The Bad Earth
September 29, 2014 § 3 Comments
Slander of title is one of those rare actions that one sees a couple of times in a career. The recent MSSC case, Mize v. Westbrook Construction, et al., handed down September 4, 2014, illustrates, perhaps, why that is.
Jerry Mize purchased 56 acres of land. The seller told him that, although most of the tract sat north of County Road (CR) 206, a small part of it lay south of the road. Westbrook and the other defendants (Westbrook), however, took the position that their deeds gave them title to all the property south of the road.
Mize then employed an engineering firm to survey the property and prepare a corrected deed in an effort to resolve the difference. The corrected deed was also necessary because the original deed had a description that did not close. The survey confirmed Mize’s position, but Westbrook refused to recognize it, relying instead on their own deeds that had been prepared by another surveying firm in 2004, which set the boundary in the center line of CR 206, not south of it.
Mize went ahead and recorded the corrected deed and filed suit to quiet and confirm title. Westbrook answered and counterclaimed to quiet and confirm their own title, and for slander of their titles.
After a trial, the chancellor accepted Westbrook’s survey and found that, even if Mize’s property did extend south of CR 206, Westbrook had obtained title by adverse possession. The trial court also found for Westbrook on the slander-of-title claim, and awarded damages of $32,530.05. Mize appealed. The COA affirmed, and the MSSC granted cert.
Justice Randolph, for a unanimous court, laid out the framework for a slander-of-title suit:
¶7. To succeed in an action for slander of title, a claimant must show that another has falsely and maliciously published statements that disparage or bring into question the claimant’s right of title to the property, thereby causing special damage to the claimant. Walley v. Hunt, 212 Miss. 294, 304, 54 So. 2d 393, 396 (1951). The slander may consist of a writing, a printing, or words of mouth, but they will provide grounds for a cause of action only if the statements have been made falsely and maliciously. Id. Whatever the statement, however, in order for it to form the basis of a right of action, it must have been made not only falsely but maliciously. Id. (citations omitted).
¶8. Malice, however, may be inferred from one’s actions. Phelps v. Clinkscales, 247 So.2d 819, 821 (Miss. 1971). “The law determines malice by external standards; a process of drawing inferences by applying common knowledge and human experience to a person’s statements, acts, and the surrounding circumstances.” Id. As such, the chancellor’s finding of malice should be given great deference and can be reversed only if it is clearly erroneous. Mason v. Southern Mortgage Co., 828 So. 2d 735, 739 (Miss. 2002). Here, the chancellor found malice in Mize’s actions; however the record is silent as to whether Mize knowingly made a false publication.
The court then turned its attention to the filing of the corrected deed. Was that sufficient to support a finding of malice?
¶9. This Court has held that the mere filing of a corrected deed is not sufficient to show malicious intent. Wise v. Scott, 495 So. 2d 16, 21 (Miss. 1986). Wise involved a dispute of mineral rights between parties following a conveyance of a mineral deed. Id. at 20. After realizing that there had been a drafting error in the original deed that had a material effect on the parties’ property rights, the defendant sought to correct the error through a corrected deed. Id. at 21. The plaintiffs successfully sued the defendant for slander of title in chancery court. Id. On appeal, this Court reversed the chancery court, finding that malice cannot be shown by the mere filing of a corrected deed, if the party who filed the corrected deed had a bona fide belief of ownership. Id.
Since Mize had a bona fide belief based on his sellers’ representations, and he had reason to file a corrected deed to remedy its failure to close, it was error for the trial court to find malice in the filing of the corrected instrument in the absence of proof of “falsity, guile, or trickery.”
And what about the filing and pursuit of the suit by Mize? Did those actions constitute malice? The court answered, “No” because communications published in the course of a lawsuit are absolutely privileged. And, as for continuation of the litigation after the seller had given an affidavit that she never intended to sell any property owned by Westbrook, the MSSC said that a party who acts under a reasonable belief of title can not be held to have acted maliciously. Since Mize had his survey and corrected deed, his acts were based on a reasonable belief.
The court reversed the chancellor’s finding of slander of title and the award of damages.