Real Property | The Better Chancery Practice Blog

Prescription for an Easement

March 13, 2017 § 1 Comment

Mississippi is dotted with old churches that have fallen into disuse and even been abandoned as the congregation ages, moves away, and finds other associations. I posted about a typical example here only last month.

Some of the left-behind buildings are lovingly maintained by former members and family, but what keeps people involved with them in most cases is the church cemetery where ancestors and loved ones are interred.

Such was the case with Old Liberty Baptist Church, which had been established before 1854. In that year, Aaron Lott and his wife, Martha, deeded the 2 acres upon which the church had been built, and which included the adjacent cemetery, to the church’s “Committee of Arrangements.” The church later moved away, and the building was torn down, but the cemetery, which fronted on a public road, continued to be visited by people with an interest. Even so, there were only one or two burials there in the preceding 60-70 years. The cemetery was enclosed by a fence, with a gate that was accessible from the public road.

The Lott property, which surrounded the Old Liberty cemetery, descended to Johnnie Lott and his three daughters: Rita Deloach, Linda Douglas, and Cathy Grantham. After the daughters quitclaimed their interest to Johnnie, he later conveyed his interest to Cathy, reserving a life estate. “less and except 2 acres, more or less, comprising the cemetery.”

Johnnie Lott died in 2011, and in 2013, Cathy filed an instrument claiming that she controlled access to the cemetery. The Liberty Baptist Church formed an association to take responsibility for permanent maintenance, and the church deacons deeded its interest in the cemetery to trustees of the association for the purpose. The deed claimed a tract of 1.55 acres, as shown on an attached plat. Rita, sister of Cathy, participated in the process.

In the meantime, Cathy began locking the gate to the cemetery. After the lock had been cut off the gate seven times, Cathy’s husband removed the culvert and pushed dirt up blocking the gate.

Cathy filed suit, claiming that the cemetery property consisted of 1.25 acres, not the 1.55 acres claimed by the church. She claimed absolute authority and discretion in determining who, when, and how anyone should access the property. The association counterclaimed.

Following a trial, the chancellor granted the association title to the cemetery property by adverse possession, along with a prescriptive easement from the public road to the cemetery entrance. He also confirmed title in Cathy to certain other property in dispute. Cathy filed a R59 motion raising for the first time that she should be granted a prescriptive easement across the cemetery property, and a claim for slander of title. The chancellor overruled the motion, and Cathy appealed.

In Grantham v. Old Liberty Cemetery Association, decided February 21, 2017, the COA affirmed. On the issue of Cathy’s belated claim for a prescriptive easement, Judge Fair wrote for a unanimous court:

¶11. Grantham first argues she was entitled to a prescriptive easement across the Association’s property. “The evidentiary burden to establish a prescriptive easement is high.” King v. Gale, 166 So. 3d 589, 593 (¶20) (Miss. Ct. App. 2015). Grantham had to show by clear and convincing evidence she used the Cemetery tract to get to her property. Id. See Thornhill v. Caroline Hunt Tr. Estate, 594 So. 2d 1150, 1152 (Miss. 1992). Further, she had to prove her use was “(1) under 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.” Id. (citations omitted). We note that she did not assert any claim for an “easement of necessity” because she has significant access to a public roadway, and makes claim for a “non-exclusive” prescriptive easement, even though exclusivity is a required element of a prescriptive easement.

¶12. The chancellor notes pointedly that Grantham denied any claim to the Cemetery land itself, only asserting the location of boundaries and easements to it and arguing that the Cemetery occupied 1.25 of the 1.55 acres the Association claimed. And there was no evidence presented that Johnnie, from whom she derived her title, ever claimed any ownership of the Cemetery. In her appellate brief, she restates that she “has decided not to appeal the determination . . . that the fence lying south [of] the access road is the cemetery’s south boundary, but does appeal the denial of her ‘non-exclusive easement’ over the road to access her property.” Grantham had stated her father always fenced his property, and that the northern boundary of the property she inherited is also the southern boundary of the Cemetery. She also testified that he had a concrete pad poured to feed his cows and admitted that the concrete pad stopped just south of the fence in the very southeast corner of the fenced-in area of the disputed property. Occasionally, Johnnie let the cows out through the Cemetery gate. Prior to her father’s death, Grantham returned to the property once or twice a month and had little knowledge of what was going on while she was away.

¶13. A “prescriptive easement,” as noted above, is an easement obtained by adverse possession over another’s land. Like any other adverse possession claim, an owner’s permission to use the easement defeats a party’s claim. See Kendall v. May, 199 So. 3d 697, 700 (¶8) (Miss. Ct. App. 2016). The general public (or at the very least the descendants of those buried in the Cemetery) had entered the Cemetery without interference and with implied permission of the church for more than a century – until Grantham locked it and removed the culvert. Anyone who had ancestors buried in the Cemetery had the right to enter onto “family cemetery” property and visit an ancestor’s grave as well as to be buried in the Cemetery. Grantham, a direct descendant of Aaron Lott, specifically has such a right, with the same permission as any other descendant of an ancestor buried in the Cemetery, to drive across roads crossing Cemetery property. She has presented no evidence of any open, notorious, or exclusive occupancy of any portion of the Cemetery property for more than ten years, as determined by the chancellor. Consequently, she is entitled to no greater or lesser interest in an easement over parts of the Cemetery than any descendent of anyone buried there.

I brought this to your attention for several points:

In order to establish a prescriptive easement, it must be shown that the elements of adverse possession have been met as to the easement property. That in and of itself is a high bar. To make it even higher, the burden of proof is by clear and convincing evidence. This opinion is a good reminder of what must be shown.
To me, the chancellor was exceedingly generous to entertain Cathy’s claim for a prescriptive easement, raised as it was for the first time on a R59 motion. You simply do not get to reopen the case to raise new legal issues and claims on a R59 motion that could and should have been litigated at trial, unless there is newly discovered evidence that was unavailable at trial. The COA does not elaborate on the basis for the R59 motion, so we are in the dark as to what motivated it, but if it was simply to assert a new issue, it was out of bounds.
Likewise, at trial Cathy took the position that she asserted no interest in the cemetery property. She reversed that position in the R59 motion and asserted a claim for a prescriptive easement. That maneuver was barred by judicial estoppel, which holds that one may not take one position at one stage of the proceedings, and then take a contrary position at a later stage.
Finally, Cathy asked for a “non-exclusive easement” to the cemetery. That was really unnecessary, as Judge Fair pointed out, because she was entitled to access the property along with everyone else with ancestors buried there.

The COA also affirmed the chancellor’s dismissal of both parties’ slander of title claims.

Revenge of the Missing Link

February 14, 2017 § Leave a comment

“Heir property” is an often-heard term in Mississippi, used to describe the convoluted and sometimes impossibly complicated ownership of real property that has passed through several generations without administration of an estate or probate of a will.

Walter and Ressie Quinn inherited an interest in some property from Walter’s mother. Although most of the siblings quitclaimed their interests to the Quinns, one sibling quitclaimed her interest to Jessie and Arma Morton. The Quinns filed suit against Arma for partition of the property. They did not join Jessie.

When Arma filed her answer she did not include a defense of failure to join a necessary and indispensable party (R12(h)(2)).

The court ordered a sale of the property, which took place on the courthouse steps on September 29, 2014. When it came time to confirm the sale, Arma raised for the first time that the sale was invalid for failure to join Jessie as a party. So the Quinns filed an amended pleading adding Jessie as a party, and the Mortons waived process and filed an answer. At a final hearing, it was discussed that, although Jessie objected to a sale, he declined to testify.

Following court proceedings, the judge signed a judgment confirming the sale and finding that Jessie had failed to show that he had been prejudiced in any way by the sale. The judgment also found that Jessie had failed to show prejudice because Arma had failed to raise a R12(h)(2) defense. Arma and Jessie appealed.

In Morton v. Quinn, handed down December 13, 2016, the COA reversed and remanded. Judge James wrote for the majority:

¶10. Since the first issue is dispositive, we decline to address the other issue on appeal. “[T]he decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Ashmore v. Miss. Auth. on Educ. Television, 148 So. 3d 977, 983 (¶17) (Miss. 2014) (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss. 2003)). After the amended petition was filed, adding Jessie as a respondent, the sale was not vacated, and Jessie was not given a chance to meaningfully participate in the disposition of his property. Jessie favored a partition in kind rather than a sale, yet he was not afforded the opportunity to respond to the Quinns’ request for a judicial sale.

¶11. Mississippi Code Annotated section 11-21-11 (Rev. 2004) permits a judicial partition by sale only where: “[A] sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made.” At the hearing to confirm the judicial sale, the Quinns asserted that Jessie had to illustrate that the omission of his name as a respondent resulted in prejudice. The trial court afforded him with an opportunity to testify as to any prejudice that he may have incurred. Jessie declined to testify but asserted that he was prejudiced by the sale since he preferred a partition in kind. Moreover, the record shows that Jessie lived on the property, and that the sale would directly affect the location of his patio and other fixtures. Since the disposition of the land directly impacted Jessie’s rights to the subject property, the judicial sale should have been vacated.

¶12. In Shaw v. Shaw, 603 So. 2d 287, 294 (Miss. 1992), the Mississippi Supreme Court held, “While the question of joinder of an absent person generally must be timely raised in the trial court, an appellate court may consider the issue even though it was not initially raised below, and may do so sua sponte.” In the present case, the nonjoinder was raised, but it was not properly raised by the filing of a motion. However, Jessie did raise the matter at the hearing to confirm the sale, which sufficiently preserved the matter on appeal. “Rule 12(h)(2) of the Mississippi Rules of Civil Procedure requires [parties] to raise the issue of failure to join a necessary and indispensable party in the pleadings under [Mississippi ] Rule [of Civil Procedure] 7(a) or by motion for judgment on the pleadings or at the trial on the merits.” Marathon Asset Mgmt. LLC v. Otto, 977 So. 2d 1241, 1246 (¶14) (Miss. Ct. App. 2008).

¶13. The supreme court has noted that “parties whose rights are to be affected are entitled to be heard . . . . Furthermore, they must be notified in a manner and at a time that is meaningful.” Aldridge v. Aldridge, 527 So. 2d 96, 98 (Miss. 1988) (internal citations omitted). Jessie was not properly noticed or added as a respondent until a year after the matter was initiated. Once the Quinns filed their second amended petition for a judicial sale, naming Jessie as a respondent, the sale of the subject property should have been vacated and renoticed for a proper sale, involving all parties if Jessie’s in-kind partition did not materialize. Nevertheless, the court presumed that since Jessie and Arma were husband and wife, Jessie had knowledge of the actions regardless of his omission as a respondent in the matter. We find that presumption was in error.

Several lessons in this:

The COA has made clear in many cases, including this one, that the mere fact that you know about litigation does not confer jurisdiction over you.
When Jessie finally awoke and decided to participate, I guess he should have been more forceful in asserting his objection to the sale.
I would have affirmed, because after the amended complaint was filed Jessie was given the opportunity to object and even to testify in opposition to the sale at the confirmation hearing, but he declined. As a trial judge, one often wonders how far we have to go to accommodate people who simply will not protect themselves even when they have the means to do so.
When you have litigation involving “heir property,” jump through every hoop and go to extra trouble to discover and get process on everyone who has or claims to have an interest in the property. That extra attention may avoid big headaches later.

Squatter’s Rights = No Rights

February 9, 2017 § Leave a comment

In February, 2009, Acey Huey deeded property he owned in a subdivision to his daughter, Fillisa.

On August 7, 2009, Acey signed off on a document entitled, “Repairing and Renting Agreement.” Acey and his brother Tom were named in the document as “Landlords,” and Tom’s daughter, Tommie, was denominated as “Tenant,” of the same property that had been conveyed to Fillisa. The agreement, which was prepared by Tommie’s godmother, provided in part: Tommie would pay rent of $150 per month and repair the property at her sole expense; the Landlords could not raise her rent or evict her without cause; if forced to leave for any reason she would be reimbursed for the labor and material she expended on the property, and for moving expenses and “pain and suffering.”

Filisa did not become aware of the agreement until 2012. In June of that year, she sent Tommie notice to pay rent or vacate, demanding $400 a month in rent, plus a $400 security deposit.

On July 25, 2012, Filisa conveyed the property to LeMorris Strong.

On July 27, 2012, the 2009 “Repairing and Renting Agreement” was filed in the county’s lis pendens records, attached to a “Notice of Subordination, Attornment and Non-Disturbance Agreement.”

On August 14, 2012 Strong recorded his deed from Filisa.

In November, 2012, Strong made written demand for Tommie to cancel the lis pendens notice, including a form to do so, as well as a copy of Mississippi’s Litigation Accountability Act (LAA), MCA 11-55-5.

In 2013, after Tommie had vacated the property, Strong filed suit to remove clouds from and quiet title to the property. Tommie counterclaimed. The chancellor granted Strong the relief he requested, and dismissed Tommie’s counterclaim. She also awarded Strong $3,917.14 in attorney’s fees and costs, ruling that the filing of the lis pendens notice and refusal to withdraw it constituted a violation of the LAA.

In Huey v. Strong, decided December 13, 2016, the COA affirmed with a unanimous opinion by Judge Fair, James not participating.

You can read the opinion for yourself. The point I want to make here is that you need to stop and think before you leap. I don’t know who filed that lis pendens notice for Tommie, but I hope it was the godmother who prepared the original agreement, and not an attorney. When you file a lis pendens notice you may be slandering title unless what you have filed is true, accurate, and has a basis in law. Tommie had a chance to withdraw it but did not, which ended up costing her nearly $4,000 she does not have, judging from the recitation of facts in this case. Here the COA holds that filing a false lis pendens notice can be a violation of the LAA. Damages were relatively small in this case, but they could have been huge.

Years ago, as a young lawyer (and before there was an LAA), a breathless client demanded that I file a mechanic’s lien notice against a subdivision developer only to learn soon after that the client had misrepresented the facts to me, and wanted it done as a vendetta because the developer had elected to begin using another contractor. I notified the client that I was withdrawing the lien and he could file one or anything else in his own right, but that I was not going to participate. My bad for leaping before looking and demanding some documentation or proof of the claim. Had that lien notice botched a sale, I might have been on the hook with my client for damages.

An Object Lesson in Deed Draftsmanship

January 18, 2017 § 1 Comment

When Cynthia and M.L. Culley conveyed a 26.7-acre parcel of land to J.E. Fowler in 1969, the deed included the following language:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this fate by grantors herein in favor of the City of Jackson, Mississippi.

A dispute arose between Suzannah McGowan and Stephen and Rowena Carmody, with both claiming ownership of the property through the Culleys. The special chancellor granted a partial summary judgment concluding that the deed was unambiguous and did not convey the excepted property described above. The Carmodys appealed.

In Carmody v. McGowan, decided January 3, 2017, the COA affirmed, with the opinion by Judge Fair:

¶2. A court interpreting a deed follows the same process as it does with contracts. Conservatorship of Estate of Moor ex rel. Moor v. State, 46 So. 3d 849, 852 (¶12) (Miss. Ct. App. 2010). We begin by looking at the language of the instrument itself as contained within its “four corners.” Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990). “When an instrument’s substance is determined to be clear or unambiguous, the parties’ intent must be effectuated.” Id. “If the reviewing [c]ourt finds the terms of the contract to be ambiguous or subject to more than one interpretation, the case must be submitted to the trier of fact, and summary judgment is not appropriate.” Epperson v. SOUTHBank, 93 So.
3d 10, 17 (¶20) (Miss. 2012).

¶3. The deed at issue states that the Culleys “do hereby sell, convey and warrant unto J. E. Fowler the following described land and property lying and being situated in the First Judicial District of Hinds County, State of Mississippi, and being more particularly described as follows . . . .” This is followed by a single-spaced, indented description of a 26.7-acre tract, which concludes with the words:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this date by grantors herein in favor of the City of Jackson, Mississippi.

It is undisputed that this refers to the property now in dispute. The Carmodys point to what immediately follows the above-quoted language, where the deed is no longer indented and returns to double-spaced lines, and recites that:

The warranty of this conveyance is subject to an easement for street purposes, executed this date herein, in favor of the City of Jackson, Mississippi, which easement is for an extension of Riverwood Drive.

Several other preexisting easements are then excepted from the warranty, and the deed concludes normally with signatures and acknowledgment.

¶4. The Carmodys argue that the deed should be read as a whole. See, e.g., Cherokee Ins. v. Babin, 37 So. 3d 45, 48 (¶8) (Miss. 2010). That is undoubtedly true, but they present no real argument as to how the warranty exclusion conflicts with or alters the meaning of the explicit and unambiguous “less and except” exclusion from the conveyance. The Carmodys contend only that the “less and except” clause renders the warranty exclusion redundant and that there is no apparent reason the grantors would want to retain ownership of the disputed parcel while selling the land surrounding it. These arguments invoke familiar canons of contract construction, but they are applicable only where the deed is first shown to contain some ambiguity. Pursue Energy [Corp. v. Perkins], 558 So. 2d [349] at 352 [(Miss. 1990)]; 26A CJS Deeds § 180 (2011) (“Construction aids are available only to interpret ambiguity in the language of the instrument . . . and are not to be invoked to contradict the plain language of the deed.”).

¶5. The Carmodys do not explicitly argue that the deed is ambiguous – indeed, the word does not even appear in their briefs on appeal. “The mere fact that the parties disagree about the meaning of [an instrument] does not make [it] ambiguous as a matter of law.” Turner v. Terry, 799 So. 2d 25, 32 (¶17) (Miss. 2001). Nor are we “at liberty to infer intent contrary to that emanating from the text at issue,” as the words employed by the parties are “by far the best resource for ascertaining [their] intent.” Facilities Inc. v. Rogers-Usry Chevrolet Inc., 908 So. 2d 107, 111 (¶7) (Miss. 2005). Likewise, redundancies do not make a deed ambiguous. See, e.g., Thornton v. Ill. Founders Ins., 418 N.E.2d 744, 747 (Ill. 1981).

¶6. “An ambiguity is defined as a susceptibility to two reasonable interpretations.” Dalton v. Cellular S. Inc., 20 So. 3d 1227, 1232 (¶10) (Miss. 2009). We can see no reasonable interpretation of the deed, read in its entirety, that does not give effect to the plain and unambiguous qualification that the conveyance is “less and except” the disputed property.

¶7. We conclude that the trial court correctly found the deed to be unambiguous and that the disputed property was expressly excepted from the conveyance upon which the Carmodys’ claim depends. The chancery court therefore properly granted summary judgment to McGowan.

I think that what the Carmodys unsuccessfully were trying to articulate was the argument that one may not on the one hand exclude something from the conveyance while at the same time making the warranty of the conveyance subject to the thing excluded. Either: (1) the easement is excluded (“Less and except …”), and therefore is not conveyed; or (2) the subject property in its entirety is conveyed, but subject to the easement. I think they were trying to say that the two provisions are irreconcilable. And, they noted, why would Fowler have wanted to hang on to ownership of a little chunk of the tract that was subject to an easement? If all of that is what they were getting at, I think they had a good point.

But, as Judge Fair points out, Carmody’s argument was more along the lines that the two provisions were merely redundant, which gets us nowhere, because an instrument may have many redundant provisions and not be ambiguous.

At any rate, more careful draftsmanship would have avoided this swivet. Either exclude the easement as the special chancellor found here, or expressly include it and make the conveyance subject to it. A little thought into how the property should be conveyed can go a long way toward avoiding problems for your client and/or successors in interest down the line.

Adverse Possession Nuggets

November 14, 2016 § Leave a comment

If you’ve been a long-time reader, you will recognize that I tend to really like cases that elucidate what must be shown to make an adverse possession case. That’s because, for all the colorful language of the case law about “planting flags” and “unfurling banners,” it can be confoundedly difficult to translate that into what people do in real life.

The recent COA decision in Powell v. Meyer, handed down October 25, 2016, is one of those helpful cases. The facts are pretty typical of an adverse possession case. You can read them for yourself. I’ve extracted some nuggets for you that you might find useful next time you have a case like this.

¶18. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) defines adverse
possession as follows:

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 complete title . . . .

We apply a six-part test for determining whether adverse possession has occurred: “for possession to be adverse it must be (1) under 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.” Walker [v. Murphree], 722 So. 2d [1277] at 1281 (¶16). The burden was on Meyer to prove each element by clear and convincing evidence. Ellison v. Meek, 820 So. 2d 730, 734 (¶13) (Miss. Ct. App. 2002).
¶19. … In regard to the actual or hostile element, “[t]he actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill v. Johnson, 27 So. 3d 426, 431 (¶23) (Miss. Ct. App. 2009). Possession is hostile when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed. Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952). … “[T]he mere existence of a fence,” without more, “does not establish that the fence is the
accepted boundary between the properties.” Ellison, 820 So. 2d at 735 (¶16). …
¶20. In regard to the open, notorious, and visible element, “[t]he mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct. App. 2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. …

¶21. … To reiterate, even if a party is mistaken as to the calls of his deed, “if he has occupied the land for the statutory period under the claim that it was his own and was embraced within the calls of his deed, he is entitled to recover on the ground of adverse possession[.]” Alexander [v. Hyland], 214 Miss. [348] at 357, 58 So. 2d [826] at 829 [(19520]. …

You might want to file those away for future use.

Here the chancellor was affirmed because there was clear and convincing evidence to support each and every one of the six required elements. That’s good lawyering. Not only do you have to have the facts to work with; you also have to make sure that you make a good enough record with sufficient facts to support the judge’s findings.

The Good Neighbor Policy

September 19, 2016 § Leave a comment

No, this post is not about the Franklin Roosevelt administration’s policy toward Latin America. It’s about real-life neighbors and how we all would like to see them treat one another.

The Kendall, King, Mullen, and Greenwood families (we’ll call them “the Kendalls”) owned land traversed by Coleman Road, which was at one time a public road, but which had been abandoned by the county board of supervisors. After it was abandoned, the Kendalls allowed Kirsh and Gayle Mullen May to use the road. But that stopped in 2013, when they prevented the Mays from doing so.

The Mays filed suit for a prescriptive easement. After a trial, the chancellor concluded that they had failed to meet the burden of proving what amounts to adverse possession of the right-of-way, and so he denied their claim. In his ruling, the chancellor ordered the Kendalls to provide the Mays with a key to the gate blocking the road, and to allow them use of the road, notwithstanding his negative ruling on the prescriptive easement relief. He said:

While this Court has determined as set forth above that [the Mays] have no right of ownership in Coleman Road, Chancery Court is a court of equity [and] can require the parties in a legal proceeding such as this to do that which is reasonable and fair. Defendants in their final brief in this matter cited Patterson v. Harris, 239 Miss. 774, 785, 125 So. 2d 545, 550 (1960) wherein it was stated: “The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights.” Defendants allowing [the Mays] the right to use Coleman Road in the past was the right and neighborly thing to do and this use did nothing to harm Defendants’ ownership in Coleman Road.

The Kendalls, having won the battle but lost the war, appealed. Their sole issue on appeal was, in essence: Huh? Can he do that?

In Kendall, et al. v. May, decided August 16, 2016, the COA predictably reversed and rendered. Judge Wilson wrote for a somewhat unanimous court, Judge James concurring “in part without separate written opinion”:

¶9. Thus, the only issue in this appeal is whether, despite the Mays’ inability to establish a prescriptive easement, the chancellor had authority to order the defendants to give the Mays a key to the gate and to allow them to use the road. In granting that relief to the Mays, the chancellor cited Patterson v. Harris, 239 Miss. 774, 125 So. 2d 545 (1960). In Patterson, Harris claimed a prescriptive easement based on a lengthy period of use of a private road over the Pattersons’ land. See id. at 784-85, 125 So. 2d at 550. The Court held that he was not entitled to an easement because his use had been permissive, not hostile or adverse. See id. at 787-88, 125 So. 2d at 551-52. The Court reasoned:

The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights. It is only when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the landowner is called upon “to go to law” to protect his rights.

Id. at 785-86, 125 So. 2d at 550 (quoting Weaver v. Pitts, 133 S.E. 2, 3 (N.C. 1926)). Therefore, “[i]t is a recognized rule of law that where the use of a private way by a neighbor is by the expressed or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right.” Id. at 786, 125 So. 2d at 550.

¶10. Thus, the law does not authorize courts to compel “acts of neighborly courtesy” in particular cases, which is essentially what the chancellor did here. Rather, it encourages voluntary acts of courtesy among neighbors by making clear that such courtesies will not result in a forfeiture of property rights. The rationale is that if permissive use were allowed to “ripen into a prescriptive right,” neighbors would be far less willing to permit one another to use their lands to begin with. In the present case, this underlying policy requires us to uphold the defendants’ right to refuse to allow the Mays to continue to cross their lands. The chancellor’s order of a right of access and a key to the gate would discourage neighborly courtesy in the same way as a prescriptive easement.

¶11. In short, the law grants the defendants a right to exclude others, including the Mays, from their property. Accordingly, the chancellor had no equitable authority to order them to give the Mays a key and access to their property.We therefore reverse and render judgment in favor of the defendants.

To their credit, the Mays filed a motion “to confess the appeal,” in which they stated that they had decided not to cross-appeal the denial of the prescriptive easement, and they acknowledged that they could find no case law or statutory authority to support the chancellor’s order that they be given a key and access over the road. (¶6) The MSSC left it up to the COA to decide what to do with the motion, which required the parties to brief the uncontested issue, and the COA to rule on it. Kudos for professionalism to counsel for the Mays. Head-scratch to the MSSC.

By Their Deeds Ye Shall Know Them

August 29, 2016 § Leave a comment

In a series of transactions between 1993 and 1998, Mary Frances Wright gained ownership of some 18 acres of land from her mother, Annie Dora Conley, subject to Conley’s life estate in a portion of the property. The transactions effectively excluded Wright’s siblings from ownership.

Conley died in 2000, and Wright probated the estate as Administrator. Notice to creditors was published in 2002, and the estate was finally closed in 2004.

It was not until 2011 that Wright’s brother, Ulysses Conley, claimed that he first discovered the deeds conveying ownership to Wright. In 2013, he filed suit alleging that the transactions were illegal, asking that they be set aside.

Wright denied his claims and filed a motion to dismiss on the ground that Conley’s claims were barred by the statute of limitations (SOL).Following a hearing, the chancellor ruled that Conley’s claims were barred by the general three-year SOL. Conley appealed, claiming that the 10-year SOL regarding recovery of property governed, and not the three-year general statute.In Conley v. Wright, decided May 31, 2016, the COA affirmed. Judge Ishee wrote for the court:

¶8. Conley’s first argument on appeal centers around the chancery court’s application of the statute of limitations. In its order, the chancery court cited McWilliams v. McWilliams, 970 So. 2d 200 (Miss. 2007), for its proposition that the three-year general statute of limitations bars Conley’s claim. Conley is correct in his assertion that the Mississippi Supreme Court overruled McWilliams with respect to the applicable statute of limitations regarding recovery of land in Lott v. Saulters, 133 So. 3d 794, 799-801 (¶¶7-13) (Miss. 2014). In Lott, the supreme court clarified that since our Legislature has not created a statute shortening the limitations period for claims regarding land recovery in equity, the governing statute remains Mississippi Code Annotated section 15-1-9 (Rev. 2012). Id. at 799 (¶9). Section 15-1-9 provides for a ten-year statute of limitations for land recovery in equity through explicit reference to Mississippi Code Annotated section 15-1-7 (Rev. 2012), which states: “A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued . . . .” Hence, the chancery court did err in its inference that a three year statute of limitations was applicable.

¶9. However, this error was harmless. As noted by the chancery court, the most recently dated deed associated with the transfer of ownership of the property was filed and became a public record in November 1998. All three of the deeds that conveyed ownership of the property to Wright occurred between August and November of 1998 – almost fifteen years from the filing of Conley’s complaint. Nonetheless, the supreme court has noted that when a life estate is tied to property, the statute of limitations does not begin to run on a successive possessor’s claim to the property until the person holding the life estate has passed. In re Estate of Reid, 825 So 2d 1, 7 (¶¶18-19) (Miss. 2002) (citation omitted). Hence, Conley’s right to bring an action to recover the property accrued at the time Annie died in 2000.

¶10. Even assuming there was concealed fraud in the property’s conveyance through the 1998 deeds, the probate of Annie’s estate provided a review of the deeds specifically. Hence, Conley would have been charged with the duty of discovering the alleged fraud during this time through reasonable diligence. If nothing else, the 2002 publishing of a notice to creditors regarding the estate’s ownership was a glaring opportunity for Wright’s alleged fraudulent interest in the property to have come to Conley’s attention.

¶11. The exercise of reasonable diligence would have revealed any purported inconsistencies in the property’s ownership by 2002 at the very latest. We find no applicable exception to the statute of limitations at play here. This issue is without merit.

¶12. Finally, we address Conley’s assertion that he is due relief in the form of a constructive trust. After reviewing the record in this case, we find no mention of the issue of a constructive trust having been presented to the chancery court. It appears that Conley’s argument of a constructive trust has been presented for the first time on appeal to this Court. It is well settled “that issues not raised at trial cannot be raised on appeal.” Southern v. Miss. State Hosp., 853 So. 2d 1212, 1215 (¶5) (Miss. 2003) (citation omitted). “A trial judge cannot be put in error on a matter not presented to him.” Id. at 1214 (¶5) (citation omitted). Accordingly, we are without authority to address Conley’s argument regarding a constructive trust.

CONCLUSION

¶13. We acknowledge that the chancery court erred in its reference to the three-year statute of limitations. Indeed, the ten-year statute of limitations was the proper statute of limitations to be applied here. However, such an error was harmless considering the length of time from the accrual of Conley’s right to file the action and the date the action was filed. The deeds conveying the property to Wright became public record, at the latest, in November 1998. After Annie’s death in 2000, her estate was probated and a notice to creditors was published in 2002, thereby providing Conley with ample opportunity to take notice of Wright’s alleged fraudulent interest in the property had he exercised reasonable diligence. While Conley presents numerous explanations for the fifteen-year delay in filing suit, these explanations do not negate that he and his siblings had a duty to exercise reasonable diligence to discover any alleged error regarding the property’s ownership. We cannot find that the chancery court was erroneous in dismissing the action as barred by a statute of limitations. As we are without authority to review Conley’s argument regarding a constructive trust, we rest on our prior conclusions and uphold the judgment of the chancery court dismissing Conley’s action as time-barred.

Points to ponder:

In many districts, chancellors do not have staff attorneys to do research for them. They have to rely on the attorneys to furnish authority. Time to review and double-check that authority is at a premium, what with other trials, dockets in other counties in the district, administrative matters, and personal life (to which even chancellors are entitled). If you expect the chancellor to make an unassailable ruling, provide him or her with accurate and on-point, valid authority.
This case highlights just how effectively an estate can operate as a seal against later litigation. An inventory showing that the estate had no ownership interest in the 18 acres would have been pretty conclusive against Ulysses when he joined in the petition to close the estate. That’s one reason why I urge lawyers to do an inventory even when it has been waived in the will: it provides an additional layer of documentation of the estate assets that is hard, if not impossible, to assail once the estate is closed.

Rules of Reformation

March 15, 2016 § Leave a comment

A 1979 deed included the language that “Grantee herein retains all mineral rights on said land and property.”

After Michael and Amy Ward had entered into a gas, oil, and mineral lease in 2007, they discovered to their chagrin that the royalties they had contracted for were not being paid to them, but rather to Carolyn Harrell, a successor in title to the grantor of the 1979 deed. The Wards were successors in title to the grantees.

The Wards filed suit to quiet and confirm and remove cloud from title, and to recover the payments made to Harrell. Harrell counterclaimed to remove cloud, and to cancel the Wards’ mineral lease.

At trial, the Wards argued that the 1979 deed must be construed according to its plain meaning. Harrell countered that the 1979 deed should be reformed to state that Grantor retains, due to mutual mistake and scrivener’s error. The chancellor applied the three-tiered rules of contract construction of an ambiguous instrument set out in Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352-53 (Miss. 1990). The Wards appealed.

In Ward v. Harrell, handed down February 23, 2016, the COA affirmed the chancellor, holding that, although the trial court applied the wrong legal standard, it reached the correct result. Judge Lee writing for the court, distinguished between contract construction and reformation:

¶13. In reforming the 1979 warranty deed, it appears that the chancellor relied solely on Pursue Energy Corp. v. Perkins, 558 So. 2d 349 (Miss. 1990). In that case, our supreme court set out a three-tiered approach for construing and interpreting written instruments when an ambiguity exists. [Fn 5] Id. at 351-53.

[Fn 5] (1) The court is to look solely to the language contained within the “four corners” of the instrument; (2) if the language within the instrument’s “four corners” is ambiguous, the court applies the relevant canons of construction in a discretionary manner; and (3) if the intent of the parties is still unknown, the court looks to extrinsic evidence. Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352-53 (Miss. 1990).

¶14. However, contract construction, or interpretation, is distinguishable from contract reformation. Essentially, reformation is a remedy—the changing of words—to a contract- formation defense. In contrast, rules of construction, or interpretation, do not change the actual words of the contract but determine the meaning of those words.

¶15. Although an ambiguous deed may be reformed, [Fn 6] when a deed is unambiguous, “the party asserting reformation must prove (1) a mistake on the part of both parties; or (2) a mistake on the part of one party with fraud or inequitable conduct on the part of the other party; or (3) an error on the part of the scrivener.” In re Estate of Summerlin, 989 So. 2d 466, 480 (¶47) (Miss. Ct. App. 2008) (quoting Bacot v. Duby, 724 So. 2d 410, 417 (¶35) (Miss. Ct. App. 1998)). “Moreover, the mistake must be proven beyond a reasonable doubt.” Id.

[Fn 6] Estate of DeLoach v. DeLoach, 873 So. 2d 146, 150 (¶14) (Miss. Ct. App. 2004).

¶16. Here, we do not find the language at issue in the 1979 warranty deed to be ambiguous. See Cypress Springs LLC v. Charles Donald Pulpwood Inc., 161 So. 3d 1100, 1104 (¶13) (Miss. Ct. App. 2015) (finding an instrument is ambiguous if one or more terms or provisions are susceptible to more than one reasonable meaning). Therefore, the chancellor’s reliance on the standard set forth in Pursue Energy Corp. was erroneous. See 17A C.J.S. Contracts § 386 (2011) (The “[r]ules of construction may be used only where the language of the contract, or a portion of it, is ambiguous.”).

¶17. As such, we do not give deference to the chancellor’s findings of fact and conclusions of law. See Brooks [v. Brooks], 652 So. 2d [1113,] at 1118 [(Miss. 1995)]. Instead, we review the record de novo. See id.

The court went on to find that there was a scrivener’s error because only a grantor can make a reservation out of the estate granted (citing Thornhill v. Ford, 213 Miss. 49, 56 So.2d 23,29 (1952), and MCA 27-31-77.

The main things to take away here are that: (1) there are specific rules governing reformation of a deed; and (2) the burden of proof is beyond a reasonable doubt.

Partiting the Former Marital Residence

January 14, 2016 § 2 Comments

Robert and Betty Coleman were divorced in 2002. Under the terms of the divorce judgment, Beverly got exclusive use and possession of the former marital residence, which was situated on family land deeded to the couple by Beverly’s mother, until the parties’ minor child attained majority age. Beverly was responsible to pay the mortgage debt, taxes, and insurance on the property, and the parties were to split equally any maintenance expenses. The judgment did not spell out what was to be done when the child turned 21.

In the years following the divorce, Beverly lived in the home and dutifully paid the sums assigned to her. Robert never paid any of the maintenance expenses.

When the child turned 21 in 2013, Beverly filed an action, apparently for modification of the divorce judgment, seeking possession, title to, and ownership of the home.

Robert counterclaimed for partition, and he filed a motion for a summary judgment that partition, rather than modification, was the proper avenue to accomplish the division. The chancellor agreed with Robert, ruling that “the parties are not married, the property is no longer the marital homestead and the property is subject by law to a division by partition as provided by statute.” That’s a neat, pinpoint ruling that avoids the problem that property division may not be modified.

A hearing was held on the petition, and the chancellor ruled that Betty should have title. He adjusted the equities by ordering Beverly to pay Robert $34,103.70, which amounted to his half-equity in the property at the time of the divorce adjusted upward for appreciation over time.

Robert appealed, arguing that the trial court impermissibly modified the divorce judgment and unfairly partited the property.

In Coleman v. Coleman, handed down January 12, 2016, the COA, by Judge Griffis, affirmed.

So, did the chancellor improperly modify the divorce judgment? Judge Griffis responds:

¶7. “A cotenant wishing to partite real property subject to a divorce decree is not required to file suit to modify the decree, but may exercise her statutory right to partition by filing a petition for partition.” Mosby v. Mosby, 962 So. 2d 119, 123 (¶12) (Miss. Ct. App. 2007) (citing Blackmon v. Blackmon, 350 So. 2d 44, 46 (Miss. 1977)). Robert argues that the chancellor essentially modified the divorce decree and that this modification was improper.

¶8. “This argument is without merit because the chancellor clearly granted the petition for partition and did not, in fact, modify the decree.” Id. Robert requested a partition, and the chancellor stated in his judgment that “the parties are no longer married, the equities need to be adjusted[,] and the partition statutes provide a sound method of arriving at a just and equitable result.” The court “proceeded accordingly under partition.” As the chancellor’s decision was based upon the partition statutes and he did not modify the divorce decree, the Court finds this issue without merit.

And did the chancellor abuse his discretion in how he awarded title and adjusted the equities? Again, Judge Griffis:

¶9. When parties seek a partition of land, “the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title.” Miss. Code Ann. § 11-21-9. In doing so, “[t]he court may adjust the equities between and determine all claims of the several cotenants . . . .” Id.

¶10. Generally, “a partition in kind, rather than a partition by sale, is the preferred method of dividing property in Mississippi.” Cathey v. McPhail & Assocs., 989 So. 2d 494, 495 (¶4) (Miss. Ct. App. 2008) (citing Fuller v. Chimento, 824 So. 2d 599, 601 (¶8) (Miss. 2002)). Robert and Beverly agreed that the home could not be divided in kind and that it should be sold under statute. They also agreed to a private sale to allow Beverly to purchase the home. A chancellor may order the sale of property and “a division of the proceeds among the cotenants according to their respective interests.” Miss. Code Ann. § 11-21-11 (Rev. 2004). As both parties agreed to a sale, the chancellor essentially needed to “adjust the equities between and determine all claims” of Robert and Beverly and divide “the proceeds” between Beverly and Robert “according to their respective interests.” Miss. Code Ann. §§ 11-21-9 & 11-21-11.

As for how the chancellor adjusted the equities, the COA went through the court’s analysis, and found it proper that Robert was awarded his equity at the time of the divorce plus its appreciation, and Beverly was awarded her equity at the time of the divorce, plus its appreciation, plus the additional equity that accrued over the years due to her payment of the mortgage debt. The COA found no merit in Robert’s argument.

Most crucially, the trial judge’s findings were supported by substantial evidence:

¶15. Keeping in mind the appropriate standard of review, this Court holds that the chancellor’s findings of fact and conclusions of law are supported by substantial evidence and are not an abuse of discretion. Robert did not provide any alternatives to the findings of the chancellor. Furthermore, the parties both agreed that a sale to Beverly was ideal. The chancellor’s well-reasoned conclusions are supported by the record and the briefs of the parties. The partition statutes allow for the chancellor to divide the proceeds among the cotenants according to their interests in the property. Miss. Code Ann. § 11-21-11. After inspecting the record, this Court is unable to see that Robert was denied any of his rights as a cotenant in the chancellor’s final decree. Finding no error, this Court affirms.

This is not one of those spectacular, keeper cases that one whips out every few trials. It’s just a workaday, nuts-and-bolts decision that provides a glimpse into the quotidian matters that stream steadily through the chancery courts every day, and how the chancellors are called upon to fashion common-sense, practical solutions.

A Procedural Peculiarity

June 11, 2015 § Leave a comment

We’ve talked here many times about the R54(b) principle that, if the judgment disposes of fewer than all of the issues, it is not a final, appealable judgment unless the judge certifies so in the manner prescribed by the rule. We’ve sounded that theme so often that I’m not going to add links in this post. You can search them for yourself, if you care to.

It’s that principle that has me scratching my head over the COA case Wood, et al. v. Miller, decided June 2, 2015.

Donna Smith and Audrey Kemp filed a complaint in chancery court in 2004 to quiet and confirm title, to determine heirship, and to partition some 261 acres of land that had descended via heirship and devise to the parties named in the suit. They filed an amended complaint in 2007.

Following a hearing in 2009, the chancellor entered a judgment quieting and confirming title and ordering partition. The commissioners some time in 2010 filed a report detailing how the property could be divided into three shares.

In October, 2010, the defendants filed a separate pleading in the same civil action seeking to obtain title of all the property by adverse possession. The pleading was not styled as a counterclaim.

In May, 2012, the chancellor entered a judgment confirming the commissioners’ report, and ordered that the petitioners would have one share, the respondents another share, and another group of heirs the third share.

Afterward the plaintiffs filed a pleading asking for a judgment for waste based on the defendants’ refusal to allow the land to be rented during the litigation. At the hearing on that pleading, the question arose about the pending adverse-possession claim that had never been addressed. The attorney for the defendants announced that he would schedule a hearing on the matter at a later date. He never did. The chancellor entered judgment against the defendants for waste for more than $90,000.

The defendants appealed, raising only two issues: (1) that the chancellor erred when she ruled that two of the petitioners had inherited Thornton Miller’s interest in the property through the will of Thornton’s widow, Magnolia; and (2) that they had adversely possessed the property. They did not otherwise contest the heirship determination, the partition, or the judgment for waste. It does not appear from the opinion that they raised any issue as to the original judgment quieting and confirming title.

In its opinion, the COA, by Judge Roberts, pointed out, quite accurately, that any issue of invalidity of Magnolia’s will had not been raised before the chancellor; nor could it, because MCA 91-7-23 requires such claims be brought within two years of probate of the contested will, and not later. Magnolia’s will had been probated in 1986, so the claim as to the will’s invalidity was untimely and barred by the statute. On those grounds, then, the COA refused to review the issue on appeal.

This was unquestionably the right conclusion as to issue (1).

As for the adverse possession claim, issue (2), the court concluded that, since it had never been presented to the chancellor for review, the issue was not properly before it, and refused to entertain this issue also.

With this issue, I have this question: since the judgment of the trial court disposed of fewer than all of the issues, should the COA have accepted jurisdiction over the appeal in the first place? R54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Since the adverse possession issue is still pending as a claim in this case, was there a final, appealable judgment, or should the COA have rejected jurisdiction? Well, no matter, I think that the COA reached the proper conclusion because:

You can not adversely possess against co-owners. The determination of heirship resolved the issue of Magnolia’s bequest and ownership, making all of the parties co-owners. Even if the matter had been properly presented at hearing to the chancellor, it did not state a claim upon which relief could be granted.
Any adverse possession claim should have been presented as a compulsory counterclaim to the claim to quiet and confirm, per R13. The reason for the rule is to prevent the very thing that was attempted in this case.
The chancery court’s order quieting and confirming disposed of any adverse possession claims.
This matter was pending in the trial court for nine years. If you haven’t demanded a hearing on your claims you should not have the right to ask or demand that the court deal with it later. You’re already late enough.

In other words, the outcome would not have changed. Just to be clear … I agree with the court’s ruling in this case. I just thought it presented a peculiar set of issues and procedures that would be of some interest.

Where Am I?