with a perfected lien on a lessee’s government payments, even though the bank had actual notice of the leases before it loaned money to the lessee as: (1) Miss. Code Ann. §75-9-109(a)(2) applied to agricultural liens; (2) perfection of agricultural liens was required under Miss. Code Ann. §§89-7-51(1) and75-9-101 et seq.; (3) the lessors did not perfect their liens; (4) there was no fact issue as to whether there was confidential relationship between the bank and the lessors for constructive trust purposes; and (5) the bank was not unjustly enriched as it was entitled to apply the government payments to the lessee’s loan. Pair A Dice Farms, Inc. v. InSouth Bank of Covington, 118 So.3d 165, 2012 Miss. App. LEXIS 802 (Miss. Ct. App. 2012), cert. denied, 2013 Miss. LEXIS 387 (Miss. July 25, 2013), cert. denied, 117 So.3d 330, 2013 Miss. LEXIS 388 (Miss. 2013).

Unless the crop lender has taken steps to subordinate a landlord’s statutory priority, the landlord’s interest in the proceeds of a crop sale will be paramount to the crop lender who receives the proceeds. The landlord has the inside track in a priority clash over the proceeds of a crop sale. Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1990 Miss. LEXIS 1 (Miss. 1990).

Unless a landlord has expressly or impliedly waived the statutory landlord’s lien, its rights are superior to all other interests, including those created by Chapter 9 of the Uniform Commercial Code. Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1990 Miss. LEXIS 1 (Miss. 1990).

Where the bank advances money to a tenant who with the landlord gave the bank a trust deed and the landlord taking a subordinate trust deed to tenant’s farm machinery and equipment and later the bank without knowledge of the landlord advanced more money to the tenant for the operation of the farm, and the tenant paid the bank from proceeds of sale of crops, the bank applying the proceeds on the first loan and also on loan advanced without knowledge of landlord, the landlord had a superior lien on the crops because the bank was not authorized to apply proceeds on the loan made without knowledge of landlord. Cavins v. Planters Bank & Trust Co., 187 F.2d 906, 1951 U.S. App. LEXIS 2339 (5th Cir. Miss. 1951).

Plaintiff held to have waived lien for ginning charges on cotton by delivering to landlord without notice of his lien. Patterson v. Jones-Wilson Mercantile Co., 117 Miss. 355, 78 So. 294, 1918 Miss. LEXIS 186 (Miss. 1918).

Landlord’s lien or that of seller under contract to convey is superior to lien of deed of trust given by tenant on crop for advances of supplies. Bedford v. Gartrell, 88 Miss. 429, 40 So. 801, 1906 Miss. LEXIS 136 (Miss. 1906).

Landlord’s lien held superior to that of person furnishing money to tenant with which to gather crop. Goodwin v. Mitchell, 38 So. 657 (Miss. 1905).

The owner of a cotton gin and press who gins and bales cotton, furnishing the bagging and ties, and who is paid therefor by the tenant, has a lien thereon superior to all other liens for his services, where its preparation for market is not otherwise provided for by the landlord or other interested parties. Duncan v. Jayne, 76 Miss. 133, 23 So. 392, 1898 Miss. LEXIS 55 (Miss. 1898).

10. Enforcement of lien.

In order for a landlord to enforce the statutorily-created lien on a tenant’s personal property, he or she must follow the attachment for rent statutes (§§89-7-55 through89-7-125). Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 1994 Miss. LEXIS 160 (Miss. 1994).

The landlord is not confined to the statutory remedy; the lien is broader. Henry v. Davis, 60 Miss. 212, 1882 Miss. LEXIS 33 (Miss. 1882); Fitzgerald v. Fowlkes, 60 Miss. 270, 1882 Miss. LEXIS 49 (Miss. 1882); Cohn v. Smith, 64 Miss. 816, 2 So. 244, 1887 Miss. LEXIS 110 (Miss. 1887); Newman v. Bank of Greenville, 66 Miss. 323, 5 So. 753, 1889 Miss. LEXIS 103 (Miss. 1889).

The lien can be enforced after the termination of the lease. Fitzgerald v. Fowlkes, 60 Miss. 270, 1882 Miss. LEXIS 49 (Miss. 1882).

11. Liability of landlord to persons supplying tenant.

Landlord waiving lien in favor of person supplying tenant, who took deed of trust on crop, liable to extent of waiver on collecting note out of crop; before landlord can be held on waiver of lien on crops raised by tenant by person holding deed of trust from tenant, other securities embraced therein must be resorted to. H. & C. Newman, Inc. v. Delta Grocery & Cotton Co., 138 Miss. 683, 103 So. 373, 1925 Miss. LEXIS 85 (Miss. 1925).

The landlord, in an action against him and the tenant, cannot be held liable for goods sold to the tenant merely upon proof that he waived in plaintiff’s favor his landlord’s lien on the crop and afterwards appropriated the same. Whether he would be liable in another form of action is not decided. Chism v. Alcorn, 71 Miss. 506, 15 So. 73, 1893 Miss. LEXIS 109 (Miss. 1893).

12. Miscellaneous.

12. Miscellaneous.

Render of judgment in favor of a tenant on the tenant’s unlawful-reentry issue was appropriate because the evidence showed that the landlord acted without authority in using self-help to reenter the leased property, as the lease did not provide for such action, and failed to provide the tenant with a notice and hearing before reentering the property. Crowell v. Butts, 153 So.3d 719, 2013 Miss. App. LEXIS 866 (Miss. Ct. App. 2013), cert. denied, 145 So.3d 674, 2014 Miss. LEXIS 395 (Miss. 2014), aff'd in part and rev'd in part, 153 So.3d 684, 2014 Miss. LEXIS 530 (Miss. 2014).

A landlord’s actions in locking up a tenant’s possessions pursuant to §89-7-51(2) did not violate due process requirements where the landlord failed to use the attachment for rent statutes; since §89-7-51 did not authorize the landlord to use self-help to seize the tenant’s property, there was no state action. Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 1994 Miss. LEXIS 160 (Miss. 1994).

Landlord is liable for conversion of personal property belonging to tenant found on leased premises on taking possession because of nonpayment of rent. Clark v. Service Auto Co., 143 Miss. 602, 108 So. 704, 1926 Miss. LEXIS 299 (Miss. 1926).

Lease contract that landlord may re-enter without legal proceedings is binding to extent that landlord, entitled to possession unlawfully withheld, may re-enter without breaking doors or passages of ingress and without personal violence. Clark v. Service Auto Co., 143 Miss. 602, 108 So. 704, 1926 Miss. LEXIS 299 (Miss. 1926).

Landlord, undertaking to sell tenant’s property and settle with subtenants and heirs without taking out letters of administration or proceeding according to statutes, held liable as administrator de son tort. Blount v. Phillips, 142 Miss. 286, 107 So. 21, 1926 Miss. LEXIS 56 (Miss. 1926).

No suit lies for rent before it is due; on abandonment of performance of share contract landlord may at once sue for breach. Weir v. Cooper, 122 Miss. 225, 84 So. 184, 1920 Miss. LEXIS 430 (Miss. 1920).

Landlord with knowledge of deed of trust, who had waived his lien except for rent in favor of such deed of trust, who sold the crop himself and after deducting amount due him paid balance to the tenant instead of the mortgagee, was guilty of conversion. Evans v. Carpenter, 115 Miss. 572, 76 So. 550, 1917 Miss. LEXIS 235 (Miss. 1917).

Creditor secured by deed of trust, not excused for failure to enter satisfaction of deed of trust on margin of record, where crop delivered in satisfaction of debt with landlord’s consent, though being liable for rent. Coon v. Robinson Mercantile Co., 110 Miss. 700, 70 So. 884, 1916 Miss. LEXIS 192 (Miss. 1916).

An assignee of notes given by a tenant to his landlord for rent cannot assert his lien against one who makes advances to the tenant on the security of the landlord’s waiver and the tenant’s trust deed on the crops when he has concealed his ownership of the notes and induced him to believe that the landlord’s waiver and the tenant’s trust deed will give him first lien. Dreyfus v. W. A. Gage & Co., 84 Miss. 219, 36 So. 248, 1904 Miss. LEXIS 29 (Miss. 1904).

A creditor receiving in this state in payment of his debt cotton taken from him under a landlord’s lien may enforce repayment from the debtor, although he had executed a receipt in full upon receiving the cotton. He cannot do this, however, if he received the cotton out of the state. Ball, Brown & Co. v. Sledge, 82 Miss. 749, 35 So. 447, 1903 Miss. LEXIS 203 (Miss. 1903).

RESEARCH REFERENCES

ALR.

Modern views as to validity, under federal constitution, of state prejudgment attachment, garnishment, and replevin procedures, distraint procedures under landlords’ or innkeepers’ lien statutes, and like procedures authorizing summary seizure of property. 18 A.L.R. Fed. 223.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 545 et seq.

7 Am. Jur. Legal Forms 2d, Crops § 80:26 (lease-provision-lessor’s title in crops until payment of rent).

11B Am. Jur. Legal Forms 2d, Leases of Real Property §§ 161:1134-161:1136 (waiver of lessor’s lien).

12 Am. Jur. Legal Forms 2d, Liens § 165:22 (notice of landlord’s lien and of sale).

CJS.

52 C.J.S., Landlord and Tenant §§ 1199 et seq.

Amendment Notes —

The 2001 amendment, effective January 1, 2002, rewrote the last sentence.

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

Materialman’s lien, see §85-7-131.

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 560.

CJS.

52 C.J.S., Landlord and Tenant §§ 1227 et seq.

Cross References —

Attachments against debtors generally, see §§11-33-1 et seq.

Fee of officer issuing attachment or distress for rent or supplies, see §25-7-77.

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

Distraint of goods removed before debt becomes due, see §89-7-77.

Tenant’s remedy against landlord for improper distress, see §89-7-115.

JUDICIAL DECISIONS

1. In general.

2. Claims within scope of statute.

3. Effect of transfer of title to leased property.

4. Rights of assignee of rent note.

5. Sale of tenant’s goods; assignment for creditors.

6. Liability of sublessee.

7. Procedure.

1. In general.

Render of judgment in favor of a tenant on the tenant’s unlawful-reentry issue was appropriate because the evidence showed that the landlord acted without authority in using self-help to reenter the leased property, as the lease did not provide for such action, and failed to provide the tenant with a notice and hearing before reentering the property. Crowell v. Butts, 153 So.3d 719, 2013 Miss. App. LEXIS 866 (Miss. Ct. App. 2013), cert. denied, 145 So.3d 674, 2014 Miss. LEXIS 395 (Miss. 2014), aff'd in part and rev'd in part, 153 So.3d 684, 2014 Miss. LEXIS 530 (Miss. 2014).

In order for a landlord to enforce the statutorily-created lien on a tenant’s personal property, he or she must follow the attachment for rent statutes (§§89-7-55 through89-7-125). Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 1994 Miss. LEXIS 160 (Miss. 1994).

Attachment for rent is not of itself judicial proceeding. Barlow v. Serio, 129 Miss. 432, 91 So. 573, 1922 Miss. LEXIS 9 (Miss. 1922).

Distress for rent, not being a judicial proceeding, depends for its validity upon compliance with the statute in making the required affidavit and bond. Pate v. Shannon, 69 Miss. 372, 13 So. 729, 1891 Miss. LEXIS 153 (Miss. 1891).

There must be a lease to entitle to the remedy. Tifft v. Verden, 19 Miss. 153, 1848 Miss. LEXIS 165 (Miss. 1848).

2. Claims within scope of statute.

Clause in lease prohibiting removal of property while rent unpaid, if creating equitable lien, was not enforceable by statutory remedy of distress for rent. Lake v. Morson, 164 Miss. 401, 145 So. 337, 1933 Miss. LEXIS 237 (Miss. 1933).

Stipulation for attorney’s fee in rent note not enforceable in attachment for rent. O'Keefe v. McLemore, 125 Miss. 394, 87 So. 655, 1921 Miss. LEXIS 122 (Miss. 1921).

The statute only covers a demand for rent. An agreement of the tenant as part of the expressed consideration of the lease, to pay as rent a debt which is not such in fact, will not change this. Paxton v. Kennedy, 70 Miss. 865, 12 So. 546, 1893 Miss. LEXIS 2 (Miss. 1893).

A promise to pay the taxes for a given year on a certain tract of land for the rent of premises is sufficiently definite as to amount to give the landlord a lien. Roberts v. Sims, 64 Miss. 597, 2 So. 72, 1887 Miss. LEXIS 76 (Miss. 1887).

It will be sufficient if the amount of the rent can be ascertained by calculation. Brooks v. Cunningham, 49 Miss. 108, 1873 Miss. LEXIS 100 (Miss. 1873); Thrasher v. Gillespie, 52 Miss. 840, 1876 Miss. LEXIS 304 (Miss. 1876); Roberts v. Sims, 64 Miss. 597, 2 So. 72, 1887 Miss. LEXIS 76 (Miss. 1887).

The rent must be definite. Briscoe v. McElween, 43 Miss. 556, 1870 Miss. LEXIS 66 (Miss. 1870).

3. Effect of transfer of title to leased property.

The maker of a rent note, payable to bearer, and transferred in good faith for value before maturity, cannot show as a failure of consideration of the note that the title of his lessor passed to another before the term began. Davis v. Blanton, 71 Miss. 821, 15 So. 132, 1894 Miss. LEXIS 41 (Miss. 1894).

A landlord who takes the note of his tenant for rent, and afterwards, during the term and before the rent is due, conveys the rented land to another, cannot thereafter attach for the rent. Watkins v. Duvall, 69 Miss. 364, 13 So. 727, 1891 Miss. LEXIS 150 (Miss. 1891).

The purchaser of land at partition sale is entitled to the rent falling due after his purchase, if not expressly reserved, and may distrain therefor, notwithstanding a rent note previously given therefor had been assigned by the landlord to another, who contests the purchaser’s right to such rent. Kessee v. Sloan, 69 Miss. 369, 11 So. 631, 1891 Miss. LEXIS 98 (Miss. 1891).

4. Rights of assignee of rent note.

The assignee of a rent note may distrain for the amount thereof. Coker v. Britt, 78 Miss. 583, 29 So. 833, 1900 Miss. LEXIS 177 (Miss. 1900).

The assignee of a rent note who has advanced supplies to the tenant on a parol agreement that he should be subrogated to all the rights of the landlord in respect thereto, is not made landlord thereby and cannot distrain for the supplies. Coker v. Britt, 78 Miss. 583, 29 So. 833, 1900 Miss. LEXIS 177 (Miss. 1900).

5. Sale of tenant’s goods; assignment for creditors.

Bona fide purchaser of tenant’s goods, other than agricultural products, before distress for the rent, is protected. White v. Miazza-Woods Const. Co., 122 Miss. 213, 84 So. 181, 1920 Miss. LEXIS 428 (Miss. 1920).

Goods liable to be attached for rent, assigned to an assignee in an ordinary voluntary assignment for creditors, may still be subjected to the landlord’s demand. Paine v. Sykes, 72 Miss. 351, 16 So. 903, 1894 Miss. LEXIS 119 (Miss. 1894).

6. Liability of sublessee.

There is no privity of contract between a landlord and a subtenant, and the former cannot maintain an attachment for rent against the latter. Ashley v. Young, 79 Miss. 129, 29 So. 822, 1901 Miss. LEXIS 16 (Miss. 1901).

7. Procedure.

The agent must carry on the proceedings in the landlord’s name. Parker v. Stovall, 31 Miss. 446, 1856 Miss. LEXIS 98 (Miss. 1856).

RESEARCH REFERENCES

ALR.

What sort of claim, obligation, or liability is within contemplation of statute providing for attachment, or giving right of action for indemnity, before a debt or liability is due. 58 A.L.R.2d 1451.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 591, 615.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 134 (warrant for distraint of tenant’s personalty to secure payment of rent).

CJS.

52 C.J.S., Landlord and Tenant §§ 1259, 1272 et seq.

Law Reviews.

Williamson and Redfern, Lender liability in Mississippi: Part II loan commitments and agreements. 59 Miss. L. J. 71, Spring, 1989.

Amendment Notes —

The 2015 amendment, substituted “justice court judge” for “justice of the peace” in the first sentence and made minor stylistic changes.

JUDICIAL DECISIONS

1. In general.

Judgment for lessee against lessor for amount by which total of sums agreed to be deducted from monthly rent and paid lessor’s creditor by lessee exceeded rent for period before partial destruction of leased mill by fire will not be affirmed on remittitur of amount exceeding sums deductible for such period only, but must be reversed and cause remanded for entry of judgment in proper amount. Moore-Curry Lumber Co. v. Wogan, 170 Miss. 512, 155 So. 329, 1934 Miss. LEXIS 162 (Miss. 1934).

Attorney’s fees are recoverable in suit for damages for attachment for rent. Wigginton v. Moore, 147 Miss. 169, 113 So. 326, 1927 Miss. LEXIS 346 (Miss. 1927).

Person acting as agent in renting land may not sue out attachment for rent. Wigginton v. Moore, 147 Miss. 169, 113 So. 326, 1927 Miss. LEXIS 346 (Miss. 1927).

In replevin for rent due where the attachment writ was not signed or sworn to, but the landlord testified that he had verified his complaint, which was denied, it was error to overrule a motion to quash the attachment and to refuse to submit the question to the jury. Wolf v. Simmons, 75 Miss. 539, 23 So. 586, 1897 Miss. LEXIS 147 (Miss. 1897).

Distress for rent, not being a judicial proceeding, depends for its validity upon compliance with the statute in making the required affidavit and bond. Pate v. Shannon, 69 Miss. 372, 13 So. 729, 1891 Miss. LEXIS 153 (Miss. 1891).

A landlord cannot unite several distinct claims for different parcels of land, under different demises, in a single attachment for rent; He must resort to distinct proceedings for each. Briscoe v. McElween, 43 Miss. 556, 1870 Miss. LEXIS 66 (Miss. 1870).

OPINIONS OF THE ATTORNEY GENERAL

Justice Court had jurisdiction over matter where landlord sought to enforce lien on personal property of tenant in amount of $7,000. Formby, March 23, 1994, A.G. Op. #94-0122.

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 615.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Forms 132, 133 (landlord’s bond in distress proceedings).

CJS.

52 C.J.S., Landlord and Tenant §§ 1287 et seq.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, Section 171, all references in the Mississippi Code to “justice of the peace” shall mean justice court judge.

Cross References —

Powers and duties of justice court judges generally, see §§11-9-101 et seq.

JUDICIAL DECISIONS

1. In general.

Judgment for lessee against lessor for amount by which total of sums agreed to be deducted from monthly rent and paid lessor’s creditor by lessee exceeded rent for period before partial destruction of leased mill by fire will not be affirmed on remittitur of amount exceeding sums deductible for such period only, but must be reversed and cause remanded for entry of judgment in proper amount. Moore-Curry Lumber Co. v. Wogan, 170 Miss. 512, 155 So. 329, 1934 Miss. LEXIS 162 (Miss. 1934).

The mayor of a municipality who is ex officio a justice of the peace, may issue the attachment, and his jurisdiction in such case is co-extensive with the county. Smith v. Jones, 65 Miss. 276, 3 So. 740, 1887 Miss. LEXIS 53 (Miss. 1887).

The affidavit need not be made before the same officer who issues the writ, nor before an officer in the same county in which the writ is to run, but can be made before any officer authorized to administer oaths. Cassedy v. Mayers, 64 Miss. 356, 1 So. 510 (Miss. 1886).

Amendment Notes —

The 2015 amendment, substituted “has been made” for “shall have been made” and “justice court judge” for “justice” and made minor stylistic changes.

JUDICIAL DECISIONS

1. In general.

Judgment for lessee against lessor for amount by which total of sums agreed to be deducted from monthly rent and paid lessor’s creditor by lessee exceeded rent for period before partial destruction of leased mill by fire will not be affirmed on remittitur of amount exceeding sums deductible for such period only, but must be reversed and cause remanded for entry of judgment in proper amount. Moore-Curry Lumber Co. v. Wogan, 170 Miss. 512, 155 So. 329, 1934 Miss. LEXIS 162 (Miss. 1934).

A seizure and sale by a town marshal acting as constable without the limits of the town and the supervisor’s district in which the town is situated, under a distress warrant issued by the mayor of such town, are invalid and confer no title upon the purchaser at the sale. Riley v. James, 73 Miss. 1, 18 So. 930, 1895 Miss. LEXIS 117 (Miss. 1895).

RESEARCH REFERENCES

CJS.

52 C.J.S., Landlord and Tenant §§ 1286 et seq.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, Section 171, all references in the Mississippi Code to “justice of the peace” shall mean justice court judge.

JUDICIAL DECISIONS

1. In general.

Evidence sustained finding that new oral contract under which tenant was to pay what he could as reasonable rent for possession of land had replaced written contract, and verdict that landlord’s attachment for rent was wrongfully sued out. Graham v. Swinney, 174 Miss. 579, 165 So. 438, 1936 Miss. LEXIS 208 (Miss. 1936).

Judgment for lessee against lessor for amount by which total of sums agreed to be deducted from monthly rent and paid lessor’s creditor by lessee exceeded rent for period before partial destruction of leased mill by fire will not be affirmed on remittitur of amount exceeding sums deductible for such period only, but must be reversed and cause remanded for entry of judgment in proper amount. Moore-Curry Lumber Co. v. Wogan, 170 Miss. 512, 155 So. 329, 1934 Miss. LEXIS 162 (Miss. 1934).

In action by tenant’s wife to replevy trucks which were attached by landlord as tenant’s, whether wife was entitled to replevy, held for jury. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Claimant of trucks which were attached was required to show that they were bought in good faith for valuable consideration before levy was made. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Stranger claimant is entitled to reasonable damages for wrongful attachment under same circumstances as tenant is entitled under statute. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Tenant’s wife who sought to replevy trucks wrongfully attached by landlord was entitled to reasonable attorney’s fees, if prevailing. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Landlord had no lien upon trucks which he attached and which were sold by tenant to his wife prior to attachment. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Tenant’s wife who showed deed of sale to her reciting valid consideration for tenant’s trucks attached by landlord having made prima facie case, landlord had burden to establish fraud or other defense. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Recital of valid consideration in deed of conveyance between husband and wife being prima facie true, burden of showing falsity of such recital rests upon party attacking deed. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Affidavit of landlord as to lien to secure advances not conclusive; where evidence conflicting, issue should be submitted to jury. Striplin Cotton Co. v. Miller, 130 Miss. 430, 94 So. 227, 1922 Miss. LEXIS 300 (Miss. 1922).

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 125 (attachment affidavit).

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Forms 132, 133 (landlord’s bond in distress proceedings).

Amendment Notes —

The 2015 amendment, substituted “immediately” for “forthwith” and made minor stylistic changes.

Cross References —

Replevin of agricultural products or other distrained property, see §89-7-89.

Trial of replevin suits, see §§89-7-107 et seq.

JUDICIAL DECISIONS

1. In general.

Failure to serve notice if tenant readily found, ground for quashing writ. Wright v. Craig, 92 Miss. 218, 45 So. 835, 1908 Miss. LEXIS 180 (Miss. 1908).

Where party having right to quash comes in later and pleads, writ need not be quashed on remand after appeal. Wright v. Craig, 92 Miss. 218, 45 So. 835, 1908 Miss. LEXIS 180 (Miss. 1908).

The attachment is in the nature of an execution for a money demand, and is not the beginning of a suit. Towns v. Boarman, 23 Miss. 186, 1851 Miss. LEXIS 34 (Miss. 1851).

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 616.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 137 (order authorizing sale of tenant’s perishables distrained to secure payment of rent).

CJS.

52 C.J.S., Landlord and Tenant §§ 1297, 1298.

JUDICIAL DECISIONS

1. In general.

The obligor is estopped by the bond from denying that the rent is owing. Tooley v. Culbertson, 6 Miss. 267, 1840 Miss. LEXIS 82 (Miss. 1840); Robinson v. White, 15 Miss. 39, 1846 Miss. LEXIS 114 (Miss. 1846).

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

JUDICIAL DECISIONS

1. In general.

The proceeding by motion is a summary remedy, and must, therefore, conform to the statute in all material respects. Tifft v. Virden, 15 Miss. 91, 1846 Miss. LEXIS 123 (Miss. 1846).

The statute authorizing the judgment on motion is constitutional. Peck v. Critchlow, 8 Miss. 243, 1843 Miss. LEXIS 84 (Miss. 1843).

A bond made payable to the sheriff, and by him indorsed to the landlord, is valid. Tooley v. Culbertson, 6 Miss. 267, 1840 Miss. LEXIS 82 (Miss. 1840); Peck v. Critchlow, 8 Miss. 243, 1843 Miss. LEXIS 84 (Miss. 1843); Phillips v. Chaney, 8 Miss. 250, 1843 Miss. LEXIS 85 (Miss. 1843); Robinson v. White, 15 Miss. 39, 1846 Miss. LEXIS 114 (Miss. 1846).

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

Rights, obligations and remedies available under Sections89-7-1 through89-7-125 not altered or abridged by rights, obligations and remedies available under Chapter 8 of Title 89, see §89-8-3.

JUDICIAL DECISIONS

1. In general.

The landlord must do what the law exacts as the foundation for his attachment; otherwise, the tenant may successfully replevy, and that, too, though the truth would have justified the landlord in proceeding in the prescribed way. Dudley v. Harvey, 59 Miss. 34, 1881 Miss. LEXIS 69 (Miss. 1881).

A mere belief that the tenant will remove effects other than agricultural products will not justify an attachment before the rent is due; The landlord must have “evidence of reasons and facts” upon which to base his belief. Briscoe v. McElween, 43 Miss. 556, 1870 Miss. LEXIS 66 (Miss. 1870).

It is not every contemplated removal of effects on which there is no lien that will warrant an attachment; It must be a removal of such effects that would defeat a distress for rent. Stamps v. Gilman & Co., 43 Miss. 456, 1870 Miss. LEXIS 55 (Miss. 1870).

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 599.

16 Am. Jur. Pl & Pr Forms, (Rev), Landlord and Tenant, Form 138 (replevy bond by tenant to secure release of distrained personalty).

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

JUDICIAL DECISIONS

1. In general.

The attachment under this statute may be issued by a justice of the peace of a county other than the one where the leased premises are situated. Honea v. Page, 60 Miss. 248, 1882 Miss. LEXIS 41 (Miss. 1882).

A landlord has no lien upon his tenant’s goods other than agricultural products, and before distress for rent a bona fide purchaser of such goods, whether on or off the leased premises, will be protected. Honea v. Page, 60 Miss. 248, 1882 Miss. LEXIS 41 (Miss. 1882).

RESEARCH REFERENCES

ALR.

Valuation of corporate stock for purposes of succession, inheritance, or estate tax, as affected by quantity involved. 23 A.L.R.2d 775.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 615 et seq.

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

JUDICIAL DECISIONS

1. In general.

Claimant of trucks which were attached was required to show that they were bought in good faith for valuable consideration before levy was made. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Landlord had no lien upon trucks which he attached and which were sold by tenant to his wife prior to attachment. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Tenant’s wife who showed deed of sale to her reciting valid consideration for tenant’s trucks attached by landlord, having made prima facie case, landlord had burden to establish fraud or other defense. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Property removed from leased premises remains subject to landlord’s lien for rent for thirty days after removal unless sold to bona fide purchaser before seizure. Durant Motor Co. v. Simpson, 160 Miss. 313, 133 So. 672, 1931 Miss. LEXIS 170 (Miss. 1931).

A landlord has no lien upon his tenant’s goods other than agricultural products, and before distress for rent a bona fide purchaser of such goods, whether on or off the premises, will be protected. Richardson v. McLaurin, 69 Miss. 70, 12 So. 264, 1891 Miss. LEXIS 104 (Miss. 1891).

It is not necessary, to authorize the seizure under this statute, for the affidavit to aver the removal. Henry v. Davis, 60 Miss. 212, 1882 Miss. LEXIS 33 (Miss. 1882).

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

JUDICIAL DECISIONS

1. In general.

The property attached must be the property of the party against whom the writ is directed, or it must be liable for the rent due from him. Patty v. Bogle, 59 Miss. 491, 1882 Miss. LEXIS 141 (Miss. 1882).

RESEARCH REFERENCES

ALR.

Time for exercise of lessee’s option to terminate lease. 37 A.L.R.2d 1173.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 613.

CJS.

52 C.J.S., Landlord and Tenant §§ 1280, 1315.

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 616.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 136 (motion by landlord for order authorizing sale of tenant’s perishables distrained as security for rent).

CJS.

52 C.J.S., Landlord and Tenant § 1298.

Cross References —

Tenant’s remedy for wrongful distress, see §89-7-115.

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 593, 642.

CJS.

52 C.J.S., Landlord and Tenant § 1317-1321.

JUDICIAL DECISIONS

1. In general.

The common-law right of a landlord to distrain is abrogated. Proceedings must be in accordance with the statute. There has been no relaxation of the strictness required in the observance of the law authorizing the procedure. The landlord must see that the affidavit, bond and writ conform to the law. Dudley v. Harvey, 59 Miss. 34, 1881 Miss. LEXIS 69 (Miss. 1881).

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, Section 171, all references in the Mississippi Code to “justice of the peace” shall mean justice court judge.

Cross References —

Provision that the state shall have all the liens, rights, and remedies accorded to landlords in this chapter, see §29-1-107.

JUDICIAL DECISIONS

1. In general.

Evidence sustained finding that new oral contract under which tenant was to pay what he could as reasonable rent for possession of land had replaced written contract, and verdict that landlord’s attachment for rent was wrongfully sued out. Graham v. Swinney, 174 Miss. 579, 165 So. 438, 1936 Miss. LEXIS 208 (Miss. 1936).

Defendant landlord without counter affidavit may disprove account sworn to with plaintiff tenant’s declaration for property attached by landlord. Sprouse v. Davis, 141 Miss. 564, 106 So. 824, 1926 Miss. LEXIS 462 (Miss. 1926).

Proceedings in attachment of agricultural products for rent becomes a suit for first time when tenant replevied property. Thornton v. Gardner, 134 Miss. 485, 99 So. 131, 1924 Miss. LEXIS 285 (Miss. 1924).

The circuit court to which the return should be made is the circuit court of the county of which the justice of the peace who issued the attachment is an officer. Hauser v. Robbins, 61 Miss. 551, 1884 Miss. LEXIS 128 (Miss. 1884).

This is true whether the property be found on the leased premises or not. Kendrick v. Watkins, 54 Miss. 495, 1877 Miss. LEXIS 33 (Miss. 1877).

The ordinary action of replevin does not apply. Maxey v. White, 53 Miss. 80, 1876 Miss. LEXIS 39 (Miss. 1876).

A separate suit cannot be maintained on the bond. It can by put in judgment in the replevin suit only. McKinney v. Green, 52 Miss. 70, 1876 Miss. LEXIS 165 (Miss. 1876).

The replevin is the beginning of the suit. Towns v. Boarman, 23 Miss. 186, 1851 Miss. LEXIS 34 (Miss. 1851).

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 594.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 138 (replevy bond by tenant to secure release of distrained personalty).

CJS.

52 C.J.S., Landlord and Tenant, §§ 1317-1321.

Cross References —

Publication of notice of attachment, see §§11-33-37 et seq.

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 138 (replevy bond by tenant to secure release of distrained personalty).

JUDICIAL DECISIONS

1. In general.

That tenant bringing replevin for farm products seized under distress for rent failed to plead Sunday statute, held not reversible error, where landlord made no objection to evidence lease was executed on Sunday. Stamps v. Frost, 174 Miss. 325, 164 So. 584, 1935 Miss. LEXIS 84 (Miss. 1935).

Error to disallow amendment of affidavit for attachment; writ having been quashed. McSwain v. Cephus, 109 Miss. 368, 69 So. 178, 1915 Miss. LEXIS 166 (Miss. 1915).

By virtue of this section [Code 1942, § 930] the proceedings in a landlord’s attachment for rent or supplies may be amended. Schlicht v. Callicott, 76 Miss. 487, 24 So. 869, 1898 Miss. LEXIS 102 (Miss. 1898).

In replevin by a tenant, where there is a controversy as to the amount of rent due, a general verdict for the landlord, without finding the sum due as required by this section, is insufficient, and the jury having dispersed, the case must be treated as if a mistrial had occurred. Gilleylen v. Stewart, 72 Miss. 262, 16 So. 495, 1894 Miss. LEXIS 99 (Miss. 1894).

JUDICIAL DECISIONS

1. In general.

Evidence sustained finding tenant’s oral contract had replaced written contract, and that landlord’s attachment for rent was wrongfully sued out. Graham v. Swinney, 174 Miss. 579, 165 So. 438, 1936 Miss. LEXIS 208 (Miss. 1936).

That tenants bringing replevin for farm products seized under distress for rent failed to plead Sunday statute held not reversible error, where landlord made no objection to evidence that lease was executed on Sunday. Stamps v. Frost, 174 Miss. 325, 164 So. 584, 1935 Miss. LEXIS 84 (Miss. 1935).

Judgment for lessee against lessor for amount by which total of sums agreed to be deducted from monthly rent and paid lessor’s creditor by lessee exceeded rent for period before partial destruction of leased mill by fire will not be affirmed on remittitur of amount exceeding sums deductible for such period only, but must be reversed and cause remanded for entry of judgment in proper amount. Moore-Curry Lumber Co. v. Wogan, 170 Miss. 512, 155 So. 329, 1934 Miss. LEXIS 162 (Miss. 1934).

Person incurring attorney’s fees in bringing suit for damages for attachment for rent is entitled to recover therefor. Wigginton v. Moore, 147 Miss. 169, 113 So. 326, 1927 Miss. LEXIS 346 (Miss. 1927).

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 617.

JUDICIAL DECISIONS

1. In general.

Evidence sustained finding tenant’s oral contract had replaced written contract, and that landlord’s attachment for rent was wrongfully sued out. Graham v. Swinney, 174 Miss. 579, 165 So. 438, 1936 Miss. LEXIS 208 (Miss. 1936).

It is error to enter judgment by default in replevin without disposing of avowry filed. Barlow v. Serio, 129 Miss. 875, 93 So. 356, 1922 Miss. LEXIS 95 (Miss. 1922).

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant § 617.

JUDICIAL DECISIONS

1. In general.

Where claimant replevies property attached for rent, his replication to landlord’s avowry should not literally follow form given in this section [Code 1942, § 934] and deny indebtedness; but issue of ownership should be presented and evidence thereon admitted. Wright v. Craig, 92 Miss. 218, 45 So. 835, 1908 Miss. LEXIS 180 (Miss. 1908).

JUDICIAL DECISIONS

1. In general.

Tenant replevying goods attached by landlord for supplies furnished, failing to allege that crop for which supplies furnished was not grown on leased land, could not object that landlord’s evidence did not show where crop grown. McRae v. Browning, 119 Miss. 427, 81 So. 123, 1919 Miss. LEXIS 20 (Miss. 1919).

If issue tendered denying allegation of avowry, burden is on landlord or avowant; if relation of landlord and tenant, amount of contract, or amount of supplies furnished is denied, landlord must prove contention, but if admitted no issue is made on avowry; if plaintiff undertake to confess and avoid by affirmative plea setting up new matter, and issue is tendered thereon, burden shifts and plaintiffs assuming it have right to open and close. McNeer & Dodd v. Norfleet, 113 Miss. 611, 74 So. 577, 1917 Miss. LEXIS 138 (Miss. 1917).

JUDICIAL DECISIONS

1. In general.

The landlord, as against a claimant as well as against the tenant, must avow and prove the rent due, etc. Lavigne v. Russ, 36 Miss. 326, 1858 Miss. LEXIS 101 (Miss. 1858); Maxey v. White, 53 Miss. 80, 1876 Miss. LEXIS 39 (Miss. 1876).

The tenant or claimant is the plaintiff, and must prosecute the suit. Parkhurst v. Dunlap, 7 Miss. 577, 1842 Miss. LEXIS 76 (Miss. 1842).

Cross References —

Survival of actions generally, see §§91-7-233 et seq.

JUDICIAL DECISIONS

1. In general.

Tenant’s wife who sought to replevy trucks wrongfully attached by landlord was entitled to reasonable attorney’s fees, if prevailing. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Stranger claimant is entitled to reasonable damages for wrongful attachment under same circumstances as tenant is entitled under statute. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

The tenant is confined to the remedy provided in the section [Code 1942, § 938], except where rent is falsely claimed when nothing was due. Kyzer v. Middleton, 61 Miss. 360, 1883 Miss. LEXIS 137 (Miss. 1883).

Cross References —

Rights, obligations and remedies available under Sections89-7-1 through89-7-125 not altered or abridged by rights, obligations and remedies available under Chapter 8 of Title 89, see §89-8-3.

JUDICIAL DECISIONS

1. In general.

Proper elements of damages for wrongful suing out injunction to prevent tenant from removing building are attorney’s fees, costs, expenses of trial, depreciation, and reasonable rental value. Waldauer v. Parks, 141 Miss. 617, 106 So. 881, 1926 Miss. LEXIS 467 (Miss. 1926).

This section [Code 1942, § 940] applies only where property sold under attachment and seizure and not where replevied by tenant. Thornton v. Gardner, 134 Miss. 485, 99 So. 131, 1924 Miss. LEXIS 285 (Miss. 1924).

Tenant replevying goods attached by landlord for supplies furnished, failing to allege that crops for which supplies furnished not grown on leased land, could not object that landlord’s evidence did not show where crop grown. McRae v. Browning, 119 Miss. 427, 81 So. 123, 1919 Miss. LEXIS 20 (Miss. 1919).

Tenant may recover on the attachment bond for the actual damages sustained. Hawkins v. James, 69 Miss. 361, 11 So. 654, 1891 Miss. LEXIS 99 (Miss. 1891).

A tenant cannot recover double damages for an alleged wrongful distress by the landlord if the attachment proceedings, though based upon an affidavit and bond, appropriate to a distress, proceed thereafter as an ordinary attachment against the debtor, and were so treated by both parties. Hawkins v. James, 69 Miss. 361, 11 So. 654, 1891 Miss. LEXIS 99 (Miss. 1891).

It is only where the landlord falsely pretends that something is due that the tenant can recover the double damages. Kyzer v. Middleton, 61 Miss. 360, 1883 Miss. LEXIS 137 (Miss. 1883).

There is no privity of contract between the lessor and the assignee of the term from the lessee; and the property of such assignee cannot be taken if the attachment be sued out against him by the lessor. Patty v. Bogle, 59 Miss. 491, 1882 Miss. LEXIS 141 (Miss. 1882).

RESEARCH REFERENCES

ALR.

Landlord and tenant: respective rights in excess rent when landlord relets at higher rent during lessee’s term. 50 A.L.R.4th 403.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 593, 642.

32 Am. Jur. Proof of Facts 2d 659, Landlord’s Conversion of Tenant’s Property.

42 Am. Jur. Proof of Facts 2d 317, Constructive Eviction by Conduct of Other Tenant.

46 Am. Jur. Proof of Facts 2d 429, Intentional Infliction of Emotional Distress by Landlord.

50 Am. Jur. Proof of Facts 2d 519, Lessee’s Excusable Failure to give Timely Notice Exercising Option to Renew Lease.

3 Am. Jur. Proof of Facts 3d 581, Sexual Harassment by Landlord.

CJS.

52 C.J.S., Landlord and Tenant §§ 1317-1321.

Cross References —

Trial of right to property levied upon, see §§11-23-7 et seq.

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 607 et seq.

32 Am. Jur. Proof of Facts 2d 659, Landlord’s Conversion of Tenant’s Property.

Cross References —

Trial of right to property levied upon, see §§11-23-7 et seq.

JUDICIAL DECISIONS

1. In general.

Stranger claimant is entitled to reasonable damages for wrongful attachment under same circumstances as tenant, under statute. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Burden of proving ownership on party filing affidavit for property attached by landlord; prima facie case made out by proof of ownership, and burden shifts to landlord to show that it is subject to lien for rent. Dunn v. Hart, 120 Miss. 132, 81 So. 795, 1919 Miss. LEXIS 71 (Miss. 1919).

Third party owning property on leased premises, distrained for rent, may recover by remedy provided in this section [Code 1942, § 942] or by any other remedy known to law, as by replevin. Shuler v. L. Grunewald Co., 113 Miss. 763, 74 So. 659, 1917 Miss. LEXIS 151 (Miss. 1917).

A claimant of goods attached for rent is to be treated in the interposition of his claim as a plaintiff in replevin and must give attention to the prosecution of the suit without notification thereunto. Pierce v. Watkins, 74 Miss. 394, 21 So. 148, 1896 Miss. LEXIS 155 (Miss. 1896).

Where property levied upon under attachment for rent is claimed by a third person who files an affidavit without giving bond, the officer has no authority to sell it pending the suit unless the same consists of “live stock or chattels, which it is expensive to keep, or perishable articles.” Weis v. Basket, 71 Miss. 771, 15 So. 659, 1894 Miss. LEXIS 49 (Miss. 1894).

Cotton ginned and in bales is not of the class that may be sold. Weis v. Basket, 71 Miss. 771, 15 So. 659, 1894 Miss. LEXIS 49 (Miss. 1894).

RESEARCH REFERENCES

Am. Jur.

32 Am. Jur. Proof of Facts 2d 659, Landlord’s Conversion of Tenant’s Property.

JUDICIAL DECISIONS

1. In general.

Stranger claimant is entitled to reasonable damages for wrongful attachment under same circumstances as tenant, under statute. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

JUDICIAL DECISIONS

1. In general.

Burden of proving ownership on party filing affidavit under Code 1906, § 2868 [Code 1942, § 942]; prima facie case made out by proof of ownership, and burden shifts to landlord to prove property subject to lien. Dunn v. Hart, 120 Miss. 132, 81 So. 795, 1919 Miss. LEXIS 71 (Miss. 1919).

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

RESEARCH REFERENCES

Law Reviews.

Bell, The Mississippi Landlord-Tenant Act of 1991. 61 Miss. L. J. 527, Winter, 1991.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Cross References —

Right of landlord and tenant to agree that tenant perform duties of landlord, subject to the provisions of this section, see §89-8-23.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of provisions of lease exempting landlord or tenant from liability on account of fire. 15 A.L.R.3d 786.

Validity of exculpatory clause in lease exempting lessor from liability. 49 A.L.R.3d 321.

Landlord’s liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 11-42.

CJS.

51C C.J.S., Landlord and Tenant §§ 184-251.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Amendment Notes —

The 2018 amendment added “including any late fees…by a defaulting tenant” in (h); and added the exception near the beginning of (i).

Cross References —

Mississippi Nonprofit Corporation Act, see §§79-11-101 et seq.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Cross References —

Definition of “rental agreement” as including all rules and regulations adopted under this section, see §89-8-7.

RESEARCH REFERENCES

ALR.

Validity of exculpatory clause in lease exempting lessor from liability. 49 A.L.R.3d 321.

Express or implied restriction on lessee’s use of residential property for business purposes. 46 A.L.R.4th 496.

Provision in lease as to purpose for which premises are to be used as excluding other uses. 86 A.L.R.4th 259.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 11-42.

CJS.

51C C.J.S., Landlord and Tenant §§ 184-251.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Amendment Notes —

The 2015 amendment added (6).

The 2018 amendment rewrote the introductory paragraph of (3), which read: “The nonbreaching party may deliver a written notice to the party in breach specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty (30) days after receipt of the notice if the breach is not remedied within a reasonable time not in excess of thirty (30) days; and the rental agreement shall terminate and the tenant shall surrender possession as provided in the notice subject to the following:”; in (3)(b), deleted “written” preceding “notice” and inserted “in writing, or by email...or text message” thereafter; in (5), deleted “Notwithstanding the provisions of this section or any other provisions of this chapter to the contrary,” from the beginning, designated the remainder of former (5) as (a) and substituted “deliver fourteen (14) days' notice” for “deliver thirty (30) days' written notice” therein, and added (b); and made a minor stylistic change.

Cross References —

Rights of landlord after expiration of rental agreement notwithstanding the provisions of this section, see §89-8-17.

OPINIONS OF THE ATTORNEY GENERAL

Party who has been given 30 day notice of first breach has 30 days within which to remedy breach and to thereby prevent rental agreement from terminating; statute provides no such right to remedy or cure second, similar breach after 14 day notice has been given. Alexander, Nov. 12, 1992, A.G. Op. #92-0857.

RESEARCH REFERENCES

ALR.

Failure of landlord to make, or permit tenant to make, repairs or alterations required by public authority as constructive eviction. 86 A.L.R.3d 352.

Waiver of statutory demand-for-rent due or notice-to-quit prerequisite of summary eviction of lessee for nonpayment of rent-modern cases. 31 A.L.R.4th 1254.

Express or implied restriction on lessee’s use of residential property for business purposes. 46 A.L.R.4th 496.

Provision in lease as to purpose for which premises are to be used as excluding other uses. 86 A.L.R.4th 259.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 246, 825-861.

16 Am. Jur. Pl and Pr Forms (Rev), Landlord and Tenant, Forms 171-182.

CJS.

51C C.J.S., Landlord and Tenant §§ 102-119.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of provisions of lease exempting landlord or tenant from liability on account of fire. 15 A.L.R.3d 786.

Who, as between landlord and tenant, must make, or bear expense of, alterations, improvements, or repairs ordered by public authorities. 22 A.L.R.3d 521.

Tenant’s right, where landlord fails to make repairs, to have them made and set off cost against rent. 40 A.L.R.3d 1369.

Failure of landlord to make, or permit tenant to make, repairs or alterations required by public authority as constructive eviction. 86 A.L.R.3d 352.

Landlord’s liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 631, 710-717, 794.

CJS.

51C C.J.S., Landlord and Tenant §§ 372, 373, 387-401.

Law Reviews.

Note: Developing a housing plan for Mississippi: some program and funding alternatives. 61 Miss. L. J. 605, Winter, 1991.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

RESEARCH REFERENCES

ALR.

Right of landlord legally entitled to possession to dispossess tenant without legal process. 6 A.L.R.3d 177.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 825-861.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Forms 41-52.

CJS.

51C C.J.S., Landlord and Tenant §§ 89-101.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Cross References —

Amount of notice required to terminate tenancy not governed by this section, see §89-7-23.

RESEARCH REFERENCES

ALR.

Right of landlord legally entitled to possession to dispossess tenant without legal process. 6 A.L.R.3d 177.

Retaliatory eviction of tenant for reporting landlord’s violation of law. 40 A.L.R.3d 753.

Lease provisions allowing termination or forfeiture for violation of law. 92 A.L.R.3d 967.

Circumstances excusing lessee’s failure to give timely notice of exercise of option to renew or extend lease. 27 A.L.R.4th 266.

Sufficiency as to method of giving oral or written notice exercising option to renew or extend lease. 29 A.L.R.4th 903.

What constitutes timely notice of exercise of option to renew or extend lease. 29 A.L.R.4th 956.

Waiver of statutory demand-for-rent due or of notice-to-quit prerequisite of summary eviction of lessee for nonpayment of rent-modern cases. 31 A.L.R.4th 1254.

Sufficiency as to parties giving or receiving notice of exercise of option to renew or extend lease. 34 A.L.R.4th 857.

Specificity of description of premises as affecting enforceability of lease. 73 A.L.R.4th 236.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 60-70.

CJS.

51C C.J.S., Landlord and Tenant §§ 89, 130, 142, 144, 150, 173, 183.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Cross References —

Duty of landlord to return all prepaid and unearned rent and security recoverable by tenant under this section if rental agreement is terminated, see §89-8-13.

RESEARCH REFERENCES

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 522-528.

CJS.

51D C.J.S., Landlord and Tenant §§ 472-476.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Cross References —

Right of tenant to terminate tenancy for landlord’s noncompliance with obligations imposed by this section, see §89-8-13.

Right of tenant to make repairs of defects constituting breach of landlord’s obligations under this section, see §89-8-15.

JUDICIAL DECISIONS

1. In general.

This section is not a basis for holding a landlord negligent per se for all housing code violations, and such an interpretation would lead to inequitable and extreme results. Sweatt v. Murphy, 733 So. 2d 207, 1999 Miss. LEXIS 43 (Miss. 1999).

Because the Residential Landlord and Tenant Act informed the Mississippi Supreme Court’s decision to hold that a warranty of habitability applied to residential leases, after concluding that such warranty would apply to mobile home lots, a court denied property management companies’ motion for summary judgment in a tenant’s suit to recover damages for personal injuries that he sustained when he tripped over a broken sidewalk in front of his rented lot; although the tenant had signed a lease stating that he was responsible for making all repairs, whether the tenant waived the warranty of habitability was a question for the jury. Moorman v. Tower Mgmt. Co., 451 F. Supp. 2d 846, 2006 U.S. Dist. LEXIS 67246 (S.D. Miss. 2006).

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of provisions of lease exempting landlord or tenant from liability on account of fire. 15 A.L.R.3d 786.

Who, as between landlord and tenant, must make, or bear expense of, alterations, improvements, or repairs ordered by public authorities. 22 A.L.R.3d 521.

Validity of exculpatory clause in lease exempting lessor from liability. 49 A.L.R.3d 321.

Landlord’s liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 618-770.

CJS.

51C C.J.S., Landlord and Tenant §§ 366-373, 402-407.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

Cross References —

Right of landlord to terminate tenancy for tenant’s noncompliance with obligations imposed by this section, see §89-8-13.

Right of tenant to receive reimbursement for expense of repairs if tenant has fulfilled his affirmative obligations under this section, see §89-8-15.

No duty on part of landlord arises in connection with defect caused by tenant’s failure to comply with his obligations under this section, see §89-8-23.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of provisions of lease exempting landlord or tenant from liability on account of fire. 15 A.L.R.3d 786.

Who, as between landlord and tenant, must make, or bear expense of, alterations, improvements, or repairs ordered by public authorities. 22 A.L.R.3d 521.

Tenant’s obligation under lease as basis of tort liability to third persons. 44 A.L.R.3d 943.

Validity of exculpatory clause in lease exempting lessor from liability. 49 A.L.R.3d 321.

Express or implied restriction on lessee’s use of residential property for business purposes. 46 A.L.R.4th 496.

Landlord’s liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

Am. Jur.

49 Am. Jur. 2d, Landlord and Tenant §§ 771-824.

CJS.

51C C.J.S., Landlord and Tenant §§ 102-119, 387-401.

Editor’s Notes —

Laws of 1991, ch. 478, § 16, provides:

“SECTION 16. This act shall take effect and be in force from and after July 1, 1991, and shall apply only to rental agreements entered into after such date.”

RESEARCH REFERENCES

Law Reviews.

Note: Developing a housing plan for Mississippi: some program and funding alternatives. 61 Miss. L. J. 605, Winter, 1991.

Beard and Hopkins, Building homes, building neighborhoods: family selection and family nurture for low income housing in two southern communities. 61 Miss. L. J. 631, Winter, 1991.

Cross References —

Inclusion of condominium units within exemptions from taxation of homesteads, see §27-33-19.

RESEARCH REFERENCES

ALR.

Liability of condominium association or corporation for injury allegedly caused by condition of premises. 45 A.L.R.3d 1171.

Erection of condominium as violation of restrictive covenant forbidding erection of apartment houses. 65 A.L.R.3d 1212.

Proper party plaintiff in action for injury to common areas of condominium development. 69 A.L.R.3d 1148.

Validity and construction of condominium association’s regulations governing members’ use of common facilities. 72 A.L.R.3d 308.

Standing to bring action relating to title in real property of condominium. 72 A.L.R.3d 314.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association. 73 A.L.R.3d 613.

Enforceability of bylaw or other rule of condominium or co-operative association restricting occupancy by children. 100 A.L.R.3d 241.

Regulation of time-share or interval ownership interests in real estate. 6 A.L.R.4th 1288.

Condominium association’s liability to unit owner for injuries caused by third person’s criminal conduct. 59 A.L.R.4th 489.

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 1-3.

7 Am. Jur. Pl & Pr Forms (Rev), Condominiums and Cooperative Apartments, Forms 1 et seq.

JUDICIAL DECISIONS

1. Parking space.

2. Re-subdividing.

1. Parking space.

Pursuant to Miss. Code Ann. §89-9-5(2) and (4), a unit contained only non-common elements, and since the Declaration of Condominium was never validly amended, the disputed parking space remained a common element of the condominium, and all owners in the condominium complex owned the parking space as owners of a common element of a condominium; however, the owner still had the exclusive right to use the parking space, free from interference by the neighbors, as stated in the Declaration of Condominium. Brice v. Ferrell, 918 So. 2d 887, 2006 Miss. App. LEXIS 26 (Miss. Ct. App. 2006).

2. Re-subdividing.

Construing the term “re-subdivided” most strongly against the homeowners and in favor of the developer, the prohibition that the lots were not to be re-subdivided meant that the platted lots were not to be divided into smaller tracts of land and then re-platted as a subdivision, and it would be unreasonable to find that the covenant drafters intended that a lot owner, who alienated a portion of a lot without assigning it a separate lot number, was engaged in prohibited re-subdividing, especially so in light of the covenant’s allowance of multi-family residential structures on the lots, which contemplated more than one property owner per lot; the evidence before the chancellor pertaining to the definition of multi-family residential use was that it included condominiums. COR Devs., LLC v. College Hill Heights Homeowners, LLC, 973 So. 2d 273, 2008 Miss. App. LEXIS 31 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 1-3.

Cross References —

Partition of property, see §§11-21-1 et seq.

Party walls, see §§89-15-1 et seq.

RESEARCH REFERENCES

ALR.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 1-3.

7 Am. Jur. Legal Forms 2d, Deeds § 87.23.1 (deed with covenants of title time-share condominium).

Cross References —

Recording of instruments generally, see §89-5-1 et seq.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 6-9.

RESEARCH REFERENCES

ALR.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association. 73 A.L.R.3d 613.

Am. Jur.

7 Am. Jur. Legal Forms 2d, Deeds § 87.23.1 (deed with covenants of title time-share condominium).

RESEARCH REFERENCES

ALR.

Validity and enforceability of condominium owner’s covenant to pay dues or fees to sports or recreational facility. 39 A.L.R.4th 129.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

Am. Jur.

29 Am. Jur. Trials 157, Condominium Construction Litigation: Representing the Community Association.

Cross References —

Partition of property generally, see §11-21-1 et seq.

RESEARCH REFERENCES

Am. Jur.

29 Am. Jur. Trials 157, Condominium Construction Litigation: Representing the Community Association.

Editor’s Notes —

Chapter 408 of Laws of 1984 (§71-3-1) changed the title of the Workmen’s Compensation Law to “Workers’ Compensation Law” and provided that the words “workmen’s compensation” shall mean “workers’ compensation” and “commission” shall mean “workers’ compensation commission”.

Cross References —

Recording of instruments generally, see §89-5-1 et seq.

RESEARCH REFERENCES

ALR.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association. 73 A.L.R.3d 613.

Construction of contractual or state regulatory provisions respecting formation, composition, and powers of governing body of condominium association. 13 A.L.R.4th 598.

Validity, construction, and application of statutes, or of condominium association’s bylaws or regulations, restricting sale, transfer, or lease of condominium units. 17 A.L.R.4th 1247.

Validity and construction of law regulating conversion of rental housing to condominiums. 21 A.L.R.4th 1083.

Right of condominium association’s management or governing body to inspect individual units. 41 A.L.R.4th 730.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

Validity and construction of condominium bylaws or regulations placing special regulations, burdens, or restrictions on nonresident unit owners. 76 A.L.R.4th 295.

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 10-12, 24, 25, 27, 35-38, 46, 53.

7 Am. Jur. Pl & Pr Forms (Rev), Condominiums and Cooperative Apartments, Forms 1 et seq. (rights and obligations of owners among themselves).

5A Am. Jur. Legal Forms 2d, Condominiums §§ 64:33 et seq. (management and operation).

5A Am. Jur. Legal Forms 2d, Condominiums § 64:82 (declaration of covenants, conditions, and restrictions and power of attorney by owner and developer).

7 Am. Jur. Legal Forms 2d, Covenants and Restrictions § 77:88 (restrictions on use of condominium unit).

31 Am. Jur. Trials 193, Litigation Between Association Members for Breach of Condominium Provisions: Noise.

5 Am. Jur. Proof of Facts 3d, Condominium Association’s Failure to Protect Residents and Guests from Criminal Attack, §§ 1 et seq.

RESEARCH REFERENCES

ALR.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association. 73 A.L.R.3d 613.

Validity, construction, and application of statutes, or of condominium association’s bylaws or regulations, restricting sale, transfer, or lease of condominium units. 17 A.L.R.4th 1247.

Validity, construction, and application of statutes, or of condominium association’s bylaws or regulations, restricting number of units that may be owned by single individual or entity. 39 A.L.R.4th 88.

Validity and construction of condominium bylaws or regulations placing special regulations, burdens, or restrictions on nonresident unit owners. 76 A.L.R.4th 295.

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments § 42.

7 Am. Jur. Pl & Pr Forms (Rev), Condominiums and Cooperative Apartments, Form 5 (complaint, petition, or declaration against co-owner alleging failure of selling unit to give right of “first refusal” as required by covenants, conditions, and restrictions).

Cross References —

Liens generally, see §85-7-1 et seq.

JUDICIAL DECISIONS

1. Applicability.

By a request to amend its complaint against a debtor to seek foreclosure, a lienholder properly initiated foreclosure, even though the request was not granted until months later because, pursuant to Miss. R. Civ. P. 15, the granting of a motion to amend related back to the original pleadings; thus, the lienholder initiated foreclosure proceedings prior to the expiration of the one-year extension of a condominium lien pursuant to Miss. Code Ann. §89-9-21. Tally Arms Condo. Ass'n v. Breland, 854 So. 2d 28, 2003 Miss. App. LEXIS 789 (Miss. Ct. App. 2003).

Court disagreed that the lienholder was entitled to more than its original lien amount because there was no authority that allowed a condominium assessment to include language that could encompass all later unfiled assessments. Tally Arms Condo. Ass'n v. Breland, 854 So. 2d 28, 2003 Miss. App. LEXIS 789 (Miss. Ct. App. 2003).

RESEARCH REFERENCES

ALR.

Expenses for which condominium association may assess unit owners. 77 A.L.R.3d 1290.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 28, 47, 56, 60.

7 Am. Jur. Pl & Pr Forms (Rev), Condominiums and Cooperative Apartments, Forms 21 et seq. (assessments).

5 Am. Jur. Proof of Facts 3d, Condominium Association’s Failure to Protect Residents and Guests from Criminal Attack, §§ 1 et seq.

Cross References —

Liens generally, see §85-7-1 et seq.

RESEARCH REFERENCES

ALR.

Expenses for which condominium association may assess unit owners. 77 A.L.R.3d 1290.

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 28, 47, 56, 60.

7 Am. Jur. Pl & Pr Forms (Rev), Condominiums and Cooperative Apartments, Forms 21 et seq. (assessments).

RESEARCH REFERENCES

ALR.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association. 73 A.L.R.3d 613.

Construction of contractual or state regulatory provisions respecting formation, composition, and powers of governing body of condominium association. 13 A.L.R.4th 598.

RESEARCH REFERENCES

ALR.

Expenses for which condominium association may assess unit owners. 77 A.L.R.3d 1290.

Personal liability of owner of condominium unit to one sustaining personal injuries or property damage by condition of common areas. 39 A.L.R.4th 98.

Liability of owner of unit in condominium, recreational development, time-share property, or the like, for assessment in support of common facilities levied against and unpaid by prior owner. 39 A.L.R.4th 114.

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 44, 57-60.

7 Am. Jur. Pl & Pr Forms (Rev), Condominiums and Cooperative Apartments, Forms 51 et seq. (rights and obligations between owners and third persons).

5 Am. Jur. Proof of Facts 3d, Condominium Association’s Failure to Protect Residents and Guests from Criminal Attack, §§ 1 et seq.

Cross References —

Exemption of homesteads from certain taxes, see §27-33-19.

Tax liens generally, see §§27-43-1 et seq.

RESEARCH REFERENCES

ALR.

Real-estate taxation of condominiums. 71 A.L.R.3d 952.

Am. Jur.

15A Am. Jur. 2d, Condominiums and Cooperative Apartments §§ 48-50.

RESEARCH REFERENCES

ALR.

Zoning or building regulations as applied to condominiums. 71 A.L.R.3d 866.

Cross References —

Partition of property, generally, see §§11-21-1 et seq.

RESEARCH REFERENCES

ALR.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

Am. Jur.

7 Am. Jur. Pl & Pr Forms (Rev), Condominiums and Cooperative Apartments, Forms 41 et seq. (partition).

RESEARCH REFERENCES

ALR.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

Am. Jur.

7 Am. Jur. Pl & Pr Forms (Rev), Condominiums and Cooperative Apartments, Forms 41 et seq. (partition).

Cross References —

Escheat of funds held by receiver of unknown or nonresident owner of mineral interest, see §11-17-34.

Escheat of public lands purchased in violation of statute, see §29-1-73.

Procedures for sale of severed minerals which escheat to the state, see §89-11-31.

JUDICIAL DECISIONS

1. In general.

The state, both in view of its rights under escheat to the property of intestates who die without heirs and parens patriae for the protection of the interests of any possible unknown heir who might appear, may bring suit to contest a probated will. Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806, 1938 Miss. LEXIS 281 (Miss. 1938).

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property §§ 2 et seq.

27A Am. Jur. 2d, Escheat §§ 1 et seq.

Editor’s Notes —

Pursuant to Section 7-11-4, effective January 1, 1980, the words “state land commissioner,” “land commissioner,” “state land office” and “land office” shall mean the secretary of state.

Cross References —

Granting of letters testamentary or of administration to county administrator, see §§91-7-79 et seq.

JUDICIAL DECISIONS

1. In general.

The sheriff, as public escheator, may bring suit to contest a probated will. Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806, 1938 Miss. LEXIS 281 (Miss. 1938).

Land commissioner could not maintain escheat proceeding to recover gasoline tax subject to be refunded to dealer, where gasoline purchasers were unknown. Moore v. Eastman Gardiner Lumber Co., 156 Miss. 359, 126 So. 44, 1930 Miss. LEXIS 183 (Miss. 1930).

JUDICIAL DECISIONS

1. In general.

State must enforce escheat on strength of own title and not on weakness of defendant’s. State ex rel. Nall v. Williams, 99 Miss. 293, 54 So. 951, 1911 Miss. LEXIS 211 (Miss. 1911).

Intestate is presumed to have left heirs capable of inheriting. State ex rel. Nall v. Williams, 99 Miss. 293, 54 So. 951, 1911 Miss. LEXIS 211 (Miss. 1911).

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property §§ 46 et seq.

27A Am. Jur. 2d, Escheat §§ 20 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Escheat, Forms 1 et seq. (proceedings to enforce escheat).

CJS.

30A C.J.S., Escheat §§ 14 et seq.

RESEARCH REFERENCES

ALR.

Insured’s right of action for arbitrary nonrenewal of policy, where insurer has option not to renew. 37 A.L.R.4th 862.

RESEARCH REFERENCES

ALR.

What constitutes tenant’s holding over of leased premises. 13 A.L.R.5th 169.

Editor’s Notes —

Pursuant to Section 7-11-4, effective January 1, 1980, the words “state land commissioner,” “land commissioner,” “state land office” and “land office” shall mean the secretary of state.

Cross References —

Duties and powers of land commissioner generally, see §7-11-11.

Sale of escheated lands, see §29-1-65.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Escheat §§ 40 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Escheat, Form 17 (judgment or decree declaring property escheated and directing sale of property).

CJS.

30A C.J.S., Escheat § 27.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Escheat §§ 40 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Escheat, Form 17 (judgment or decree declaring property escheated and directing sale of property).

CJS.

30A C.J.S., Escheat § 27.

Editor’s Notes —

Pursuant to Section 7-11-4, effective January 1, 1980, the words “state land commissioner,” “land commissioner,” “state land office” and “land office” shall mean the secretary of state.

Cross References —

Sale of escheated land, see §29-1-65.

Editor’s Notes —

Pursuant to Section 7-11-4, effective January 1, 1980, the words “state land commissioner,” “land commissioner,” “state land office” and “land office” shall mean the secretary of state.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Escheat §§ 44 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Escheat, Forms 31 et seq. (recovery, restoration or reimbursement).

CJS.

30A C.J.S., Escheat §§ 7, 8.

Editor’s Notes —

Pursuant to Section 7-11-4, effective January 1, 1980, the words “state land commissioner,” “land commissioner,” “state land office” and “land office” shall mean the secretary of state.

Section7-7-2, as added by Laws of 1984, ch. 488, § 90, and amended by Laws of 1985, ch. 455, § 14, Laws of 1986, ch. 499, § 1, provided, at subsection (2) therein, that the words “state auditor of public accounts,” “state auditor”, and “auditor” appearing in the laws of the state in connection with the performance of auditor’s functions transferred to the state fiscal management board, shall be the state fiscal management board, and, more particularly, such words or terms shall mean the state fiscal management board whenever they appear. Thereafter, Laws of 1989, ch. 532, § 2, amended §7-7-2 to provide that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer, and, more particularly, such words or terms shall mean the State Fiscal Officer whenever they appear. Subsequently, Laws of 1989, ch. 544, § 17, effective July 1, 1989, and codified as §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration”.

Editor’s Notes —

Pursuant to Section 7-11-4, effective January 1, 1980, the words “state land commissioner,” “land commissioner,” “state land office” and “land office” shall mean the secretary of state.

Cross References —

Duties and powers of land commissioner generally, see §7-11-11.

Power of land commissioner to institute suits, see §29-1-7.

JUDICIAL DECISIONS

1. In general.

Land commissioner could not maintain escheat proceeding to recover gasoline tax subject to be refunded to dealer, where gasoline purchasers were unknown. Moore v. Eastman Gardiner Lumber Co., 156 Miss. 359, 126 So. 44, 1930 Miss. LEXIS 183 (Miss. 1930).

Cross References —

Circumstances under which property shall escheat to the state, see §89-11-1.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Cross References —

Authority of municipalities with respect to lost, stolen, abandoned or misplaced personal property, see §21-39-21.

Liquidated state trust company unclaimed property, see §81-27-8.005 et seq.

Comparable Laws from other States —

Alabama: Code of Ala. §§35-12-70 et seq.

Arkansas; A.C.A. §18-28-201 et seq.

Illinois: 765 ILCS 1025/1 et seq.

Minnesota: Minn. Stat. §§ 345.31 et seq

Missouri: Mo. Rev. Stat. §§ 447.500 et seq.

Nebraska: R.R.S. Neb. §§ 69-1301 et seq.

Oklahoma: §§ 60 Okl. St. § 651 et seq.

Oregon: ORS §§ 98.302 et seq.

Tennessee: Tenn. Code Ann. §§66-29-101 et seq.

Virginia: §§ 55-210.1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Uniform Disposition of Unclaimed Property Act (Miss. Code Sections 89-12-1 et seq.) provides procedure for return of forfeited property where promptness requirement of Miss. Code Section 41-29-177 was not complied with, and for disposing of property where owners cannot be located. Magee, Jan. 8, 1993, A.G. Op. #92-0909.

RESEARCH REFERENCES

ALR.

Uniform Disposition of Unclaimed Property Act. 98 A.L.R.2d 304.

Am. Jur.

1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property §§ 2 et seq.

Jurisdictions adopting Uniform Disposition of Unclaimed Property Act, see Am. Jur. 2d Desk Book, Item No. 124.

25 Am. Jur. Proof of Facts 2d 685, Abandonment of Tangible Personal Property.

Amendment Notes —

The 2006 amendment added “however this term does not include self-insured workers’ compensation groups or associations comprised of members who have joint and several liability for the workers’ compensation obligation of the other members” to the end of (e); and added “except future and prior dividends made by the workers’ compensation groups or associations described in paragraph (e)” to the end of (f)(ii).

Cross References —

State treasurer, generally, see §§7-9-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Money qualifies as “intangible personal property” under Miss. Code Section 89-12-3(f)(i). Magee, Jan. 8, 1993, A.G. Op. #92-0909.

Cross References —

Sums payable on money orders or traveler’s checks presumed abandoned under this section as exempt from notice requirement, see §89-12-27.

Payment or delivery of abandoned property to treasurer, see §89-12-29.

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property § 15.

1 Am. Jur. Pl & Pr Forms (Rev), Abandoned, Lost and Unclaimed Property, Form 1.1 (complaint, petition, or declaration-allegation-property as subject to abandonment); Form 1.2 (allegation-relinquishment of possession to property); Form 1.3 (allegation-intent to abandon property); Form 1.4 (allegation-intent to abandon property-as voluntary and unconditional).

Young, Trial Handbook for Mississippi Lawyers § 19:19.

CJS.

30A C.J.S., Escheat §§ 1, 3, 15.

Cross References —

Regulation of the insurance industry, generally, see §§83-1-1 et seq.

Recovery by another state of property paid or delivered to treasurer under this chapter, see §89-12-21.

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property § 17.

1 Am. Jur. Pl & Pr Forms (Rev), Abandoned, Lost and Unclaimed Property, Form 1.1 (complaint, petition, or declaration-allegation-property as subject to abandonment); Form 1.2 (allegation-relinquishment of possession to property); Form 1.3 (allegation-intent to abandon property); Form 1.4 (allegation-intent to abandon property-as voluntary and unconditional).

Young, Trial Handbook for Mississippi Lawyers § 19:19.

CJS.

30A C.J.S., Escheat §§ 1, 3, 15.

Cross References —

Regulation of public utilities, generally, see §§77-1-1 et seq.

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property § 18.

1 Am. Jur. Pl & Pr Forms (Rev), Abandoned, Lost and Unclaimed Property, Form 1.1 (complaint, petition, or declaration-allegation-property as subject to abandonment); Form 1.2 (allegation-relinquishment of possession to property); Form 1.3 (allegation-intent to abandon property); Form 1.4 (allegation-intent to abandon property-as voluntary and unconditional).

CJS.

30A C.J.S., Escheat §§ 1, 3, 15.

Amendment Notes —

The 1997 amendment revised subsection (6), so as to exempt certain payments by nonprofit agricultural cooperative marketing associations.

Cross References —

Regulation of corporations, associations and partnerships, generally, see §§79-1-1 et seq.

Sale of securities listed on stock exchange, see §89-12-30.

Relief from liability upon payment or delivery of abandoned property to treasurer, see §89-12-31.

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property § 16.

1 Am. Jur. Pl & Pr Forms (Rev), Abandoned, Lost and Unclaimed Property, Form 1.1 (complaint, petition, or declaration-allegation-property as subject to abandonment); Form 1.2 (allegation-relinquishment of possession to property); Form 1.3 (allegation-intent to abandon property); Form 1.4 (allegation-intent to abandon property-as voluntary and unconditional).

Young, Trial Handbook for Mississippi Lawyers § 19:19.

CJS.

30A C.J.S., Escheat §§ 1, 3, 15.