The Trap of the Oral “Easement”

November 5, 2018 § Leave a comment

The Stewarts and the Smiths owned adjoining lots on a lake where they and others enjoyed water skiing. They and some other neighbors deepened a drainage ditch for lake access, and built a boat ramp and retaining walls. The retaining walls were on both properties, but the boat ramp was almost entirely on the Smiths’ lot. In exchange for sharing the cost of the project, the Smiths gave permission for all participants to use the ramp freely, which they did. The offer and agreement were oral and never reduced to writing or recorded.

In 1995, Girani acquired the Stewarts’ lots, and he made further improvements and repairs to the boat ramp. He continued to use the ramp at will, and did not make any effort to acquire a written, recorded easement.

In 2006, Lovorn acquired the Smiths’ lots and blocked the boat ramp, insisting that the others get permission before using it.

At that point, Girani filed suit in chancery court. In the absence of a written, recorded easement, he urged the chancellor to find that the parties’ actions had created an “easement by estoppel.” Or, he suggested, the chancellor could find that he has an “irrevocable license” to use the ramp, based on the consideration of his contribution to the boat ramp and channel. The chancellor denied any relief, and Girani appealed.

In Girani v. Lovorn, decided October 9, 2018, the COA affirmed, with Judge Tindell writing the unanimous opinion:

¶9. Although Girani acknowledges Mississippi caselaw generally fails to recognize either easements by estoppel or irrevocable licenses, he asserts equity allows courts to employ such remedies to prevent injustice. Contending the facts of this case support judicial recognition that he has either an easement by estoppel or an irrevocable license to access Lovorn’s boat ramp, Girani asks this Court to modify or extend existing Mississippi caselaw to provide for such remedies.

¶10. “[A]n easement is an interest in land subject to the statute of frauds, and any agreement to convey or transfer an easement must comply with the statute of frauds, and be conveyed by written deed.” 37 C.J.S. Statute of Frauds § 66 (2017). Where recognized, however, an easement by estoppel provides an exception to the statutes imposing the requirement of a writing. Id. at § 67. The Mississippi Supreme Court has defined easement by estoppel to mean:

[A]n easement which is created when a landlord voluntarily imposes an apparent servitude on his property and another person, acting reasonably, believes that the servitude is permanent and in reliance upon that belief does something that he would not have otherwise or refrains from doing something that he would have done otherwise.

Gulf Park Water Co. v. First Ocean Springs Dev. Co., 530 So. 2d 1325, 1332 (Miss. 1988) (quoting United States v. Thompson, 272 F. Supp. 774, 784 (E.D. Ark. 1967)). In contrast to an easement, a license “confers no interest in the land but merely gives one the authority to do a particular act on another’s land . . . and . . . may be created orally.” 37 C.J.S. Statute of Frauds § 66. “However, it . . . has been said that an irrevocable license is . . . an easement rather than a license.” 53 C.J.S. Licenses § 147 (2017).

¶11. In the present case, Girani admits no written instrument ever existed to grant him permission to use the boat ramp on Lovorn’s land. He therefore relies solely on the remedies of easement by estoppel and irrevocable license for his requested relief. Recognizing that our supreme court has previously looked unfavorably on both irrevocable licenses and easements by estoppel, Girani asks this Court to extend or modify existing Mississippi caselaw on this issue. See Gulf Park Water Co., 530 So. 2d at 1335 (providing that Mississippi “does not recognize ‘irrevocable licenses’”); Belzoni Oil Co. v. Yazoo & Miss. Valley R.R. Co., 94 Miss. 58, 58, 47 So. 468, 472-73 (1908) (refusing to change licenses into an irrevocable right on the basis of equitable estoppel); Beck v. New Orleans & Tex. Ry. Co., 65 Miss. 172, 176, 3 So. 252, 252 (1887) (declining to recognize irrevocable licenses). Upon review, we decline to do so. See Cahn v. Copac Inc., 198 So. 3d 347, 358 (¶35) (Miss. Ct. App. 2015) (“[T]his Court does not have the authority to overrule or ignore supreme court precedent.”). We therefore find this assignment of error lacks merit.

It’s not probable that the MSSC will grant cert and change the law of easement by estoppel or irrevocable license in Mississippi, but stranger things have happened, and I give credit to Girani’s lawyers for pursuing what appears to be the only possible avenue to get their client the relief he is seeking.

Any lawyer who has been in practice a while will recognize this kind of scenario. The client and his neighbors fall into a particular way of doing things until property changes hands and the new owner balks at continuing the longstanding custom. This could have been fixed years ago with a written and recorded easement, but everyone was comfortable with their cozy arrangement so why inject a bunch of lawyers into the picture? Only thing is that the lawyers get involved eventually anyway. “Pay me now or pay me later.”

The Not-So-Mobile Home

August 15, 2018 § 1 Comment

In days of yore, mobile homes really were truly mobile. The wheels stayed on them, right there underneath in the cool dirt where Fido sleeps and lost yard toys go to be seen never more. Even then, though, mobility became more of a concept than reality as years scrolled by, tires dry-rotted, and the “trailer” settled into rust and decay.

In more modern times, mobile homes came to be settled on more permanent foundations, sans wheels, and even became affixed to the land. The legislature even passed laws allowing one to elect whether to treat the so-called mobile home as personal property, like an auto, or as a fixture on the land. Only problem, as you will know if you ever got tangled up in that kind of litigation, the law was not clear about how and when one made that election.

To the rescue came the Mississippi Legislature, which adopted HB 827, signed by the governor on March 19, 2018, and to take effect January 1, 2019. It offers an alternative process that may simplify the process.

Here is a summary of the new law from material presented by Senator Gray Tollison to Summer School for Lawyers:

This bill deals with the manner in which ownership of a manufactured or mobile home (manufactured home) is to be legally recorded as real property and as personal property. The bill authorizes the present system to remain in place for those homeowners, lenders, title insurers and retailers who prefer to use the current procedures in place today. It creates a new process that will be preferred and followed by other homeowners, lenders, title insurers and retailers.

Manufactured homes are generally personal property and are titled similar to motor vehicles by certificate of title; however, under certain circumstances a manufactured home may be so permanently affixed to the land that the law treats it like a site-built house as an improvement to real estate. Whether a manufactured home is personal property or real estate is very important to the homeowner, lender and title insurer. This bill contains specific provisions as to when a manufactured home is considered real estate for both ad valorem tax and bankruptcy law purposes. These provisions respond to questions raised by some lenders and title insurers as to whether a manufactured home should be considered real estate or personal property. This will assist lenders in perfecting security interests. It will also allow title insurers to rely upon a more specific procedure for addressing issues concerning the ways in which manufactured homes may be real property or personal property.

This bill authorizes the homeowner to elect to:

 Declare at the time of registration that the manufactured home is to be classified
as real estate for ad valorem tax purposes only as authorized under current law, or
 To permanently retire the title to the manufactured home by filing an affidavit of

If the homeowner elects to permanently retire the title to the manufactured home, the manufactured home becomes a part of the real estate for all purposes until an affidavit of severance or affidavit of destruction is filed of record. If the homeowner files an affidavit of severance, the manufactured home is retitled and treated as personal property.

Attorneys or title companies closing these transactions will examine the liens reflected on the certificate of title (for personal property) and in the land records (for real property) to insure priority of liens.

Attorney’s Fees as Punitive Damages

January 30, 2018 § Leave a comment

May a chancellor award attorney’s fees in lieu of punitive damages?

That question was before the COA in the case of Cronier, et al. v. ALR Partners, et al., handed down December 12, 2017.

In that case, the Rainwaters (ALR Partners) sued for adverse possession of 9.75, naming the Croniers as defendants. Allen Cronier claimed ownership of the property in dispute. As the matter degenerated from discussion to litigation, Cronier erected fences and gates cutting off the Rainwaterses’ access to the contested property. Cronier even conveyed the disputed property to his twelve-year-old granddaughter, retaining a life estate. Following a trial the chancellor found in favor of the Rainwater claim of adverse possession, ordered Cronier to remove all of the fencing and gates from the property, and ordered Cronier to pay the Rainwaterses’ attorney’s fees and court costs. Cronier appealed, raising several issues, among which was that the court erred in awarding attorney’s fees.

The COA reversed and remanded only for the court to state specifically whether the award of attorney’s fees in lieu of punitive damages. Judge Barnes wrote the 9-1 decision, Judge Tindell concurring and dissenting in part:

¶35. The chancellor ordered the Croniers to pay the Rainwaterses’ attorney fees and court costs because the “actions of Allen in erecting a fence around the property were in clear disregard of the Rainwaterses’ rights.” Additionally, the chancellor stated that Allen “knew at the time he built the fence and conveyed the property to his minor granddaughter that there was a serious claim” to the disputed parcel.

¶36. At trial, the Rainwaterses submitted a statement for attorney fees of $9,790.05, not including ten hours spent at trial. The chancellor added ten hours of fees to this figure, but deducted five hours, because she did not find in favor of the Rainwaterses’ adverse possession claim for the southern portion of the property. Therefore, a total of $10,790.05 in attorney fees was awarded to the Rainwaterses.

¶37. Allen argues that attorney fees are not allowed in the absence of contractual provisions, statutory authority, or an award of punitive damages.

¶38. Mississippi follows the American rule for awards of attorney fees. “[A]bsent some statutory authority or contractual provision, attorneys’ fees cannot be awarded unless punitive damages are also proper.” Fulton v. Miss. Farm Bureau Cas. Ins., 105 So. 3d 284, 287-88 (¶16) (Miss. 2012). Punitive damages are only proper when the plaintiff shows by clear and convincing evidence the defendant acted with actual malice. Miss. Code Ann. § 11-1-65 (Rev. 2014). “[T]he plaintiff must demonstrate a willful or malicious wrong, or the gross, reckless disregard for the rights of others.” Wise v. Valley Bank, 861 So. 2d 1029, 1034 (¶15) (Miss. 2003).

¶39. Here, while there is no contractual provision, statutory authority, or specific award of punitive damages, the chancellor awarded attorney fees for the same reason the Rainwaterses requested punitive damages in their amended complaint (for the “Defendants’ reckless disregard of the Plaintiffs’ rights in this case”). The Mississippi Supreme Court has held that attorney fees may be awarded instead of punitive damages. Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094, 1102 (¶26) (Miss. 2011) (citing Aqua-Culture Tech. Ltd. v. Holly, 677 So. 2d 171, 184 (Miss. 1996)). Here, the chancellor did not specify in her order that she was awarding attorney fees in lieu of punitive damages. However, as the trier of fact she
could have found Allen acted with actual malice in removing boundary markers, and constructing gates and a fence. Accordingly, we reverse and remand for clarification of whether punitive damages were awarded in the form of attorney fees.

So, the award of attorney’s fees will stand if on remand the chancellor finds that Cronier’s conduct was with actual malice, justifying punitive damages, and she specifies that the fee award is in lieu of punitive damages.

The language quoted above is a nice summary of the law of attorney-fee awards in Mississippi. You can recite pretty readily, I am sure, some other avenues for fee awards in chancery, among them contempt, divorce, and as a sanction for discovery misconduct.

Adverse Possession: How You Got There Makes All the Difference

January 9, 2018 § Leave a comment

The Joneses filed suit against the Pruitts claiming that they had acquired title to two parcels of the Pruitt’s land. They claimed adverse possession as to one part, and a prescriptive easement as to another.

The chancellor ruled in favor of the Pruitts, and the Joneses appealed.

in Estate of Jones, et al. v. Pruitt, decided September 26, 2017, the COA affirmed. For purposes of this post, we will focus on the permissive nature of the use. Judge Irving wrote for a more-or-less unanimous court (two judges “concur in part and in result without separate written opinion”):

¶13. The Joneses argue that the chancery court erred in denying their claims for adverse possession or a prescriptive easement with respect to the 455-foot roadway, and for adverse possession with respect to the deer-camp structure. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) provides:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title . . . .

“The standard and burden of proof to establish a prescriptive easement is the same as a claim for adverse possession of land.” Morris v. W.R. Fairchild Constr. Co., 792 So. 2d 282, 284 (¶7) (Miss. Ct. App. 2001) (citation omitted). In either claim, the following elements must be proven: that use of the property is “(1) under a claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Webb v. Drewrey, 4 So. 3d 1078, 1082 (¶12) (Miss. Ct. App. 2009). “The person claiming the possession has the burden of proving each of these elements by clear and convincing evidence.” Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005) (citation omitted).

a. Roadway

¶14. First, the Joneses maintain that the chancery court erred in finding that their use of the 455-foot roadway was permissive—and therefore insufficient to satisfy the hostility requirement of adverse possession or a prescriptive easement—on the basis that the Pruitts had given them verbal permission to use the roadway. In support of their argument, the Joneses cite this Court’s decision in Delancey v. Mallette, 912 So. 2d 483, 489 (¶17) (Miss. Ct. App. 2005), in which we held that “[w]hen a use of the lands of another for roadway purposes has been open, visible, continuous and unmolested since some point in time anterior to the aged inhabitants of the community, such use will be presumed to have originated adversely.” (Quotations omitted). Further, the Joneses argue that “[r]equiring a litigant who is attempting to establish adverse possession or a prescriptive easement to prove that there was no permission for use would be unreasonable. The law typically frowns upon requiring a party to prove a negative averment.” Morris, 792 So. 2d at 284 (¶9).

¶15. In response, the Pruitts contend that one of the most basic principles in establishing adverse possession or a prescriptive easement is that the use must be hostile, and that “permissive use by the possessor of the property in question defeats the claim of adverse possession.” Ellison v. Meek, 820 So. 2d 730, 735 (¶15) (Miss. Ct. App. 2002) (citation omitted). In support of their argument, the Pruitts cite the testimony at trial that the Pruitts and Joneses had a friendly relationship up until this dispute. The Pruitts further argue that the fact that Sidney kept the gate locked is consistent with Bocee’s testimony at trial that she allowed him to cross into her land as long as he watched out for her property. Additionally, the Pruitts argue that the fact that Sidney never gave Bocee a key is irrelevant, as Sidney, himself, admitted that the Pruitts did not need a key to access the Joneses’ property.

¶16. This Court held in Cleveland v. Killen, 966 So. 2d 848, 851 (¶11) (Miss. Ct. App. 2007):

As a general rule, permissive possession of lands, even if long continued, does not confer title in the person in permissive possession until a positive assertion of a right hostile to the owner has been made known to him. If there was never a request or a grant of permission to use the land, however, the use would not be permissive, but would be adverse. It is a fact question for a chancellor to determine whether a use is prescriptive or permissive.

(Internal citations and quotations omitted). Furthermore, we reiterated:

Use of property by permission does not evolve into a hostile or adverse use until the permission ends. The time period for obtaining adverse possession or a prescriptive easement, when express or implied permission is previously given, does not begin to run until some form of objection to the use is made by the landowner.

Id. at 852 (¶15).

¶17. Chancellor Harvey-Goree, in her order, found that “all the testimony revealed that the use [of the roadway] was peaceable and permissive.” Chancellor Clark made similar findings in his order on the Joneses’ motion for reconsideration or for a new trial, and affirmed Chancellor Harvey-Goree’s holding with respect to the roadway. We affirm. The record is void of any evidence suggesting that the Joneses’ use of the roadway was anything but peaceful. Furthermore, Irozenell even testified at trial that she never sought to bar the Joneses from using the roadway; rather, she merely sought to have them remove their lock from the gate on the roadway. As such, the Joneses have failed to establish that their use of the roadway was hostile, and their claim for adverse possession or a prescriptive easement thereto is unsuccessful.

That language in the statute, ” … in whatever way such occupancy may have commenced or continued … ,” simply does not embrace occupancy that was commenced or continued by permission because it is not hostile or adverse.

Here the Pruitts gave the Joneses permission to be on the property. The same result would obtain if the occupancy were commenced pursuant to a lease. Both Judge Mason and I have had adverse possession cases involving leases.

Another important point to leave with is that the elements of adverse possession must all be proven by clear and convincing evidence in order to establish a prescriptive easement.


Partition and Survivorship

November 13, 2017 § Leave a comment

Does the filing of a partition suit convert a joint tenancy with right of survivorship into a tenancy in common?

Richard Turner and Brenda Seymour purchased a home together in 1995. The deed recited that they held the property as “joint tenants with express right of survivorship, and not as tenants in common.”

In early 2011, Brenda filed a complaint to partite the property per MCA 11-21-3, which allows partition between joint tenants. Brenda died in November, 2012, and her estate was substituted as plaintiff. The chancellor ruled at a hearing in February, 2016, that the filing of the partition suit did not terminate the joint tenancy with right of survivorship, and that, therefore, Richard became sole owner of the property by survivorship after Brenda’s death. The Administrator of Brenda’s estate appealed.

In Seymour v. Turner, decided October 3, 2017, the COA affirmed. Judge Irving’s opinion is informative on joint tenancy and tenancy in common, and the effect a partition action has on them:

¶6. Joshua points out that four unities—time, title, interest, and possession—must be present in a joint tenancy, and if one of the four unities is eliminated or terminated, the joint tenancy defaults into a tenancy in common. He argues that when Brenda filed the lawsuit on February 3, 2011, the filing terminated the joint tenancy existing between the parties and rendered it a tenancy in common, because the unity of possession had been severed. “Unity of possession” means that each joint tenant must have an undivided share in the property. See Wilder v. Currie, 231 Miss. 461, 474, 95 So. 2d 563, 566 (1957). He contends that that was no longer the case upon the filing of the petition to partite, as once the partition suit was filed, Brenda was requesting either a division in kind or a division by sale. Consequently, he argues that the joint tenancy was transformed into a tenancy in common, which is not accompanied by a right of survivorship. Therefore, according to him, Brenda’s death did
nothing to deprive her estate of its ownership interest in the property.

¶7. We do not disagree with Joshua’s contention that “[t]here must be unity of title, time, interest[,] and possession in a joint tenancy.” Thornhill v. Chapman, 748 So. 2d 819, 828 (¶30) (Miss. Ct. App. 1999). The question here is, did the joint tenancy convert to a tenancy in common at the time that Brenda filed her suit to partite the property, vesting her interest in the property and eliminating the right-of-survivorship provision? We find that it did not. This Court has held:

[T]he distinguishing characteristic of a joint tenancy is the right of survivorship. By virtue of survivorship, the property descends outside of
probate from the deceased joint tenant to the surviving joint tenant. The requirements for the creation of a joint tenancy with right of survivorship in land are governed by statute. Ownership of the whole and then taking the whole by survivorship are the outstanding features of owning property as joint tenants. The decedent’s share does not have to pass to the survivor because the survivor already owns the whole. The usefulness of the joint tenancy as one property-law expert explained is that it serves as a “poor man’s probate.” With the above said about joint tenancy and its feature of survivorship, one point becomes clear about this case: [Carolyn] Jones owned the whole along
with [Anthony] Graphia while they were joint owners. However, when Graphia filed to partite the property, as joint tenants are allowed to do, then Jones’s interest was subject to division by the chancellor. Prior to the chancery proceeding, Jones enjoyed the ownership of the whole. Jones lost this enjoyment when Graphia, her joint tenant, filed for partition. Had Graphia died, Jones, as the only other joint owner, would have owned the whole by herself. But since there was no death, the joint tenants had to give testimony during the partition hearing concerning their contributions to buying the house.

Jones [v. Graphia], 95 So. 3d at 753-54 (¶¶7-8) [(Miss. App. 2012)] (emphasis added) (footnote and citations omitted). Appropriately, the court in Jones ruled that upon the death of one joint tenant, the right of survivorship automatically transfers the whole property to the surviving joint tenant.

¶8. Joshua, in an attempt to distinguish Jones, argues that “[i]f Jones enjoyed ownership of the whole prior to the proceeding and lost this enjoyment when Graphia filed, then her death afterward would be at a time after she lost this enjoyment.” We disagree. The filing of Brenda’s complaint had no effect on the status of the property as a joint tenancy. At that point, no rights had been lost, but became merely subject to loss depending on the trial and the chancellor’s ultimate ruling. If Joshua’s analysis were the rule of law, all a party would have to do is file a complaint to partite to convert the property from a joint tenancy to a tenancy in common and defeat the right of survivorship, effectively rendering the court’s ultimate disposition of the case futile.

¶9. Although merely persuasive, the Michigan Supreme Court addressed this very issue in Jackson v. Estate of Green, 771 N.W.2d 675, 677 (Mich. 2009), as follows:

A party can sever a joint tenancy by compelling a partition. Until an order of partition has been entered, however, a partition has not been compelled and, thus, the joint tenancy has not been severed. See Anno: What acts by one or more of joint tenants will sever or terminate the tenancy . . . (explaining that “[i]t is not the filing of the partition action which terminates the joint tenancy, but only the judgment in such action which has that effect”).

Indeed, the universal rule in the United States is that a pending suit for partition does not survive the death of one of the joint tenants. See Heintz v. Hudkins, 824 S.W.2d 139, 142-143 (Mo. [Ct.] App. 1992), and cases cited therein. This rule is based on two related concepts: First, the theory of survivorship—that at the moment of death, ownership vests exclusively in the surviving joint tenant or tenants—and second, the doctrine that severance of the joint tenancy does not occur until the partition suit reaches final judgment.

For clarity, at the time that Brenda filed her complaint, the joint tenancy was still intact, and when she died, the property automatically transferred to Richard through the right of survivorship. There had been no final order issued at the time of her death, so the tenancy was never severed.

Nothing earth-shaking here. Filing a partition suit will not convert joint tenancy to tenancy in common, but a partition judgment will.

Life Estate with Right to Convey Fee Simple

September 12, 2017 § Leave a comment

May a person convey property by warranty deed to another, reserving both a life estate and the right to convey the property as if he were fee simple owner?

In 1973, Gilbert Lum executed a warranty deed conveying a 40-acre tract to his daughter, Lucille Crotwell. The deed included the following language:

“Grantor, however, does hereby expressly RESERVE unto himself a life estate in the foregoing lands coupled with a full and absolute disposition to be exercised by him as though he were the fee simple owner thereof … also RESERVING unto himself all mineral interest owned by him in said lands for his lifetime.”

In 1998, Lum conveyed one acre of the tract to Prestage by warranty deed, subject to his life estate for mineral interests. Prestage in turn conveyed the property to himself and his wife as tenants by the entirety. The couple executed a deed of trust which, after mesne assignments, was foreclosed on in August, 2011, and purchased by T&W Homes.

In December, 2011, the Crotwells filed a complaint to confirm title, remove cloud, and for ejectment. The special chancellor granted summary judgment that Lum had reserved a life estate only, and that his reservation of the right to reconvey fee simple title was “an illegal and void restraint upon alienation and repugnant to the granting clause of the deed. T&W filed an interlocutory appeal.

In T&W Homes v. Crotwell, decided August 24, 2017, the MSSC affirmed. Justice Randolph wrote for the 7-2 majority:

¶7. T&W argues that deeds containing reservations of life estates with power to reconvey fee simple title are recognized in other states. Each case cited by T&W is not only foreign to Mississippi law, but is factually distinguishable. … the deed at issue in the case sub judice effected a then-present conveyance by general warranty deed of real property owned by Lum. After acknowledging receipt of valuable consideration—thus taking this case outside the realm of inter vivos and testamentary gifts—Lum“[c]onvey[ed] and warrant[ed]” the forty acres described in the deed to Crotwell. The deed was signed, delivered, notarized, and filed—putting the world on notice of the transaction. Crotwell was the grantee identified in the deed. She was described in the deed as a contingent remainderman, as posited by the dissent. See Diss. Op. at ¶ 20.6 The words  “remainder” or “remainderman” are not in the deed sub judice. Contra Jamieson, 912 S.W.2d at 604-05.

¶8. …  [Footnotes omitted] The Lum-Crotwell deed reads that consideration was exchanged. On his oath, Lum acknowledged receipt of consideration in the notarized deed, rendering [a Maryland case] inapposite and unpersuasive.

¶9. Finally, T&W asks this Court to consider Kyle v. Wood, 86 So. 2d 881 (Miss. 1956). While Kyle remains good law for the principles of wills and testaments, it offers no guidance to today’s case. [Fn omitted]

¶10. In Kyle, J.A. Wood’s 1948 will contained the following provision:

I will and give all my property of every kind wherever located to my beloved wife, Mrs. Molly Wood, to have [and] to hold during her lifetime to use, sell and dispose of as she sees fit; and at her death, then such property left to my said wife by me is to be given to my nephew, by marriage, Arthur Kyle.

Id. at 882. J.A. Wood died in 1952. Id. Later that year, Molly conveyed the property to another. [Fn omitted] After her death, [Fn omitted] nephew Kyle filed suit against her grantees, complaining that the grant of power in J.A. Wood’s will to dispose was invalid. Id. at 882-83. This Court found Molly’s conveyance valid:

It thus appears that the rule is well settled by our own decisions, that where a testator gives an estate for life only, with the added power to the life tenant to convey the estate absolutely, the life tenant may defeat the estate of the remainderman under the will by the exercise of the power of disposal during his lifetime.

Id. at 885.

¶11. Today’s case is governed by the law of deeds, not the law of wills and testaments. [Fn omitted] To write a learned treatise on each subject is not the endeavor of this opinion, which would be the result were we to discuss exhaustively the voluminous distinctions between these intricate and nuanced bodies of law. Suffice to say, we offer only a smattering of distinguishing features. A grantor of a deed must deliver it before it becomes effective. [Fn omitted] On the other hand, to convey real property by will, the testator devises [Fn omitted] the real property upon death. And while wills are revocable by the testator at any time before death, a warranty deed for consideration (no matter how slight) is irrevocable between the parties once executed—and once filed, is valid against the world. The rule of Kyle affects testators of wills, not grantors in deeds.

¶12. The provisions in Wood’s will and Lum’s deed also differ. Wood left his wife a life estate in his property with the power to dispose. Lum, however, did not deed his daughter a life estate with the power to dispose, but rather conveyed the property by a general warranty deed to his daughter in fee and reserved unto himself a life estate. The provisions of Wood’s will were testamentary gifts. His nephew Kyle was a mere remainderman. The Lum-Crotwell deed was not a gift; it was a completed transfer or conveyance of real property with no reference to a contingent remainder. Crotwell was Lum’s grantee. T&W’s attempt to use testamentary law to settle a deed dispute is no less repugnant than the contested language in the deed before us.

¶13. Unlike the cases cited by T&W, the deed from Lum to Crotwell was not a future gift. It was not an enhanced life estate with potential remaindermen. The deed effected a present conveyance, consideration of which was acknowledged in the deed. Lum “convey[ed] and
warrant[ed]” the property to Crotwell. And as the chancellor noted, “warrant” conveys a statutorily defined meaning. See Miss. Code Ann. § 89-1-33 (Rev. 2011) (“The word “warrant” without restrictive words in a conveyance shall have the effect of embracing all of the five (5) covenants known to common law, to wit: seizin, power to sell, freedom from incumbrance, quiet enjoyment and warranty of title.”). The warranty deed contained no restriction on the warranty. Thus any attempt to reserve the power to reconvey, or convey again, fee simple title is repugnant to the grant of the warranty, which included all of the aforementioned covenants, as found by the learned chancellor.

¶14. A deed case directly on point which validates the chancellor’s decision is Dukes v. Crumpton, 103 So. 2d 385, 386 (Miss. 1958). The deed from Dukes to Crumpton contained the following provision: “Grantor or his successor reserve all rights of sale and management.” This Court held that such a provision “is an illegal and void restraint upon alienation and repugnant to the granting clause of the deed.” Id. at 388. T&W attempts to distinguish Dukes, arguing that while the reservation in Dukes was perpetual, the one from Lum to Crotwell terminated with the life estate. However, the shortened life of the reservation does not render an otherwise repugnant clause valid. The fact remains that a present conveyance, for which sufficient consideration was duly acknowledged, was executed, subject only to a life estate. That conveyance carried with it the five covenants that attached to the warranty of the deed. Because the warranty was without restriction, any reservation of the right of the grantor to sell fee simple title to property already conveyed was repugnant to the covenant of the power to sell included in the grant and warranty to Crotwell. Pursuant to the deed, Crotwell acquired ownership of the property upon delivery of the deed—March 13, 1973. Lum could not subsequently convey to Prestage property he no longer owned.

¶15. The dissent is correct that, when interpreting deeds, we look to the language employed in the deed to determine and effectuate the intent of the parties. [Fn omitted] Before making an omniscient declaration of the parties’ intent, the dissent contorts and amends the “plain language of the deed” by asserting (1) that “Lum’s deed conveyed to Lucille no present interest in the property,” (2) that it instead “provided her a contingent remainder,” and (3) that it “clearly stated that title to the property in fee simple would vest in Lucille only upon Lum’s death provided he had not otherwise conveyed the property during his lifetime.” Diss. Op. at ¶ 20. Yet none of these conclusions is supported by the words of the deed. The
language ofthe deed effectuates a present conveyance: “I, Gilbert Lum, [address] convey and warrant to Lucille Lum Crotwell [address]” the described forty acres (emphasis added). The deed recites and acknowledges receipt of consideration, and Lum swore it was delivered. Nowhere in the deed does it describe Crotwell’s interest as a contingent remainder. Nor did Lum transfer, grant, or convey a life estate. He conveyed the described property to Crotwell while reserving unto himself a life estate. There were no words of inheritance in the deed, either in the warranty portion or following the reservation to himself. Upon his death, his life interest dissolved. Had Lum conveyed to himself a life estate with the right to dispose of the property, remainder to Crotwell (as the dissent would characterize the deed before us), the dissent’s interpretation of his intent would hold water. [Fn omitted] But such is not the case. [Emphasis in original]

¶16. We agree with the chancellor that Lum retained an ownership interest in the property—his life estate—which he retained the right to sell during his lifetime. But rather than “fail[ing] to recognize a contingent remainder,” [Fn omitted] we restrict our analysis to the words
of the deed and decline to create a contingent remainder when one is not contained therein.

Pardon the truncated version of the opinion. I was trying to capture the gist of it for you. You can read the original for your own edification if you need it to argue. The footnotes omitted above by themselves would make a fine opinion in their own right.

One trivial quibble: deeds are usually acknowledged, not sworn to. There is a difference between the two actions, as I have explained previously. At a couple of points in the opinion, mention is made that Lum swore to delivery and other averments of the deed. The actual language of the deed is not included with the opinion, so we readers do not know whether the deed was sworn or acknowledged. My guess, though, is that it was merely acknowledged because that is how deeds are executed, per MCA 89-3-1, et seq.

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.

A Ticking Time Bomb Post-Divorce?

August 15, 2017 § 4 Comments

We’ve all seen literally hundreds of divorce agreements that include language that goes something like this:

Husband shall have exclusive use, occupancy and possession of the former marital residence, and he shall be solely responsible to pay in due course and keep current the mortgage debt, taxes, hazard insurance, and maintenance expenses of the property, and to indemnify Wife and hold her harmless therefor. The former marital residence shall be sold not later than one year from the date of this agreement, and the proceeds shall be divided equally between the parties, after the expenses of sale are paid. If the property has not been sold to a willing and able purchaser within the time stated …

Let’s stop right there. Most marital residences nowadays are in joint tenancy with right of survivorship (JTWROS). If one tenant predeceases the other, the survivor owns the property outright. So, in the example above, if Husband predeceases Wife before the property is sold, what is supposed to be done?

Does Wife own it outright, with no claim by Husband’s estate to any part of the equity? I think Wife would have a good argument that this is the result that they intended because they both well knew how survivorship operates, and the absence of any language to the contrary connotes their intent to follow its usual operation.

Or is Wife obligated to sell and pay Husband’s estate his share of the equity? Husband’s estate would argue the clear intent of the parties to divide the equity, and that Wife would be unjustly enriched by an opposite result.

The agreement doesn’t tell us what to do. What will happen is that someone will file suit, discovery will be had, a trial will ensue, and an appeal may be taken, and after several years and a basketful of money, the matter will be decided by others rather than the original parties.

It seems to me that this could be avoided one of two ways:

One, language could be added to address specifically the eventuality of survivorship.

Two, and in my opinion better, the parties could agree to re-convey the property to themselves as cotenants.

Whatever solution you choose, this is another among many examples of how a little thought and effort can save your clients from an unanticipated and unwanted eventuality.

Note that this applies only to JTWROS. If the parties own the property as tenants by the entirety (which is becoming more prevalent among professionals, due to the shelter it provides against judgment creditors), divorce converts it to tenancy in common.

Post-Publication Note:

As you can see from the comments, my statement above that tenancy by the entirety is converted by divorce to tenancy in common is incorrect. The MSSC in 1976 held that divorce converts entirety to joint tenancy with right of survivorship. Shepherd v. Shepherd, 336 So.2d 497, 499 (Miss. 1976). Mississippi is one of the only states that so holds; imagine that.

Thanks to the commenters and Attorney Leonard Cobb.

The Testamentary Contract

June 28, 2017 § Leave a comment

When is a contract really a will?

That was the question before the COA in the case of Estate of Greer: Oakes v. Ball, about which I posted a little over a year ago at the link. In that case, Greer had included this provision in a lease with the Nunnerys:

In the event of the death of the Lessor, this lease agreement shall not terminate, rather the rights and limitations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder.

When the case went to trial, the chancellor concluded that the provision was merely a transfer of the Lessor’s interest, and was not testamentary.

On appeal, the COA reversed, holding that the provision was, indeed, testamentary in nature and, therefore, was unenforceable because it did not meet the requirements of a testamentary instrument such as subscription and being witnessed by two witnesses. The COA’s decision is at this link.

The MSSC granted cert., and on June 1, 2017, affirmed the COA. You can read the court’s opinion at this link; it includes so many footnotes that I simply do not have time to reformat to accommodate all of them.

The important point from this case is that, if the grantee’s right will vest only upon the death of the grantee, then the instrument is is testamentary and must meet the formal requirements of a will in order to enforceable according to its terms.

The court rejected the argument that Ball could validly enforce the contract as a third-party beneficiary.

Justices Kitchens, King, and Chamberlin would have distinguished the case from prior case law on the basis that this one involved a lease contract as opposed to a deed. They make several other compelling arguments that you might find helpful when dealing with similar issues.

Four Judges, and a Remand Makes Five

March 27, 2017 § 2 Comments

When Jon A. Swartzfager and Thomas R. Saul had a disagreement over the sale of some land, Saul filed suit in chancery court for breach of contract, equitable estoppel, and promissory estoppel.

The chancellor of the district recused, and the MSSC appointed Special Chancellor #1. That judge granted partial summary judgment and conducted some proceedings, in one of which he declared a written instrument to be a valid, enforceable contract. Before he got to a trial, however, Chancellor #2 unfortunately died.

Enter Chancellor #3. This time, the judge did set the case for trial, and it was heard on November 29, 2012, and January 25 and April 8, 2013. Before Chancellor #3 could render a final judgment, he, too, died.

The MSSC appointed Chancellor #4, who huddled with the attorneys and entered an order memorializing the parties’ agreement that he could review the existing record and render a decision. Chancellor #4 did just that, finding that Swartzfager had breached the contract, and awarding damages of more than $200,000, which included $79,098.81 in prejudgment interest. Swartzfager appealed.

In the case of Swartzfager v. Saul, decided February 16, 2017, the MSSC reversed in part and remanded. Essentially, the court affirmed everything but the award of prejudgment interest, and remanded for the chancellor to recompute damages without the prejudgment interest.

Only thing is, Chancellor #4 is now retired and is no longer sitting as a senior or special judge, so he will not be available to  deal with the case on remand.

Enter Chancellor #5. Stay tuned.

A few interesting points from the decision by Justice Maxwell:

  • Swartzfager argued that the MSSC should review the case de novo because Chancellor #4 based his decision on testimony before previously-assigned chancellors; he also urged that the previous chancellors’ findings should be given no deference. The court rejected that claim at ¶18 on the principle of judicial estoppel. The parties had agreed to follow that procedure, and he is precluded from taking a contrary position at a later stage of the case.
  • Another point pressed unsuccessfully by Swartzfager was that it was error for the chancellor to adopt Saul’s findings of fact and conclusions of law verbatim. The court disagreed, pointing out that the judge made his own findings, including adopting some findings of previous chancellors. I might add that even if the chancellor had wholly adopted Saul’s findings, it was not error for him to do so. You can read a post about the subject here.
  • The reversal on the issue of prejudgment interest came about because Saul had not included a prayer for that relief in his complaint, and so he was precluded from getting that relief per MRCP 8. The court noted that, since the reversal was based on the state of the pleadings, and not on the merits, it did not need to address whether the damages were liquidated, or if there were bad faith, which are two of the bases necessary to support an award of prejudgment interest.
  • There’s a lot of substance in this case that you might find useful, including: what it takes for a writing to be a contract; equitable estoppel; emotional distress damages arising out of a contract dispute; and assessment of attorney’s fees in absence of punitive damages.

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