Jones v. Curtis: Serve a Rule 81 Summons on your Counter-Petition or Else
October 11, 2024 § 1 Comment
By: Chancellor Troy Odom (Rankin County Chancery Court)
“The party who brings suit confers by that act all necessary personal jurisdiction as to himself.” Miss. Chancery Practice § 2.13 at 37 (2017 ed.). That’s axiomatic, right? In a circuit or federal court practice, a defendant who files a counterclaim does not serve a Rule 4 summons on the plaintiff—the plaintiff already subjected themselves to the personal jurisdiction of the court through their initial filing.
That rule does not apply to chancery court litigation initiated through a Rule 81 summons. For example: You are a respondent in a custody modification proceeding brought by your ex-spouse. You file a counter-petition for a downward modification of child support. For personal jurisdiction to attach, you must serve your ex with a copy of the counter-petition and a Rule 81 summons. Rely to your own peril on simply filing the answer and counter-petition on MEC or emailing a copy of the counter-petition to counsel opposite.
The issue of whether a respondent must serve the petitioner with process to obtain personal jurisdiction arose in Pearson v. Browning, 106 So. 3d 845 (Miss. Ct. App. 2012). The parties to this proceeding were previously divorced. Browning, the wife, had been awarded custody of the subject child through the divorce judgment. Years later, Pearson, the non-custodial parent, filed a petition to modify custody and for other relief. Browning filed a counter-petition, seeking to have Pearson held in contempt for non-payment of a retirement benefit ordered through the divorce judgment. Browning never served Pearson with a Rule 81 summons on her counter-petition.
When Pearson’s initial petition was dismissed, there remained for adjudication only Browning’s counter-petition for contempt. The trial for Browning’s counter-petition was set for November 3, 2010, by court administrator’s notice. On the day of trial, Pearson, unrepresented by legal counsel, “inartfully” argued lack of adequate notice and requested a continuance, which was denied. The court proceeded to trial and eventually found Pearson in contempt and ordered him to pay Browning $53,528.22. Pearson appealed, arguing lack of personal jurisdiction since Browning failed to serve him with a Rule 81 summons on the counter-petition.
As an aside, the court of appeals made observations at the beginning of its analysis that serve as important reminders to chancery court practitioners: “In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties.” Pearson, 106 So. 3d at 848. The court also stated that “for no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.” Id. (emphasis added).
Ultimately, the court held that the trial court lost jurisdiction over Pearson because he was not served with a Rule 81 summons on the counter-petition. Interestingly, the court of appeals stated that before Pearson’s initial claims were dismissed, he “simply was not entitled to a Rule 81 summons because he was the plaintiff.” Id. at 848. “Because Pearson was the plaintiff prior [to his claims being dismissed] he cannot properly raise a jurisdictional issue before that date.” Id. at 848. By being the plaintiff, Pearson consented to personal jurisdiction. Id. These statements by the appellate court would indicate that a counter-petition of the type enumerated in Rule 81(d)(1) or (2) does not require a Rule 81 summons so long as the initial claim remains.
[Judge’s note: This case seemed to hang on the fact that the initial petition was dismissed prior to trying the issues raised in the counter-petition. The cases discussed below do not make this distinction.]
Three years later, the court of appeals in Curry v. Frazier, 119 So. 3d 362 (Miss. Ct. App. 2013) tweaked its tune. The parties to this case were subject to a judgment of paternity, child support, and visitation. Eleven years after entry of that order, the non-custodial father, Curry, filed a petition asking solely for the child’s name change. The custodial mother, Frazier, counter-petitioned for an upward modification of child support. No Rule 81 summons was ever issued on the counter-petition. After the trial court entered a judgment modifying child support, Curry appealed.
The court of appeals stated, simply:
A Rule 81 summons needed to be issued for the modification issue. No Rule 81 summons was ever issued for the modification of child support issue. Without the issuance of a proper Rule 81 summons, the court had no jurisdiction to hear the case.
Curry, 119 So. 3d at 365.
Thus, a Rule 81 summons was necessary for the counter-petition. It is not clear whether the initial petition to change name was pending at the time of trial.
[Judge’s note: Pearson is not mentioned in Curry. However, the two cases are arguably consistent. Presumably, Curry’s petition to change the name was fully decided at an earlier hearing, which would have the same effect as the dismissal of Pearson’s initial claims.]
Similarly, in Estate of Labasse, 242 So. 3d 167 (Miss. Ct. App. 2017), one of the contestants to the decedent’s last will and testament filed a petition for contempt against the executrix of the estate. A Rule 81 summons was issued for the executrix and mailed to the attorney for the estate. The court of appeals held that the petition for contempt, filed within an ongoing estate proceeding, was subject to the service requirements of Rule 81. No personal service meant no personal jurisdiction.
[Judge’s note: It is becoming clear that the Court of Appeals considers any Rule 81 claim raised in ongoing litigation a distinct proceeding, necessitating separate service of process.]
In Hilton v. Harvey, 284 So. 3d 850 (Miss. Ct. App. 2019), the court of appeals held that the 120-day time limitation on service of process under Rule 4(h) does not apply to matters falling under a Rule 81 summons. In doing so, the appellate court assumed the necessity of a Rule 81 summons for a counter-petition. No analysis was afforded the issue of whether a summons was necessary in the first place.
Now, with the recent case of Jones v. Curtis, No. 2023-CA-987-COA (Miss. Ct. App. September 17, 2024), there should be no question that service of a Rule 81 summons is necessary for a counter-petition—regardless of whether the initial petitioner’s claims survive.
Jones, the mother of the child, filed a petition to modify the joint physical custody arrangement. Curtis, the child’s father, filed an answer and counter-petition, also requesting modification of custody. Following trial, the court awarded physical custody to the father.
Jones appealed, arguing the chancellor lacked jurisdiction to hear either party’s petition due to insufficient service of process. (¶14). The appellate court’s analysis follows:
¶ 20 . . . While Rule 81(d)(4) states that an answer is not required in a modification-of-custody action, Curtis’s filing also set forth his counter-complaint for modification, which does require a Rule 81 summons. M.R.C.P. 81(d)(5); see Hilton v. Harvey, 284 So. 3d 850, 854-55 (¶¶15-16) (Miss. Ct. App. 2019); Pearson, 106 So. 3d at 849 (¶19). It is undisputed that Curtis failed to provide Jones with Rule 81 process. This Court has held that “in Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective.” Pearson, 106 So. 3d at 850 (¶27). When service is defective, “[any] resulting judgment is void because it is made without jurisdiction over the parties.” Id. at 848 (¶9).
* * *
¶22. . . . Curtis failed to provide Jones with Rule 81 service upon the filing of his counter-complaint for modification. Vincent, 872 So. 2d at 678 (¶8); Pearson, 106 So. 3d at 850 (¶27). As a result, “[t]he only avenue where the chancery court still would have jurisdiction over [Jones at the time of the hearing] is if [she] waived the lack of a Rule 81 summons by appearing.” Pearson, 106 So. 3d 851 (¶28).
(emphasis added).
Judge’s Analysis
The norm for most chancery court practitioners, at least in Rankin County, is to avoid raising personal jurisdictional issues unless necessary to secure a continuance or stave off a surprise counter-petition. There is honor in proceeding to trial as previously agreed without the expense or hassle of service of process. As a result, attorneys skip jurisdictional squabbles by simply trying the case. This makes life easier—and justice speedier—for all concerned.
But it is difficult at times to describe to an attorney (when the issue is raised) why they must serve a Rule 81 summons on their counter-petition. Why? they ask: hasn’t personal jurisdiction already attached—the petitioner has already subjected themselves to the personal jurisdiction of the court through their respective filing.
I guess the best way to describe it is that any cause of action listed in Rule 81(d)(1) or (2) cannot be a “counterclaim.” Instead, those causes of action are their own separate and distinct “petitions,” no matter how related they are to the claims made in the initiating pleading. Because those causes of action are special, a Rule 81 summons must be issued served. It does not matter that there is ongoing litigation.
However, does that mean that Rule 13(a)—compulsory counterclaims—and its language on res judicata and collateral estoppel does not apply? Or, does Rule 13(a) still apply, but Rule 5 does not.
On January 10, 2020, the Supreme Court Advisory Committee on Rules filed a Motion to Amend Rule 81 (Motion No. 2020-91), proposing many changes. One of those proposed changes would allow for Rule 5 service on counter-petitions. The motion mentions Pearson and Hilton as the motivating factor for the proposed change.
The Mississippi Supreme Court sought comment on the motion. I cannot find where any comments were received by the Court. I believe the motion is still pending.
Enforcing an oral contract to transfer land – Equitable estoppel
October 8, 2024 § Leave a comment
By: Donald Campbell
William Howard, Jr. and John Carpenter Nelson, Jr. own property in Forrest County, Mississippi just north of Camp Shelby. The area is wooded and undeveloped. There is a “woods road” that runs from a paved road (Northgate Road) that traverses the land owned by Howard and Nelson, but the location of the road requires Howard and Nelson to cross the other’s property.
In May/June 2021, Howard and Nelson orally entered into an agreement whereby Nelson would convey about .06 acres to Howard, which would allow Howard to use the existing road without crossing Nelson’s property. In exchange, Howard agreed to convey to Nelson a 15-foot strip of property to provide full access off of Northgate Road to Nelson’s property and also a right of ingress/egress to existing woods road. The agreement was never reduced to writing.
In reliance on the agreement, Howard paid to have a survey completed, had deeds drafted, and obtained a partial release from a bank in anticipation of the transaction being completed.
May 5, 2022, before executing the deeds, Nelson passed away and his estate refused to recognize the agreements.
Howard filed a complaint in Forrest County Chancery Court alleging breach of the oral contract for the exchange of land. Although recognizing that the statute of frauds ordinarily required a contract for the transfer of property to be in writing, Howard alleged an exception to the statute of frauds applied – equitable estoppel. The case was assigned to Chancellor Rhea Hudson Sheldon. Chancellor Sheldon held that the agreement had to be in writing to be enforceable and that equitable estoppel did not apply and granted Nelson Estate’s motion to dismiss.
Howard appealed and the case was assigned to the Court of Appeals. A panel consisting of Judges Wilson, Westbrooks, and McDonald heard the case. Judge Wilson wrote for a unanimous court affirming the chancellor: Howard v. Nelson, 2024 WL 4354185 (Miss. Ct. App. 2024).
The Court of Appeals began its analysis by noting that, ordinarily, the transfer of an interest in land must satisfy the statute of frauds to be enforceable. However, there is a “well-established” exception to the statute of frauds – equitable estoppel. If a claim for equitable estoppel can be established, a party can enforce an agreement even though it does not satisfy the statute of frauds.
The elements to establish equitable estoppel are: (1) belief and reliance on some representation; (2) change of position as a result thereof; and (3) detriment or prejudice caused by the change of position. The court of appeals noted that equitable estoppel should only be allowed in exceptional circumstances.
Here, Howard did not allege any facts that would demonstrate the type of detriment that would justify the application of equitable estoppel – instead “he undertook some typical preparations for a land transaction” (hiring a lawyer, having surveys done, obtaining a partial release). Furthermore, a year passed between the time of the oral agreement and the death of Nelson, further indicating that Howard did not suffer the type of detrimental reliance contemplated by equitable estoppel.
The court affirmed the chancellor’s dismissal of Howard’s complaint.
Professor’s Notes
The equitable estoppel exception to the statute of frauds is premised on the idea that a party should not be able to make an oral agreement, know/expect that the other party would rely on that oral promise and then, after that reliance has occurred, seek to refuse enforcement of the agreement. Crucial to an equitable estoppel claim is sufficient evidence of reliance to an extent that it would be unjust to deny enforcement of the oral agreement.
To give an example of when equitable estoppel would apply, consider Martin v. Franklin, 245 So. 2d 602 (Miss. 1971). In this case (which was cited by the Court of Appeals), the state straightened a road that went across property owned by Martin and Franklin. The parties agreed to verbally swap land so that the road became the agreed-upon border of the property. Thereafter, Martin, relying on the oral agreement, constructed a house on the property. Franklin, who observed the construction, did not say anything until the contractor was putting locks on the doors and then asked the contractor, “Do you know you are building a house on my land?” The Supreme Court held Franklin could not enter into an oral agreement, stand by and allow Martin to incur the cost of a house in reliance on the oral promise and then seek to deny the existence of an agreement. Therefore, the oral promise to convey the property was enforceable.
The court of appeals is correct to note that the type of reliance and prejudice contemplated by equitable estoppel is more than “typical” costs that would be incurred in the purchase of property. If that was all that was required it would make the statute of frauds meaningless. The prejudice such that it would be inequitable to allow the other party (here Nelson) to deny enforcement of the agreement despite there being no writing. This might be building on the property or selling their home in reliance on the promise of the seller to convey the property (the Property textbook favorite Hickey v. Green, 442 N.E.2d 37 (Mass. Ct. App. 1982)).
Podcast recommendation — and request for suggestions
October 4, 2024 § 4 Comments
By: Donald Campbell
I am going to be traveling over the next couple of days. I really enjoy listening to podcasts while I am driving. So, I thought I would recommend a podcast that I came across on my last trip and ask for suggestions from you for good podcasts.
The podcast that I would like to recommend is Celebrity Estates Podcast. From King Charles to Larry King, the podcast takes one estate an episode and uses it to demonstrate a particular legal point and discuss whether the estate plan was effective (usually the answer is no.).
So now I ask you — what podcast would you recommend for a long trip?
Just when you thought the Mortmain law was dead (Mississippi Baptist Foundation v. Fitch)
October 1, 2024 § Leave a comment
By: Donald Campbell
This is an unusual post. It is about a 2023 case dealing with Mississippi’s Mortmain law – a law that was repealed in the early 1990’s.
Reverend Harvey McCool died on August 31, 1969, survived by his wife Maggie McCool. In his will, he devised a mineral interest that he owned to the Mississippi Baptist Foundation (MBF), to be held in trust for his wife and his sister for their lives. At the death of his wife and sister, the MBF was to use the property “for the use and benefit of Foreign Missions carried on by, under the auspices of, or participated in by, the Mississippi Baptist Convention.”
Maggie died on April 17, 1973, with a will leaving her property to 3 children from a previous marriage (including the mineral interest). Reverend McCool’s sister died on February 5, 1986.
In December 2019, MBF filed a complaint in Amite County Chancery Court to probate Reverend McCool’s will and confirm title to the mineral interest. Because MBF was challenging the constitutionality of Mississippi’s Mortmain statute, the Attorney General, in addition to the heirs and successors of Maggie, were made parties to the suit.
The case was assigned to Chancellor Debbra K. Halford. The chancellor held that the Mortmain laws were constitutional, and that MBF was divested of any interest in the property in 1979 – ten years after the death of McCool.
MBF appealed and the case (Mississippi Baptist Foundation v. Fitch, 359 So. 3d 171 (Miss. 2023)) was decided by the Mississippi Supreme Court on March 16, 2023. The case was heard by a panel of Justices King, Chambelin, and Ishee. Justice King wrote the opinion for a unanimous court affirming Chancellor Halford.
The outcome in this case turns on the validity of Mississippi’s Mortmain law. These laws, which trace their origins to the Magna Carta, were designed to restrict the ability of organizations (explicitly including charitable and religious organizations) to hold property. In Mississippi, Mortmain laws date back to 1857. The 1890 constitution prohibited all testamentary devises to religious or ecclesiastical institutions. By 1940, the Constitution had been amended to provide that no person could devise more than one-third of their estate to “any charitable, religious, educational or civil institutions to the exclusion” of certain heirs, and also included the following restrictions: (1) any devise, regardless of amount, was invalid if devised less than 90 days before the death of the testator; and (2) the organization could only hold the property for 10 years after the death of the testator, and if the organization had not sold the property within 10 years, it reverted back to the estate of the testator. The loosening of the prohibition from 1890 to 1940 was to bring some balance – by continuing to protect against the concerns that the Mortmain law was designed to address while at the same time providing some ability for the testator to promote religious or charitable organizations.In 1987/1988 the Constitution and statute were amended again to make it clear that the ten year restriction begins to run “after such devise becomes effective as a fee simple or possessory interest.”
Thereafter, in 1992/1993 the Mortmain law – both the Constitutional provision and the related statutes were repealed.
It was the 1940 version of the Mortmain law that was in effect at the time of Reverend McCool’s death. Under that law, MBF could only hold the property in fee simple absolute for 10 years before it reverted back to Reverend McCool’s estate. MBF argued that McCool’s will devised a life estate to Maggie and McCool’s sister, and that MBF did not acquire a fee simple absolute interest – triggering the 10 year limitation – until 1986 at the death of McCool’s sister. And, MBF argued, since the Mortmain laws were repealed in 1992/1993 – their limitations did not apply when the 10 year reversion kicked in in 1996. In addition, MBF argued, if the Mortmain statute did apply, it was unconstitutional.
In a Court of Appeals case from 2012 (Hemeter Properties, LLC v. Clark, 178 So. 3d 730 (Miss. Ct. App. 2012)), the court held that, where a legal life estate was left to family members, with a remainder interest to a charitable organization, the 10 year time frame did not start until the family members died because the organization could only sell the property with the right of possession after the family member’s death.
The Court noted that this case was not like Hemeter. Here, the MBF owned the property as a trustee with the right to dispose of the property at any time (unlike Hemeter). Therefore, because MBF had the right to dispose of the property at the death of Reverend McCool, the ten years to dispose of the property began running at Reverend McCool’s death in 1969. MBF did not sell the mineral interest before 1979, therefore the property interest reverted to estate of Reverend McCool in 1979.
The Court refused to address MBF’s argument that Mississippi’s Mortmain law is unconstitutional – holding that MBF knew (or should have known) about the Mortmain statute issue at Reverend McCool’s death and waited more than 40 years to challenge the statute’s constitutionality. Therefore, MBF was barred both legally (under the statute related to claiming an interest in land) and equitably (failure to act timely to protect their rights) from making a constitutional argument.
Professor Thoughts
One thing I always tell my students in Wills & Trusts and Property Law classes is how far reaching their representation can be. Mistakes in property transfers (either by deed or by will) may not be recognized until years later. This case is certainly an example of that. I only teach Mortmain statutes in passing, because they have been repealed or declared unconstitutional in almost all jurisdictions today.
Because a number of lawyers practicing today have probably never studied (or perhaps heard of) Mortmain laws, I thought a short discussion would be worthwhile. If nothing else, this should get you a point if this is the answer to a trivia question.
The Statutes of Mortmain were first enacted in the late 1200’s during the reign of Edward I. The goal was to prevent land from passing into the hands of the church and out of the taxing authority of the crown. This was the same justification for enactment of Mortmain laws in the United States – taking property permanently out of the stream of commerce and the taxing authority of the state.
This was not the only justification, however. There was also the concern that a testator who is near death could be in a position to be unduly influence by charitable organizations – leveraging the testator’s fear of death to secure a bequest. Hence, Mississippi’s 1940 version of the law which invalidated bequests made within 90 days of death.
A final justification (and this is my favorite) is to prevent a testator who was not charitable during life to be charitable at death at the expense of their family. Mississippi’s law reflected this by restricting the amount that could be devised to no more than one-third of the testator’s estate.
It might be worthwhile setting out the constitutional challenges to the Mortmain statute argued by MBF. While the Supreme Court did not address these arguments, other states have invalidated their Mortmain statutes based on constitutional challenge.
The essential argument is that Mortmain laws violate the Equal Protection Clause because they are not able to survive rational basis review. Specifically, MBF’s brief argues that the purpose of the Mortmain laws are to prohibit the testator from being unduly influenced by the named organizations and they are not rationally related to that goal because:
- They do not take into account the susceptibility of the individual testator to undue influence or whether the testator was actually in their last illness at the time the bequest was made;
- They do not take into account whether the testator has close family that need to be protected from overreach;
- They do not take into account the fact that others are in “an equal position to improperly influence the testator, including lawyers, doctors, nurses, clergymen, caretakers, housekeepers, companions, and the like” and there is no reason to believe that religious or charitable organizations are more “unscrupulous than greedy relatives, friends, or acquaintances”;
- The statutes do not address inter vivos gifts and non-charitable gifts that have the same potential for overreaching.
To the extent that a proper case comes forward, these arguments remain valid arguments against the Mortmain law. It should be noted, however, that there are counter arguments. For example, the fact that the charity could sell the property within 10 years and not lose the value of the bequest could save the statute if a valid challenge is ever raised.
Keeping the faith – state of mind in an adverse possession case
September 27, 2024 § 1 Comment
By: Donald Campbell
Signaigo v. Grinstead, 2024 WL 2284923 (Miss. Ct. App. 2024)
William and Judith Signaigo purchased property in Shorelines Estates in Hancock County in 1997. The adjacent property was owned by Helene A. Boubede at that time. Boubede lived in Iowa and, when she died, the property went to her daughter Myrna Grinstead.
After moving onto the property, the Signaigos fenced in part of their property and all of the Boubede property. When asked if she gave any thought as to whether they were fencing in someone else’s property, Mrs. Signaigo testified: “No. The only thing I was concerned about was the fact that there’s water here and there is a street there and the dogs were bringing stuff back from other places and we wanted to fence it in.” She also testified that she and her husband knew that the property was not theirs. In fact, they tried to contact Ms. Boubede about purchasing the property but were not able to get in contact with her. Beginning in 1997, the Signaigos performed all upkeep on the disputed property: mowing the grass, removing debris following hurricanes, removing trees, and providing fill material.
On September 15, 2021, the Signaigos filed a lawsuit against Boubede/Grinstead claiming ownership of the property by adverse possession. The case was assigned to Chancellor Margaret Alfonso. After a hearing, the chancellor found that adverse possession had not been established because the the Signaigos did not establish: (1) claim of ownership of the property; or (2) open and notorious possession. Signaigos appealed and the case was assigned to the Court of Appeals.
Judges Barnes, Greenlee, and McCarty were on the panel that heard the case. Judge Greenlee, writing for a unanimous court, affirmed Chancellor Alphonso.
To establish a claim of ownership by adverse possession in Mississippi the adverse possessor must satisfy the following six elements for 10 years (see Miss. Code Ann. 15-1-13): (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for 10 years; (5) exclusive; and (6) peaceful.
The dispositive issue was whether there was a “claim of ownership.” There have been a split of decisions in Mississippi when it comes to what it means to claim ownership. Some older cases have said that the key to a claim of ownership is the taking of steps demonstrating that the adverse possessor is making a claim to the property. Therefore, the determining factor was what the adverse possessor did to possess the property — not the state of mind of the adverse possessor. For example, in 1846, the High Court of Errors and Appeals of Mississippi held: “There is no doubt, that the possession of a mere intruder, is protected to the extent of his actual occupation; whilst one who has color of title is protected to the extent of the limits of his title.” (Grafton v. Grafton, 16 Miss. 77, 91 (Miss. 1846)). Again, in Levy v. Campbell in 1946, the court notes that, as far back as 1858: “it has been settled rule in this state that although the possession may have been begun by a mere intruder without any color of title at all, the occupant may establish title by adverse possession to the extent of his actual occupation.” In short — it does not matter that the adverse possessor knows that they are trespassing so long as they actually take possession.
A 2004 Mississippi Supreme Court case (Blackburn v. Wong, 904 So. 2d 134 (Miss. 2004)) rejected the idea that possession is all that matters and required the adverse possessor to be acting in good faith. “Good faith” means that the adverse possessor must have a reasonable belief that they have rights in the property. In Blackburn a lawyer built a law office onto the property of another. Shortly after the building was constructed, a surveyor informed the lawyer that his office was across the property line. At that point the lawyer testified he had three options: (1) contact the true owner to try to purchase the property; (2) dig up the sewer lines and tear down the building; or (3) wait for the adverse possession time to pass and claim ownership. The lawyer chose to wait out the time for adverse possession. The lawyer possessed the property from 1971 through 1999 (when the suit commenced). The court, without much analysis held that, because the lawyer found out that he did not own the disputed strip shortly after the building was completed, he could not claim the property by adverse possession.
Relying on the Blackburn holding, the court in Signaigo held that, because the Signaigos knew that they did not own the property at the time they went into possession, they could not establish the element of “claim of ownership”. Therefore, the heirs of Boubede own the disputed parcels. The court remands the case for a determination of heirship.
Professor Thoughts
The justification of allowing adverse possession is to ensure that property is used and not abandoned by an absentee owner without any hope of putting the property back into use. To this end, there are three approaches that states have taken to determine whether an adverse possessor can demonstrate a “claim of title”: (a) good faith; (b) bad faith; and (c) objective approach (state of mind is irrelevant).
The majority of states take the approach that the state of mind is irrelevant. The rationale for taking this approach is two-fold: (1) if the justification of adverse possession is to reward the industrious possessor and punish the true owner who has not bothered to check on their property for more than 10 years — whether the adverse possessor knew the property was not theirs or whether they had a reasonable belief it was, is irrelevant; and (2) requiring testimony of a state of mind can encourage adverse possessors to lie on the stand to conform their testimony to what is required in the jurisdiction. Those older Mississippi cases followed this approach — emphasizing the possession over the state of mind. In adopting the objective approach (and abandoning the good faith approach), the Washington Supreme Court noted: “The doctrine of adverse possession was formulated at law for the purpose of, among others, assuring maximum utilization of land, encouraging the rejection of stale claims and, most importantly, quieting titles… Because the doctrine was formulated at law and not at equity, it was originally intended to protect both those who knowingly appropriated the land of others and those who honestly entered and held possession in full belief that the land was their own… Thus, when the original purpose of the adverse possession doctrine is considered, it becomes apparent that the claimant’s motive in possessing the land is irrelevant and no inquiry should be made into his guilt or innocence.” (Chaplin v. Sanders, 676 P.2d 431, 435 (Wash. 1984)(en banc))
Some states (after Wong, Mississippi is in this category) require that the adverse possessor act in good faith (have a reasonable belief that they own the property to satisfy the claim of ownership requirement). The justification for this approach (and this is apparent in both the Wong and Signaigo case) is the refusal to reward land pirates (ie intentional trespassers). Under this approach, it does not matter that the Signaigos put the property to use from 1997 until 2021 or that Blackburn had his law office on the property from 1971 until 1999 — the fact that they were using the property knowing it was not theirs, defeated their claim.
The final approach, bad faith, is only followed by one state that I am aware of — Arkansas (Fulkerson v. Van Buren, 961 S.W. 2d 780 (Ark. Ct. App. 1998)) Under this approach, to satisfy the “claim of ownership” element, the adverse possessor must be able to show that they knew that the property was not theirs and they intended to claim it as their own. The rationale is that someone should not be able to gain title (and the owner should not lose title) by accident. To claim title by adverse possession, the possessor must intend to do so.
The bottom line: in an adverse possession case, the adverse possessor must be able to demonstrate by clear and convincing evidence that they had a good faith belief they had a right to the disputed property. This should not be a problem in a run-of-the-mill boundary line dispute case where the parties genuinely did not know about the encroachment until it is revealed years later (for example Conliff v. Hudson, 60 So. 3d 203 (Miss. Ct. App. 2011)). However, a client who has long possessed the property and either knows they have no ownership interest in the property or learn, before the 10 years runs, that they are not the owner of the property, will not be able to establish the “claim of title” element of adverse possession.
Posthumously Conceived children
September 24, 2024 § 1 Comment
With advances in technology, babies can now be created without sexual intercourse. The use of assisted reproductive technology has been increasing. In 2021, 2.3% of infants born in the United States were conceived with assisted reproductive technology. Under traditional law, if a child was not in utero at the time of the parent’s death – they were not considered the child of the deceased. Today, however, a deceased person can be the biological parent of a child long after their death.
Children conceived by assisted reproductive technology raise unique challenges for the traditional inheritance system. First, the parent who predeceased before the child was conceived may have no knowledge that their biological material would be used to assist in reproduction, and therefore may not want the after born child to have a share of their estate. Second, any inheritance that is provided for the child will diminish the amount that is taken by children who were born or conceived prior to the parent’s death, and could disrupt the orderly administration of the estate if there are no limitations on how long after the parent’s death a child can be conceived.
The issue is how to balance the competing concerns between the innocent child, the deceased’s interest in controlling where their property goes, and the efficient administration of estates. It should be noted that the outcome impacts issues beyond the inheritance system itself. Survivorship rights are often determined by whether the person has the right to inherit under a state’s descent and distribution law. The Social Security Administration considers a posthumously conceived child as a non-marital child who is only entitled to benefits if they are entitled to inheritance rights under state intestacy law.
In 2024, Mississippi adopted House Bill 1542 that sets out the rights of children conceived by assisted reproductive technology (methods of conception without sexual intercourse). The law provides that children born through assisted reproductive technology can inherit a child’s share of the deceased parent’s personal property if certain procedures are followed. The law is tilted the Chris McDill law in memory of Chris McDill. McDill was diagnosed with cancer and he and his wife Katie were unable to conceive before his death. Katie subsequently had a child through IVF, but was not able to claim survivor benefits through the Social Security Administration because the child was not entitled to inherit under Mississippi law.
First, the parent must have died without disposing of all of their personal property. Therefore, a posthumously conceived child’s rights are solely in personal – not real – property. Furthermore, if the deceased has disposed of all of their personal property in a will to someone other than the posthumously conceived child – the subsequently born child is not entitled to inherit.
Next, there must be a document signed by the deceased parent and the person that is planning on using the genetic material that the now-deceased parent consented to the use of genetic material in assisted technology after their death. The requirement that there be a record of consent from the deceased parent is to recognize and respect the reproductive desires of the deceased.
After death, the personal representative and the court must have been given notice or had actual knowledge of the intent to use genetic material in assisted reproduction not later than six months after the death of the parent. Thereafter, the embryo must be in utero not more than thirty-six months after the parent’s death, and the child must be born not later than forty-five months after the parent’s death and must live 120 hours after birth. The purpose of setting this time frame is to give the surviving parent an opportunity to grieve and contemplate whether to use the genetic material while, at the same time, ensuring that the estate will not remain open indefinitely.
If the deceased was divorced or legally separated from the individual seeking to use the genetic material, there is a rebuttable presumption that the decedent did not consent to use of their genetic material in assisted reproductive technology.
If the requirements above are satisfied, the court shall set aside a child’s share of the qualifying personal property. Each qualifying child would share in that child’s share of the estate. The court should then distribute the remainder of the estate as provided by law of descent and distribution and close the estate for all purposes except distribution of the set-aside property. Once the eligible children (born and survive 120 hours) are ascertained, the court should distribute the set-aside property to those children. If there are no eligible children, the court should distribute the estate according the descent and distribution statute. The statute expressly provides that it is the intent of the law that “an individual deemed to be living at the time of the decedent’s death” under the statute would qualify for federal survivor benefits.
Your eyes are not deceiving you
September 20, 2024 § 27 Comments
My name is Donald Campbell. I am a professor at Mississippi College School of Law where I teach in the areas of Property, Wills & Trusts, and legal ethics. When I first started teaching Wills a colleague told me that I had to subscribe to Judge Primeaux’s blog. I did, and thereafter I looked forward to every post that he made. And it was not just me. There is no doubt that Judge Primeaux’s blog was a go-to for all things chancery (and beyond) for years. When Judge Primeaux decided to step away from blogging it was a loss for the profession.
I am excited to announce that with the judge’s blessing, I am hoping to bring back a version of Better Chancery Blog. The focus will still be on issues/cases that arise in chancery court. Of course the problem is that I can never produce the “my thoughts” comments that pulled back the curtain on how a judge thinks. I am hoping that, through the comments members of the bar and bench can engage in a discussion of how these issues arise in practice.
Although I realize I am burying the lead, I am truly honored to have Dean Debbie Bell as a contributor to the blog on family law issues. Dean Bell needs no introduction. Her book (Bell on Mississippi Family Law) is a well-respected and often-cited treatise on family law in Mississippi. I am excited to see the insight that Dean Bell will bring to the blog.
To give you a sense of how the blog will operate going forward, I hope to post twice a week. A post on Tuesday that covers a recent issue or case. Then a post on Friday that looks at a case or issue that may not be directly related to current issues in Mississippi law. If there are any suggestions on improving the blog as we move forward, please to not hesitate to reach out.
The Better Chancery Practice Blog 