SOL in a Suit to Set Aside a Deed
December 17, 2018 § 1 Comment
Bryant was administrator of Cooley’s estate. She filed suit to remove cloud from title and to set aside a deed signed by Cooley, alleging undue influence, lack of capacity, and fraud. She also claimed the deed was void due to the fact that Cooley’s wife had failed to execute it.
A chancellor dismissed Bryant’s suit, finding it barred by the the three-year general SOL (statute of limitations). The judge found that Bryant had not maintained a possessory interest in the property, and so the three-year statute applied. Bryant appealed.
The COA, in Bryant v. Dent, et al., decided September 18, 2018, reversed and remanded, holding that the ten-year statute applied. Judge Lee wrote for a unanimous court:
¶11. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code sections 15-1-7 and 15-1-9. In relevant part, section 15-1-7 provides:
A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.
Miss. Code Ann. § 15-1-7 (Rev. 2012). Similarly, section 15-1-9 provides:
A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity.
Miss. Code Ann. § 15-1-9 (Rev. 2012). “A suit to remove a cloud on title is considered an action to recover land.” Lott v. Saulters, 133 So. 3d 794, 799 (¶8) (Miss. 2014).
¶12. We find the chancellor’s reliance upon O’Neal Steel Inc v. Millette, 797 So. 2d 869 (Miss. 2001), is misplaced. There, O’Neal sought to enforce a judgment lien, not title or possession of the property at issue. Id. at 874 (¶15). The supreme court stated that a “judgment lien does not create in O’Neal a possessory interest in the real property,” and “absent any possessory interest in the subject property, O’Neal cannot claim that this
litigation is an action to recover land.” Id. at 873 (¶¶12,13).
¶13. Here, Bryant, as administrator for Cooley’s estate and individually as a possible heir of Cooley, seeks possession of the real property deeded away by Cooley, allegedly due to undue influence. In a similar situation, the supreme court held that the ten-year statute of limitations applied. See In re Estate of Reid, 825 So. 2d 1, 6 (¶¶16-19) (Miss. 2002). There, the decedent’s potential heir alleged undue influence in an attempt to set aside the decedent’s transfers of real property to her adopted son. Id.
¶14. Because the ten-year statute of limitations applies, Bryant’s suit is not barred. Thus, we reverse and remand for further proceedings.
The court affirmed the chancellor’s dismissal of Bryant’s fraud claim, agreeing with the chancellor that that the pleading did not meet the requirements of MRCP 9(b).
The court also noted that, due to the remand, Bryant could pursue the claim of failure to join Cooley’s wife on in the transaction on remand if she chose to do so.
The Better Chancery Practice Blog 
Just for the sake of interest, Judge I was in a case the MSSC ruled on in 2012, Lott & Saulters, where the grantor reserved a life estate and was still alive at the time my client filed suit to aside the deed. It was after the 10 year SOL but the court ruled the SOL did not apply because is had not started running against my client since the life estate was not yet extinguished. Interesting twist on the SOL.