I concur in the construction given Sections 867, 868 and 869, Code of 1942, in the main opinion. I also adhere to the rule of notice of the rights of an owner by his actual or constructive possession. I have grave doubts, however, whether the rule is applicable to the facts of this case. When the lease and the various conveyances were executed by G.B. Travis the property was assessed to him on the tax rolls, and he was ostensibly managing it and controlling it just as was the case before he executed his deed to Mrs. Hooks June 14, 1932. If inquiry had been made of the tenants some would have said G.B. Travis was the owner, and others would have said Mrs. Hooks was the owner, if their respective statements had been in accord with their testimony. But I am concurring in the majority holding that the rule of notice is here applicable, because, and only because, the deed records did not show that G.B. Travis was the owner of the property. He got a deed from McIntosh, Trustee, January 27th, 1932. He placed the deed of record. It was destroyed by fire when the courthouse burned September 10, 1932. His deed was not re-recorded until June 13, 1944, after he had executed the lease and various mineral deeds involved in this case. Prior to the time G.B. Travis got his deed and even prior to 1929 the land had been owned by Webb Newell. Newell's deed was also destroyed by the fire. Therefore, when the various conveyances were executed by G.B. Travis, beginning October 16, 1933, and continuing to October 14, 1938, there was no deed record in Jasper County showing who was the owner of the land. In other words, one desiring to purchase or procure a lease on the property would not have been misled by examination of the records as to who was the owner. The only recorded indication of ownership in G.B. Travis was the fact the land was assessed to him on the rolls. Looking at the situation from a common sense standpoint a prospective purchaser, *Page 374 not having found on the record any deed to anyone, was charged with the duty, as an ordinarily prudent man, to make a more thorough outside investigation as to who was the true owner than would have been the case had there been a deed on record to G.B. Travis. In other words, the deed records gave no actual or apparent notice that G.B. Travis had title, an examination of such records would not have misled the examiner. No one was induced to purchase by anything which appeared on the records. There were no records. See Dixon v. Doe ex dem. Lacoste, 1 Smedes M. 70; Richter, Phillips Co. v. Phillips, 175 Miss. 242,166 So. 393. That, to my mind, is the decisive fact in this question and should distinquish this case from any other which might hereafter arise not containing that important fact.
But I can not agree that J.A. Travis did not ratify the Gulf lease. Clearly to my mind he did ratify it. It is conceded that the only reason alleged to explain why he did not ratify it is the claim that he did not realize that the Gulf lease covered the same land which his sister, Mrs. Hooks, conveyed to him January 4, 1943. These are the pertinent facts bearing upon that question: The land in controversy consists of 104 acres and is located in the Northwest Quarter of Section 5, Township 10, Range 10 West. On and before January 8, 1929, said land was owned by Webb Newell. Before that date he had executed a deed of trust thereon to the Federal Land Bank, the installment payments thereunder to run over a number of years. On and before said date Mr. G.B. Travis and his son, J.A. Travis, owned and operated a mercantile business under the style of Travis Son, located in Heidelberg, Jasper County. On that date Newell executed a deed of trust on said land in favor of Travis Son to secure $338.26 due September 1, 1929. Travis Son assigned this deed of trust to Threefoot Brothers. October 31, 1931, the deed of trust was foreclosed and the land was purchased in the name of G.B. Travis, who executed his note to Threefoot Brothers for *Page 375 $287.89, the balance of the debt owing by Travis Son to Threefoot. June 14, 1932, G.B. Travis conveyed the land to Mrs. J.H. Hooks. That deed was not filed for record until April 13, 1943. In the meantime, and beginning April 24, 1933, and ending October 7, 1938, Mr. G.B. Travis had executed two mineral leases and four mineral deeds on the land. These were all duly placed of record. This included the lease to Gulf dated October 21, 1937, which was recorded November 12, 1937.
In 1940 Mr. G.B. Travis became disabled to attend to business matters and Mr. J.A. Travis took charge of the land. Up to that time Mr. G.B. Travis had managed and looked after the property, collected all of the renewals under the lease, paid the taxes and installments to the Federal Land Bank. The Gulf lease contained 270 acres. That consisted of the Newell tract owned by Mrs. Hooks, and an 84 acre tract known as the McDonald tract adjoining and lying immediately east of the Newell tract, title to which was in Mrs. G.B. Travis, and also what is known as the Cook tract consisting of 80 acres located some 5 or 6 miles from the other two tracts. However, Mr. G.B. Travis had already conveyed away the Cook tract when appellant took charge. That was done April 30, 1939, so that the Gulf Company was paying to Travis rent upon the Newell and McDonald tracts alone. These two tracts were located some 6 or 7 miles from Heidelberg where J.A. Travis lived. As stated, they join. Mr. J.A. Travis looked after these two tracts. The tract in controversy was known in the community as the Newell place. September 26, 1941, the Gulf paid renewal rental of $33.75 under its lease. The check was payable to the order of G.B. Travis and Ida Travis. It covered renewals on the McDonald and Newell tracts. Mr. J.A. Travis endorsed this check in the name of his father and mother. The check was accompanied by a receipt which gave the name of the lessors, the date of the lease, and the date of its expiration and the amount of rental, and stated that a part of the land was located in Section 5, Township 10, Range 10, *Page 376 Jasper County. J.A. Travis signed the names of his father and mother to that receipt, which receipt said: "Received the above amount of money, being full payment for the purpose and for the period and under the terms of said instrument mentioned above." The same thing happened September 28, 1942, and September 29, 1943. J.A. Travis deposited these three rental checks to his own credit or collected the money thereon. On March 20, 1944, Mr. Eugene Seale, an attorney at Meridian, Mississippi, employed by the Gulf Company in title work, wrote a letter to Mr. J.A. Travis, which he received. That letter described the land in controversy, gave the section, township and range, said it was covered by the Gulf lease executed by Mr. and Mrs. G.B. Travis, and that the record showed that J.A. Travis was the owner at that time, Mrs. Hooks having executed a deed to him January 4, 1943. The letter refers to this land having been acquired by G.B. Travis from Webb Newell "although there is no deed of record from Webb Newell." It refers to the trust deed executed by Newell to the Federal Land Bank many years before. The letter contained a plat of the land in controversy with the words "Webb Newell" written over that tract on the plat. The letter sought information as to whether the Federal Land Bank had been paid, and some other information desired by said attorney. Mr. J.A. Travis delivered this letter to his brother. But no reply was made thereto. Not having had a reply to this letter, Mr. S.R. Nettles, an attorney doing curative work for the Gulf Company, called on Mr. J.A. Travis and his brother in June 1944 and discussed the matter with them. Notwithstanding receipt of this letter and all of the other events which happened prior thereto, Mr. J.A. Travis received a check from the Gulf Company dated September 28, 1944, for renewal rent on the land in controversy. The McDonald 84 acres had been sold and this check covered only the rent on the Newell tract. Mr. J.A. Travis endorsed the name of his father and mother on that check and he *Page 377 signed a receipt in their names for the money. In the meantime J.A. Travis, in March 1942, had moved to Jackson, and on October 23, 1942, he wrote the Gulf Company a letter as follows:
"G.B. Travis and Ida Travis are my parents. Both are physically (not mentally) afflicted due to strokes in right arm and leg. I have moved them here as a matter of convenience.
"Kindly change their address to 935 Morningside St., Jackson, Miss. Also, it would be more convenient for them if you could clear rental payments through the Deposit Guaranty Bank and Trust Co., Jackson, Miss."
The Company promptly acknowledged receipt of that letter saying it could not change the depository because there were many people interested in the minerals who would have to consent to the change of the depository. However, the change of address was noted. After this letter was written, Mr. J.A. Travis received, endorsed, and collected three rental checks under the lease on the land in question.
Under these circumstances how can it be said that Mr. Travis did not know the Gulf lease covered his land? Can one close his eyes and say he did not see the obvious? Mr. Travis had admitted that he knew of the deed from his father to Mrs. Hooks June 14, 1932, conveying the land in question. He got his deed almost eleven years thereafter. He was then charged with the notice that this lease was on record, executed by his father to the Gulf Company. He was a member of the partnership firm to whom Webb Newell owed the original debt. Until he moved to Jackson in 1942, he lived within a few miles of this land, and from the time his father became disabled to the time of the trial he had managed and looked after it, and since he got his deed, January 4, 1943, he had done that as owner.
This is not a case of principal and agent. It is a question of estoppel and ratification. In Merchants Manufacturers Bank et al. v. State, 200 Miss. 291, *Page 378 25 So.2d 585, 591, this Court said: ". . . Then, too, the said Marie J. Black would not be entitled to accept the consideration paid to the bank for the said oil and gas lease and the annual rentals accrued to and to accrue thereon without being held to have ratified the said lease . . ." In the case of Koenig v. Calcote, et ux., 199 Miss. 435, 25 So.2d 763, the Court quoted this rule announced in 12 C.J.S., Cancellation of Instruments, 38, page 996: "Where a party, with knowledge of facts entitling him to recission of a contract of conveyance, afterward, without fraud or duress, ratifies the same, he has no claim to the relief of cancellation. An express ratification is not required in order thus to defeat his remedy; any acts of recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm." In Whittington v. H.T. Cottam Co., 158 Miss. 847,130 So. 745, 748, 76 A.L.R. 332, this Court, in a suit to set aside an instrument allegedly procured by fraud said: "The election is with him. He may affirm or disaffirm the contract, but he cannot do both. If he has full opportunity to learn all the facts and the law applicable thereto, and fails, within a reasonable time, to rescind the contract, he is bound by it." In 35 C.J., p. 1169, Sec. 445, the statement is made: "It has been held that, where a lease was originally invalid for want of title in the lessor, and a subsequent purchaser or the holder of the true title accepts attornment from the lessee under the invalid lease, with knowledge of the terms and conditions of the lease, he validates the lease, . . ." In Davis v. Burrage, 156 F.2d 304, 307, the Fifth Circuit Court of Appeals, that Court referring to the Koenig Case, supra, said: "Under Mississippi law, after each plaintiff knew that a conveyance of one-half of the mineral rights under his property existed, or had knowledge of facts that would lead a reasonable man to discover the existence of such a conveyance, acceptance of a payment representing delay rentals on the other half of the mineral rights ratified the mineral deeds taken by *Page 379 Burrage." It was there further remarked: ". . . An express ratification is not required in order thus to defeat his remedy; any acts of recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm. . . . Nevertheless, notice of acts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is, in the eye of the law, equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose . . ." That Court further observed: "Thereafter, the said grantors continued to receive annually only one half of the $23.85 provided for as rental under the oil and gas lease held by the Sun Oil Company . . . Then too, the mineral deed was of record at the county courthouse in 1936 when Mr. Calcote `heard it talked around the community when my check was split, that Mr. Koenig had executed a mineral deed on us,' it having been shown that numerous other conveyances of like nature had been obtained by Koenig in the community where the Calcotes reside. They thus had notice of facts and circumstances which in the eye of the law was equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose."
It is not a matter of supporting a ratification by constructive or imputed knowledge. It would impugn the intelligence of Mr. Travis, who is shown by the record to be a highly educated, intelligent man, to doubt that he knew what property was covered by the rental payments, especially after the Seale letter and the Nettles conference.
Alexander, J., concurs in this opinion.