Procedural Obstacles in a Suit to Quiet and Confirm and to Remove Clouds from Title

August 23, 2017 § Leave a comment

Merle George Smith, Jr. borrowed some money in 1999 and gave it to his dad, Merle George Smith, Sr., to purchase a lot and mobile home. The deed conveyed the property to “Merle George Smith.”

Soon after, Merle, Sr. allowed Carla Ann Pettigrew to move in with him, and she was his live-in companion until he died in 2012. In 2011, Merle, Sr. conveyed the property to Carla, reserving a life estate.

In 2014, Merle, Jr. filed suit to cancel the 2011 deed, and to confirm title in himself. Carla appeared pro se.

Following a hearing, the chancellor ruled that Merle, Jr. would be denied any relief because he did not occupy the property and it was not unoccupied, and because he had failed to deraign title showing that he had perfect title. The judge also found that Merle, Sr. — not Jr. — was the person to whom the grantors had conveyed the property in 1999. Merle, Jr. appealed.

In the case of Smith v. Pettigrew, decided July 18, 2017, the COA affirmed. Judge Ishee’s opinion on the issue of possession:

¶14. On appeal, Merle Jr. argues that the chancellor erred in finding that Merle Jr. was precluded from suing Carla—to confirm title—because she, and not he, possessed the property. Specifically, Merle Jr. asserts that in making her determination, the chancellor relied on the wrong statute.

¶15. Under Mississippi Code Annotated section 11-17-29 (Rev. 2004), to have title confirmed, the claimant must either possess the property or the property must be unoccupied. See also Dixon v. Parker, 831 So. 2d 1202, 1204 (¶8) (Miss. Ct. App. 2002).

¶16. Merle Jr. argues that the chancellor should have relied on Mississippi Code Annotated section 11-17-31 (Rev. 2004), which he argues stands for the proposition that one does not have to possess the property to bring an action to confirm title. Merle Jr.’s reliance on this statute, however, is misplaced. Section 11-17-31 provides that the real owner of property may bring an action in chancery court to have a “conveyance or other evidence or claim of title cancelled, and such cloud, doubt or suspicion removed from said title, whether such real owner be in possession or not . . . .” Id. (emphasis added). Merle Jr. conflates these separate and distinct causes of action. To be sure, section 11-17-31 applies to suits to cancel title, but section 11-17-31 does not apply to suits to confirm title. And while it is true that Merle Jr. would not have to be in possession to bring a suit to have title canceled, he would have to possess the property, or the property must have been unoccupied, to bring a suit to confirm title.

¶17. In her opinion, the chancellor found that Merle Jr. was precluded from bringing a suit to confirm title because he did not possess the property and the property was not unoccupied. We agree. The record shows that Merle Jr. testified that he had never possessed the property. Instead, Carla had lived on the property since Merle Sr. conveyed the property to her through a warranty deed. As a result, we do not find that the chancellor erred in finding that—because Merle Jr. did not possess the property, and because the property was occupied by Carla—Merle Jr. was precluded from bring a suit to confirm title. This issue is without merit.

On the issue of deraignment:

¶18. Next, Merle Jr. argues that the chancellor erred by finding that Merle Jr. failed to meet his burden of proof to deraign title—showing perfect title in himself—in his suit to remove clouds.

¶19. “In all suits to confirm title or to remove clouds it is the duty of the complainant to deraign title.” Russell v. Town of Hickory, 116 Miss. 46, 52, 76 So. 825, 825 (1917). The claimant may bring such a suit against someone in possession. Dixon, 831 So. 2d at 1204 (¶8) (citing Broome v. Jackson, 193 Miss. 66, 72, 7 So. 2d 829, 831 (1942)). “The complainant . . . has the burden of showing perfect title in himself.” Culbertson v. Dixie Oil Co., 467 So. 2d 952, 954 (Miss. 1985). But where the title of the parties came from a common source, complete deraignment is not required. Warren v. Clark, 230 Miss. 873, 94 So. 2d 323, 328 (1957).

¶20. On appeal, Merle Jr. argues that he was not required to deraign title because Carla and he claim title from a common source—the Youngs. We disagree. Addressing common source, the our supreme court has held that “[w]hen . . . the defendant justifies his possession by showing that he holds [title] under another deed than that shown by the plaintiff, the effect of the proof of title from a common source is destroyed, and the plaintiff is put to the proof of his title without regard to the common source of title.” Hughes v. Wilkinson, 28 Miss. 600, 606 (1855). Here, Merle Jr. claimed title under a deed from the Youngs; while on the other hand, Carla claimed title under a deed from Merle Sr. These are separate and distinct deeds—the source was not the same. Consequently, Merle Jr. was required to deraign his title, and the chancellor found that he failed to do so.

The COA’s opinion at ¶12 points out that the deraignment issue was addressed by the judge even though it “never arose at trial.”

Finally, the opinion took up Merle, Jr.’s claim that the 1999 deed was intended to be to him:

¶21. Additionally, Merle Jr. argues that the chancellor erred in finding that it was Merle Sr., and not Merle Jr., to whom the Youngs conveyed the property. We disagree. First, the record shows that Young testified that even though the deed used the name “Merle George Smith” it was his intent to convey the property to Merle Sr. Second, while Merle Jr. might have provided the money for the transaction, the record shows that it was Merle Sr. who provided the check to Young as payment for the property. In fact, Young testified that up until the day of the court hearing in 2016, he had never met Merle Jr. And third, the record shows that despite Merle Jr.’s claim to the property, he had never paid any property taxes on it, and had never paid for the maintenance or upkeep of the property.

¶22. Merle Jr. attempts to thwart the chancellor’s findings by highlighting the fact that he paid for the property, and that the title was sent to his place of residence. Merle Jr. argues that this was undisputed proof of his alleged agreement with his father. Yet after consideration of all of the testimony, the chancellor found Merle Jr.’s argument unpersuasive. That said, there is nothing in the record to allow us to find that the chancellor’s conclusion was clearly erroneous.

Two procedural hurdles, (1) possession or unoccupancy and (2) perfect title, tripped up Merle, Jr. in this case. It was his duty to establish both, and he fell short.

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