As shown by a notation which immediately follows the former opinion whereby this case was affirmed, I took no *Page 386 part in the decision on account of being a close kinsman of some of the appellants. The judgment of affirmance has now become final as to them, their part of the cost has been paid, according to the records of this Court (Cost Book 62, page 207), and no suggestion of error has been filed on their behalf, although the time for doing so has long since expired.
After having read both the controlling and dissenting opinions heretofore rendered, which involve the construction of the registry statutes, Sections 867, 868, and 869, Code 1942, as applied to the facts of this case, and also the question of whether or not the law of estoppel and ratification had been correctly applied as announced by the former decisions of this Court and particularly in the recent cases of Merchants Manufacturers Bank et al. v. State, 200 Miss. 291,25 So.2d 585, 591, and Koenig v. Calcote et ux., 199 Miss. 435,25 So.2d 763, together with the earlier case of Whittington v. H.T. Cottam Co., 158 Miss. 847, 130 So. 745, 76 A.L.R. 332, and as followed in the case of Davis v. Burrage, 156 F.2d 304, 307, recently decided by the Fifth Circuit Court of Appeals, wherein there is quoted with approval a considerable portion of the unanimous opinion of this Court in the case of Koenig v. Calcote, supra, all of which cases are quoted from by Justice Roberds in his dissenting opinion, in which Justice Alexander concurred, I concluded to carefully study all of the briefs in the case at bar and make a diligent and thorough examination of the four volume record and the volume of exhibits to the testimony involved herein. And it was not until I had done this, and had learned of the finality of the judgment here against all of the appellants save the Gulf Refining Company, that I definitely decided that I should participate in the consideration of the suggestion of error which is filed solely on behalf of the said appellant. I am further prompted to do so because of the realization that if I had not been related to any of the the other appellants, or had never heard of them before, the decree appealed *Page 387 from would have been reversed by a majority vote of the Judges who would have then participated in the decision. But let it be judged as to whether or not this opinion will disclose within itself a justification for being written, and as to whether or not there is any merit in the appellee's case.
On September 10, 1932, when the courthouse and all of the land deed records of Jasper County were destroyed by fire, G.B. Travis, the common source of title herein, was the undisputed record owner of the land described in the oil and gas lease now sought to be cancelled, and which lease was executed by him and his wife, on October 21, 1937, and promptly filed and recorded, in favor of the appellant Gulf Refining Company without any notice of the five year old and unrecorded deed in favor of his daughter, Mrs. J.H. Hooks, through whom the appellee now claims, dated June 14, 1932.
One of the deed of trust records, B TT, was not destroyed by the fire, and it contains the recordation of a deed of trust given by G.B. Travis prior thereto on the land in question. Thereafter he executed in 1933 an oil and gas lease in favor of Eastman-Gardner Company, which later lapsed, and a mineral deed in favor of Frederick G. Cox, trustee, both of which were promptly recorded in the new deed records, and these conveyances were also taken without notice of the said prior unrecorded deed.
Mr. Travis had acquired the land here in question through the foreclosure of a deed of trust given by the former owner, Webb Newell, in favor of G.B. Travis and Son, wherein the appellee, J.A. Travis, was one of the beneficiaries, and on the said 14th day of June, 1932, prior to the destruction of the records by fire, as aforesaid, G.B. Travis, who was then engaged in the mercantile business, conveyed the land by deed absolute in form to his daughter, Mrs. J.H. Hooks, who then resided at Grenada, Mississippi, in consideration of her agreement to pay an indebtedness of approximately $300 which the grantor *Page 388 owed on the land to Threefoot Brothers at Meridian, Mississippi, and which she soon thereafter paid.
The deed in favor of Mrs. Hooks was not filed or placed of record until nearly ten years after its execution, and then only at the instance of the appellee J.A. Travis. When asked as to why she did not have her deed recorded promptly, she testified, "Well, it rained terribly hard and the roads (to Paulding) were awfully bad." And her only other explanation in that regard was that "I seem to have had the impression I had to record it in person. Q. You had to record it in person? A. Yes." And her husband, Dr. J.H. Hooks, a Baptist minister, was asked as a witness at the trial, "Now, then, when was it you decided to record the deed from Mr. Travis to your wife? A. That was when we were informed by Alna (J.A. Travis, appellee) that there were several papers in his father's possession he failed to have recorded, and he had assumed the responsibility of trying to get matters straight, looked through the papers as I recall and discovered several not on record that should have been, and he also called our attention to the fact that the deed to our property, which had been our property, was not recorded." Just how the appellee could have called their attention to the fact that the deed from G.B. Travis to Mrs. Hooks had not been recorded, unless he found it among his father's papers, in the light of his testimony that he had not examined the records, is not explained. In other words, it does not appear how he would have known that it was not of record, without having examined either the deed or the records unless she, or some other member of the family, had previously advised him that she was withholding it from the record. He testified that, "I knew my sister owned the Webb Newell place in 1932," but he does not claim to have seen the deed until in April, 1942, when it is claimed that she sent it to him by mail at his request immediately prior to its recordation on April 13, 1942, which was immediately *Page 389 following his examination of his father's papers as mentioned by Dr. Hooks.
But there is no dispute in the testimony that Mrs. Hooks paid a consideration for this deed. She produced written evidence of having paid $125 on the debt assumed, and she testified that the deed was kept in her possession until it was sent to the appellee in 1942 as aforesaid. But the testimony of her husband hereinbefore quoted, together with the fact that her father G.B. Travis on April 20, 1933, executed the standard mineral lease to Eastman-Gardner Company and the deed for a one-half undivided interest in the minerals in place to Frederick G. Cox, trustee, on April 24, 1933, and continued to do each and everything he had done before he made the deed to her, plus the keeping of the deed off the record until after the grantor therein had become totally and permanently incompetent, strongly indicates that the deed may have been intended merely as security. In fact, the action of her father in executing the subsequent conveyances above mentioned within less than a year from the date of this deed, and in executing the lease here in question with warranty of title in favor of the Gulf Refining Company on October 21, 1937, thereby representing himself to be the owner of the land, expressly claiming the land by oral statement and producing his current tax receipts thereon, and retaining the cash consideration and the annual rentals therefor, together with that received for these two former conveyances, without ever having mentioned the fact to Mrs. Hooks, his only daughter, that he had collected this money, can not be reconciled on any other theory than that her unrecorded deed was then no longer considered by them to be effective as such, unless it should be assumed that he was willing to give conveyances on property which he knew he did not own, thereby dealing unfairly and unlawfully with his lessees and grantees in getting their money, and likewise unfairly with his daughter in withholding any knowledge *Page 390 thereof from her. The latter theory is wholly inconsistent with the fact that Mr. Travis was shown to be a man of outstanding honor and integrity.
The proof discloses without dispute that after the deed was executed by G.B. Travis in favor of Mrs. Hooks in 1932 he continued to pay the taxes on the land in his own name; that he made an annual payment to the Federal Land Bank thereon continuously until 1940, when he became totally incompetent, the amount of which annual payments Mrs. Hooks testified she did not ever learn; that he made the trades with the tenants on the place and they paid the rent to him; that he signed subordination agreements as landlord in favor of the Credit Production Corporation; that he kept up such repairs as were made on the place at his own expense, and continued to manage and control the operation of the farm, and that he manifestly represented to the representative of appellant that he owned the land at the time he executed the lease in question, since the lease warrants the title as his own, and no sensible man would have paid out his company's money and induced it to pay annual rentals under the lease unless the lessor had claimed to be the owner of the land described therein. Moreover, according to the positive testimony given on behalf of the appellee by one of his brothers, the lessor, G.B. Travis, was actually found on this land with Lawyer Abney, the alleged tenant of his daughter Mrs. Hooks, who then lived in Louisiana, at the time the first interview was had by the representative of the appellant in regard to the procurement of this lease. That is to say, there was no substantial change in the occupancy of the property such as to arrest the notice of a prospective purchaser, as expressly required by the recent decision in the case of Lay v. Nutt, 194 Miss. 83,11 So.2d 430, 432, wherein the Court said: "Regardless of the effect of those decisions sustaining constructive notice where lands conveyed are in the possession of third persons as tenants or therwise (Gordon v. Sizer, 39 Miss. 805; Stovall v. Judah,74 Miss. 747, *Page 391 21 So. 614, and cases cited), this principle finds exception where the posession is by relatives or members of grantor's family. . . . There must be so substantial a change in the occupancy of the property as to arrest the notice of a prospective purchaser." And although the application of Sections 867, 868 and 869, Code 1942, which give priority in title to the holder who first files his conveyance for record "in the absence of actual notice" is not re-argued on the suggestion of error, I take this opportunity to dissent from the construction given those statutes in the former controlling opinion herein, as applied to the facts of thiscase.
After G.B. Travis and his wife became invalids, and to a large extent helpless, in 1940, Mrs. Hooks made a quitclaim deed of the land here in question to her brother, the appellee J.A. Travis, on January 4, 1943, in order that he might devote the revenue therefrom as a contribution to the expense of supporting and maintaining her said parents, at a time when it was of course known to some of her brothers, and as a matter of common knowledge, that the land could have been then leased for oil and gas, and conveyances made for part of the minerals in place, for a great deal more money than the net yield of the land as a farm had amounted to during its continued operation by her father for the entire time that Mrs. Hooks had held the unrecorded deed thereto, unless it was then known to the appellee that it was already under lease to the appellant. In fact he had already collected two annual rental checks under the said lease, of which he and Mrs. Hooks say she was not advised. As a matter of fact two of her brothers testified to having been present when the lease here in question was executed in favor of the appellant on October 21, 1937, and one of them admitted he signed this lease as a witness. Mrs. Hooks testified to having received none of the rentals from the lease and only about $35 or $40 from the operation of the place by her father as a farm from 1932 to 1940, inclusive, which amounts were in trade at the store. *Page 392
The appellee had taken charge of this land, along with other lands of his father and that of his mother, in 1940 in order to devote all of the net revenue therefrom to their support and maintenance. And he testified that he did not know that this Webb Newell tract was included in the 270 acres covered by the lease in favor of the appellant, until he obtained an abstract thereof in December, 1944, after having cashed four annual rental checks thereon in 1941, 1942, 1943 and 1944, each of which checks contractually provided in the face thereof that the amount being paid was "in settlement of rental for the period hereinafter stated, and as per terms of mineral lease described as follows" (describing it), and which checks also specified in the face thereof the date of the lease and the parties thereto, the location of the land, and that the rental was for an annual extension period beginning on the date thereof. For instance, the check cashed by the appellee as of October 21, 1944, read as follows:
"Shreveport, Louisiana
9-20-44
The Gulf Refining Company has this day mailed to
Bay Springs Bank,
Bay Springs, Miss.
its check for the amount hereinafter set out for deposit
to the credit of the parties named, in payment
of rental for the period stated, under terms of mineral
lease described as follows:
----------------------------------------------------------------
File No. For credit of Rental of annual Amount
period beginning
----------------------------------------------------------------
15,295 G.B. Travis and 10-21-44 $23.75
Ida Travis
935 Morningside St., Exchange .60
Jackson, Miss. _______
$24.35
----------------------------------------------------------------
Lease from G.B. Travis et ux to
Gulf Refg. Co., dated Oct. 21, 1937,
*Page 393
covering said parties' interest in
270 acres in Sec. 26, Twp. 1 N., Rge.
12 E., Sec. 5, Twp. 10 N., Rge. 10
W., Jasper County, Miss.
----------------------------------------------------------------
All parties named above sign receipt at bottom of
this letter. Returning letter and receipt to me in
the enclosed stamped addressed envelope.
Yours truly, D.V. Blocker
----------------------------------------------------------------
Do Not Detach
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.
(Signed) Ida Travis Deceased
G.B. Travis by J.A. Travis"
This photosatic copy of the above mentioned check, and similar copies of two of the others, were introduced as exhibits to the testimony on behalf of the appellee, which photostats disclosed the information above shown; and that this data as to the name of the payees, the description and date of the lease, names of the lessors and lessee, acreage of land and its location, etc., was typewritten in the face of the check itself.
The appellee necessarily knew from the face of these checks that they were being sent to renew or extend the lease each year, and that the 270 acres mentioned therein and covered by this annual rental included the Webb Newell tract, the title of which his father acquired as aforesaid by foreclosure of a deed of trust in which the appellee was one of the beneficiaries. A son may not know the numbers of his father's land, but he nevertheless knows the approximate acreage thereof, and from whom his father has acquired the same. He testified that he knew that the Webb Newell tract, which all the proof shows is embraced in the 270 acres, was conveyed in 1932 to his sister Mrs. Hooks. He was in charge of and operating the entire 270 acres, and had been during the *Page 394 three years prior to cashing the check above quoted, and during which three years he had cashed the others.
In view of the date of his own quitclaim deed from Mrs. Hooks, on January 4, 1943, it clearly appears that appellee cashed the last two of these checks after he acquired such deed. In doing so he could not have been acting as agent for his parents, and especially when he cashed the one for 1944 hereinbefore quoted, since it shows on its face that his mother was then dead and the proof is that his father had been totally incompetent throughout the years from 1941 to 1944, inclusive. There was no one who could have constituted him such an agent. He was, therefore, acting in his own behalf when he cashed these last two checks, because he claims that he owned the land, and he had a deed to it, at the time each of them was cashed. Nor could the appellee have been acting as agent for Mrs. Hooks when he cashed the checks in 1941 and 1942, before she conveyed the land to him, since he and his brothers, as well as Mrs. Hooks, all testified that she knew nothing about the fact that the land had been leased or that any of these rental checks were being received.
Aside from the fact that the checks on their face disclosed the information that the entire 270 acres were under the lease of October 21, 1937, in favor of the appellant Gulf Refining Company, the appellee wrote to the said Company on October 23, 1942, after having, on September 28th of that year, cashed the check extending the lease for another year, beginning on October 21, 1942, and requested the appellant to thereafter "clear rental payments through the Deposit Guaranty Bank Trust Company, Jackson, Mississippi." They were then being cleared through the Bay Springs Bank, as shown on the photostatic copies thereof introduced in evidence, and as shown by the testimony of the cashier of the said Bank. And in reply to this letter he was advised that the depository bank could not be changed without the signatures of twenty-three people who held mineral rights under a conveyance from his father to C.R. Ridgeway, dated *Page 395 October 22, 1937. He necessarily knew that the appellant was referring to a conveyance including this land, since he is bound to have known that it was included in the 270 acres which he then had charge of, and which acreage was specified in the check which he had then recently cashed.
Moreover, on March 20, 1944, prior to the cashing of the last check by the appellee hereinbefore quoted in full, he received a letter from Eugene Seale, a title attorney of the appellant Gulf Refining Company, describing the land embraced in the Webb Newell tract in the caption of the said letter, calling attention to the lease to the Gulf Refining Company executed by Mr. and Mrs. G.B. Travis, mentioning other lands in the letter, and stating that: "However, the balance of the land (referring to that about which he was writing) was evidently acquired by G.B. Travis from Webb Newell, although there is no deed of record from Webb Newell." The appellee testified that he received, but did not read, this letter; and further that, "when I saw it requested a quitclaim deed from me to one Will Harrison on the 40 acres of land included evidently in the Webb Newell deed, according to this man (Seale), I took it to my brother (Cecil Travis) and asked him to attend to it." (Italics mine.)
Notwithstanding the testimony above mentioned in regard to not having read the letter, it appears from the letter sent up to this Court for inspection as an exhibit to the testimony of the appellee that the first page of this single spaced typewritten letter contains six paragraphs and that the request for the quitclaim deed appears in the last two lines of the sixth paragraph at the bottom of the first page of the letter. And his brother to whom he delivered the letter testified that, "I threw it down in the basket; it finally got into the files. Q. Did you read the letter? A. No." However, he did not mean that he threw it in the wastebasket, but in a basket on his desk. *Page 396
There was attached to the letter above mentioned a map or plat specifically designating a portion of the land embraced in the plat as being the "Webb Newell" land. At the time this letter was thus received, the Helen Morrison discovery oil well in the Heidelberg field was located approximately a mile and a half from this Webb Newell tract, and had been in production for nearly three months.
Moreover, in June 1944, S.R. Nettles, an attorney who was then doing title work for the appellant, and because of the illness of the attorney Seale, had resumed the negotiation with appellee, following the failure of the former to obtain any reply to the communication of March 20, 1944, and had a conference in the office of Cecil Travis, at which the appellee was admittedly present part of the time, and at which time the appellee had procured from his home and produced for Nettles, who was known to be acting on behalf of appellant, the original trustee's deed whereby G.B. Travis had acquired this Webb Newell land, together with the original deed of trust executed by Webb Newell, and the proof of the publication of the notice of sale thereunder, all of which documents were delivered to such representative for rerecordation. Photostats of these instruments were caused to be made by Nettles on that day, copies of which were left with the Travises until the originals could be re-recorded and returned to them.
On the conflicting evidence given by Nettles and Cecil Travis as to what was discussed on that occasion, the Chancellor could have found that the appellant's oil and gas lease of October 21, 1937, given by G.B. Travis and wife, was not specifically mentioned in this interview which lasted approximately forty-five mintues. But it was wholly immaterial whether the lease was specifically mentioned or not, since the Travises necessarily knew for what purpose Nettles wanted to re-record these instruments. The appellee knew that annual rentals were then being collected from appellant under this lease covering *Page 397 this particular land, as a part of the 270 acres mentioned in the checks which specified in the face thereof that they were for annual extensions of this particular lease, giving its date, the names of the lessors and the lessee, the total acreage of the land and where it was located, as hereinbefore stated, which had been in the charge and management of the appellee for more than three years at that time.
Then, too, he had been paying the taxes during said time on this land for three years, as part of the 270 acres, in the name of his father, and therefore necessarily knew that the lease covering 270 acres included the Webb Newell tract which was then in his charge and control. Nevertheless, he cashed another check thereafter, the one hereinbefore quoted in full, and his endorsement of this check discloses that his mother was then dead, and the proof disclosed without dispute that his father was then totally incompetent. This was done while appellee was holding a deed from his sister in his favor to this land. He was therefore acting in his own right, ratifying and confirming a further extension of the lease far beyond the date of the filing of this suit, endorsing and becoming bound by a memorandum in writing, obviously sufficient within the statute of frauds for that purpose, and specifically referring to the lease here in question.
It is true that the appellee testified that he did not receive any personal benefit from cashing these checks, but he also testified positively at three places in the record that he used the proceeds thereof to reimburse himself, and the proof shows that he either deposited these three checks to his own account or cashed the same for the purpose above stated. To quote his exact language, he said, "I was merely reimbursing myself for money expended." The Chancellor thereupon stated into the record that, "I don't see the pertinency of it," meaning what he did with the money. In this conclusion the Chancellor was manifestly correct, because if one accepts the rentals from a lease on his own land made by another, *Page 398 and aids in converting the money to either the use and benefit of him who has assumed to make the lease or to his own use, he thereby ratifies and confirms what has been done. Furthermore, he is estopped to assert the contrary as complainant in a court of equity.
If he had rejected the first check received after he got his deed on January 4, 1943, insofar as it covered his land, the appellant could have acquired leases on other lands for its block of development in its stead, before the discovery well was brought in in December of that year, at a price far less than when appellee filed this suit in 1945, it being suggested that this land is probably worth $500,000. It is therefore, and I say it with deference, not debatable that appellant has been misled to its injury by the appellee's course of dealing with this lease, and that he is estoped to now question its validity, seeking affirmative relief in equity.
And yet, notwithstanding all of the foregoing facts it was held by the trial court that there had been no ratification and confirmation of this lease by the appellee; and it was evidently so found upon the untenable theory that the appellee did not know that the Webb Newell tract was under lease until he obtained an abstract in December, 1944. This finding was made notwithstanding that the appellee had testified that he began urging his said brother Cecil in January, 1944, to get him up an abstract to this land and repeated such requests at least once or twice a month in the meantime. He had another lawyer brother living at the county seat at that time where this lease was of record, and since the land records were burned in 1932 there were no conveyances to be abstracted except the trustee's deed to G.B. Travis, which has been re-recorded after the fire, the deed from G.B. Travis to Mrs. J.H. Hooks and her deed to the appellee, all of which he admittedly had in his possession, and the leases and mineral deeds hereinbefore mentioned, executed prior to the recordation of his deed. *Page 399
Information as to the lease under which the appellee knew he had been collecting annual rentals from the appellant could have been obtained in a few minutes time during the year 1944, when lands near the oil wells in the vicinity where this tract was located were being leased, as a matter of common knowledge, at fabulous prices because of the discovery of the Helen Morrison well in December, 1943, only ten miles from the Eucutta field, discovered in July, 1943, as aforesaid. It is unbelievable that if the appellee had not known that this land was under the 270 acre lease of the appellant he would have waited from January until December, 1944, to have ascertained such fact, since he would have of course wanted to get the land in production. He could have found out by return mail, by writing the office of appellant from which he was receiving his rental checks. Of course he already knew, and the proof is conclusive that he did.
But it is urged on behalf of appellee that the issue as to whether there was a ratification and confirmation of this lease, or an estoppel by conduct, was a matter for the discretion of the Chancellor. The case of Sample v. Romine, 193 Miss. 706, 709,8 So.2d 257, 9 So.2d 643, 10 So.2d 346, is cited and quoted from as authority therefor. But, as clearly disclosed by the opinion therein, the court was dealing with a question of laches. The application of that doctrine is largely within the judicial discretion of the court, unless completion of the bar of some statute of limitation leaves the court no discretion.
In the case at bar the evidence is conclusive, as aforesaid, that the appellee endorsed these checks with full and complete knowledge of all the material facts and circumstances insofar as the existence of this lease on this land is concerned, and of his rights in the premises, without regard to whether or not he failed to learn of the alleged details in connection with theexecution of the lease until December 1944, as those details were dramatized in the testimony of two of his brothers who claim *Page 400 to have been present when the lease was executed, and in which testimony it was claimed that the representative of the appellant took the lease originally and paid out the money of his principal therefor, after being then and there told that the title was in Mrs. Hooks — testimony which was rejected by the Chancellor as evidenced by his express finding that the appellant had no actual notice of any other ownership than that claimed by the lessor G.B. Travis.
It is said in the former controlling opinion herein [29 So.2d 100, 104]: "We think it is not of controlling consequence whether or not appellee read the documents and the letter above mentioned, for, if he had done so, none of them would have furnished him any information on the following two facts not only of material, but of dominant, importance: First, as to when it was that G.B. Travis conveyed the land to his daughter, Mrs. Hooks; and of more importance, second, whether Mr. Travis had been authorized by his daughter to execute the lease in her behalf."
However, on the first proposition the appellee testified that he knew that his father had conveyed the land in 1932 to Mrs. Hooks. He personally handled and had her deed recorded in 1942. And the deed, of course, disclosed when it was executed. His deed was from the grantee therein, and he kept on cashing rental checks under the lease. And as to the second proposition there is no contention made on the appeal in this case that Mr. G.B. Travis had been authorized by his daughter to execute the lease in her behalf. The contention is, and the proof shows, that Mr. Travis executed the lease in his own behalf, and as being on his own property. He did not purport to act for her in the matter. And she says that she knew nothing about the lease until the year 1944. Nor did the appellee J.A. Travis attach sufficient importance to her rights in the land to tell her that he had collected two rental checks under this lease before she conveyed the land to him by quitclaim deed. If he was acting as *Page 401 her agent in collecting these two checks, she knew nothing about it; he was manifestly acting for himself when he collected the last two as aforesaid, since he then held a deed to the land. He could not have acted as agent for his parents because they were incapacitated to constitute him such. Therefore, I am unable to see how the uncontrovertible principles of the law of ratification as between principal and agent, set forth in the former controlling opinion herein, can have any application to this case.
Nor can the statute of frauds, Section 264, Code 1942, be a bar against the defense of estoppel and ratification. That statute, among other things, provides that, "an action shall not be brought whereby to charge a defendant or other party: . . . (c) Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year; . . . Unless, in each of said cases, the promise or agreement upon which said action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing."
The question of whether the appellee was lawfully authorized in writing to sign the check hereinbefore quoted in full, which constitutes on its face a sufficient memorandum in writing within the statute of frauds, is not here involved for the reason that when he endorsed the said check and received the proceeds thereof, as well as the check in September, 1943, he held a deed to the land, and was therefore acting in his own right, as hereinbefore stated, even though he did sign the names of his father and mother thereto as a means of obtaining the money, at a time when his father knew nothing about it, and his mother was dead.
Moreover, the only reference made in the briefs to this statute of frauds is on two pages of the more than 100 page brief on behalf of the appellee, where the contention *Page 402 is made, in the first instance, not that the statute of fraudsis a bar to the defense of estoppel and ratification of aconveyance of an interest in realty, but that because of the said statute strict proof in support of such defenses is to be required, and in the second instance that it applies unless there is an estopel, and such estoppel is abundantly shown here. The conclusive proof here in support of such defenses would obviously amount to as much as strict proof thereof.
Furthermore, we unanimously held quite recently in the case of Merchants Manufacturers Bank v. State, 200 Miss. 291,25 So.2d 585, 591, that Mrs. Marie J. Black was the owner of the legal title of the land there involved, and had made no conveyance or lease of the minerals, but that she "would not be entitled to accept the consideration paid to the bank for the said oil and gas lease and the annual rentals accrued and to accrue thereon without being held to have ratified the said lease, and she expressly disclaims any intention or desire to ratify the same," even though she had not executed a lease complying with the statute of frauds, or otherwise at that time. She had sought a cancellation of the lease, and at the same time wanted to collect from the lessor bank and its lessee the monies theretofore collected by them as a cash consideration and annual rentals. In the case at bar the appellee seeks cancellation of the lease here in question and is not even being required to do equity by refunding the annual rentals which he collected thereon. Of course, the appellant should not be required to accept such a refund in view of appellee's ratification and confirmation of the lease in writing on four different occasions, and because of his estoppel by conduct to have the lease now cancelled, in equity.
In the case of Koenig v. Calcote, 199 Miss. 435,25 So.2d 763, 764, 767, concurred in by all of the justices, and quoted from at length as aforesaid by Justice Roberds in his dissenting opinion herein on the former hearing, (and to which reference is here made for the quotation *Page 403 and for that said by the Fifth Circuit Court of Appeals in the case of Davis v. Burrage, supra,) we held that the Calcotes were not entitled to a cancellation of the mineral deed where they had been collecting annual rentals from the Sun Oil Company under a lease with full knowledge of the facts in the premises, and where the appellant Koenig, the only other litigant in the case, as holder of the mineral deed, had not, of course, paid any part of such rentals under the lease to them. In that case, as shown by the opinion therein, Koenig set up the defense "of whether or not there was a subsequent ratification of the deed by the grantors after being advised of its import." But it is said in the former controlling opinion herein that the case referred to "was not one involving ratification but was a suit to rescind and cancel a lease made by the party complainant himself." Since the case of Koenig v. Calcote, supra, did in fact involve the question of ratification where the Calcotes were seeking a cancellation of the deed, with full knowledge in the premises when they accepted the annual rentals from an oil company which was not involved in the litigation, I am unable to see any difference between a conveyance being ratified by the grantor and one being ratified by a vendee claiming through such grantor with full knowledge of the facts when he accepts the benefits thereof.
Moreover, Mr. and Mrs. Calcote, an humble couple on a farm, with less education than appellee, were held by the trial court not to have had the full import of their conveyance in mind, as written, at the time they signed the same, and were held by this Court to have nevertheless confirmed and ratified the conveyance by accepting one-half of the annual rentals from an oil and gas lessee after they had become advised that the defendant Koenig held the mineral deed and was receiving the other half; whereas, it is being held in the case at bar that the appellee, who, as shown by the testimony, holds two college degrees, and has been connected with the State Department of Education, served as Assistant to the President *Page 404 of a college, and is now serving as Director of its Endowment Campaign, did not ratify and confirm the lease here in question on the ground that he didn't know what he was doing, or what it was all about. But as to whether a person may avoid the consequences of his acts on the ground that he did not read or pay any attention to the contents of the writings that he has signed, the following cases hold in the negative: Continental Jewelry Co. v. Joseph, 140 Miss. 582, 585, 105 So. 639; Gunter v. Henderson Molpus Co., 149 Miss. 603, 621, 115 So. 720; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 64, 178 So. 914; Alliance Trust Co. v. Armstrong, 185 Miss. 148, 163, 186 So. 633. These cases were cited in the case of Koenig v. Calcote, supra, to support the theory of a ratification on the part of the Calcotes notwithstanding that they did not read or comprehend the information furnished them on the rental checks which they cashed.
As to the rentals under the lease now in question being only at the rate of twenty-five cents per acre, the lease was made about two years before oil had been discovered anywhere in this State or in any other southern state east of the Mississippi River, and, as in the Calcote case, the price was in keeping with what was being paid to other lessors throughout the State at that time.
Finally, in the former controlling opinion herein, in answer to the argument that the appellee's education and experience, and his more than average general intelligence, disprove his contention that he didn't read and comprehend the meaning of the instruments he saw and handled, it was observed that if he had known the facts when he accepted the 1944 rental check after the discovery of the first oil well, "he would be made out, not as having any sense, but as being little, if any, better than a moron." The force and logic of this observation can not be answered on any ground save one, which to me is a complete answer, and that is that he had not at that time been able to get his consent to go into court and contend that his father had been guilty of the alleged *Page 405 wrong-doing hereinbefore mentioned; or that his father, and his mother who joined in the lease, the two brothers who claim to have been present at the time of its execution, together with the appellee himself, had all failed to advise his sister, Mrs. Hooks, of the fact that these cash considerations and annual rentals had been collected from year to year on this land, or that he had also failed to advise his brother Cecil, who was helping him with the expense of suporting and maintaining their parents, about the fact that he himself had been collecting these rentals for the past four years. Nor was he then willing to contend that the appellant should not have relied upon the truthfulness of his father's representations as to the ownership of the land, but rather should have turned to the negro tenant and obtained his opinion of the title, and as to whether appellee's father was telling the truth in regard thereto.
When the complainant rested his case the testimony and exhibits thereto had fully and completely established that he was estopped to question the validity of this lease and that he had fully ratified and confirmed the same. And there is no contention that any of the testimony offered by the appellant, or any of other defendants, had the effect of weakening or destroying the defenses of estoppel and ratification thus disclosed. It is therefore unnecessary to review or discuss the supporting testimony of the defendant's witness Nettles thereon.
It is true that in the forefront of its brief on the suggestion of error herein the appellant did say that "the sole point to which this suggestion of error is directed is the one as to ratification vel non of appellant's lease." However under Point V of this brief there appears the following caption: "The majority opinion of the Court is in error in not holding under the undisputed facts of this record that appellee deliberately recognized, adopted and ratified the appellant's lease, and having so done, was and is without right to question orrepudiate it." (Italics mine.) Thus it will be seen from the above italicized *Page 406 words that it is obvious that the appellant does invoke the fact that the appellee is estopped by his conduct by reason of having ratified and confirmed the lease. In fact fifteen pages of the brief are there devoted to a discussion of this point, with numerous citations of authorities to which no reference is made in the controlling opinion on the suggestion of error.
Moreover, Under Point VI of the brief there appears the following caption "The majority opinion of the Court is in error in overlooking the fact that appellee unduly delayed acquiring sufficient knowledge, and after having received and retained yearly delay rentals paid to him, to move to repudiate the said lease or to sue to rescind and cancel it." The controlling opinion on this suggestion of error also states that "no disadvantage or injury to the apellant is here claimed because of this short delay in the institution of this suit, . . ." Yet the record discloses a stipulation at the instance of the appellant that it had drilled a well at a cost of $83,973, at the time the trial court cancelled its lease. This expenditure was made in reliance upon the validity of the lease, as to which the appellee was fully advised, since he was making frequent trips to the area of this block of development. And all of the proof discloses, aside from a matter of common knowledge, that if the appellee had rejected either of the first three checks that he cashed as rentals under this lease prior to the bringing in of the discovery well in the field, the appellant could have acquired other lands for its block of development at an almost nominal consideration in comparison with what this land is said to have been worth in March 1945 when this suit was filed. The appellee is so obviously estopped to question the validity of this lease, on account of having ratified it in writing four times, that we should not concern ourselves as to whether the last brief is too limited in scope as to permit a consideration of the question of whether he is estopped to question the lease because of having thus ratified it, or whether he has merely ratified it, because *Page 407 he has estopped himself by both his conduct and written assent to now assert the contrary. I respectfully submit that it is too highly technical for the Court on this suggestion of error to hold the appellant strictly to the observation made in the forefront of its brief thereon where it is said that the discussion would be directed solely to the question of ratification, in view of the discussions of an estoppel which later appears under Points V and VI, and especially in a case so barren of merit as not to justify an affirmance on any ground.
In the sixth paragraph of the controlling opinion on the suggestion of error it is assumed that the appellant in its original brief had invoked "the law of agency, by which to determine the validity of the lease." And the opinion states that: "We, therefore, did them no injustice in meeting them on the ground, and using the weapon, selected by them — the law of agency — for the (former) decision of this branch of the controversy." The quoted observations were made upon the theory that the contention of the appellant that the appellee had ratified the lease "presupposes" that G.B. Travis had undertaken to act as agent in executing the lease, and I understand that the writer of that opinion does not mean that any question of the law of agency was ever discussed by the appellant, since its position is clearly set forth throughout its briefs that G.B. Travis was acting in his own right as owner of the land and was not purporting to act for anyone else, when he executed the lease, and received and kept the cash consideration and the annual rentals thereon, without feeling under any obligation to even mention the same to his daughter or account to her therefor. I, therefore, submit, with the utmost deference, that counsel for appellant are not being met "on the ground, and using the weapon, selected by them — the law of agency . . ." Moreover, the affirmance of this case overlooks the fact that without regard to any question of principal and agent a person may ratify a lease executed by another on his land without authority, *Page 408 where he accepts and retains the benefits accruing under the lease with full knowledge of the facts, as was done by the appellee in the instant case, because he is estopped in a court of equity to assert that he has not thereby ratified and adopted it as his own; and that he may also become estopped to question the validity of such a lease because by his conduct in regard thereto he cannot assert in equity that he has notratified it.
In the discussion of the statute of frauds, Section 264, Code 1942, found in the controlling opinion on the suggestion of error, it is said that "the appellant makes no claim that there is any written instrument, or writing of any character in this evidence, that complies with this statute. The only written instruments in the evidence that could be said to remotely bear thereon is the appellee's endorsement of the names of his father and mother to the delay rental checks and the receipts issued to the appellant therefor, which set forth the fact that the checks were issued in payment of delay rentals under the lease executed by G.B. Travis." Responding to these observations, it should be said first that no reference whatever is made by the appellant's counsel to the statute of frauds for the reason that they evidently did not consider that such statute has any application to the issues involved in this case. But, if it can be said that it does apply, then, in the second place, it should be observed that the written instruments in evidence not only "set forth the fact that the checks were issued in payment of delay rentals under the lease executed by G.B. Travis," as stated in the controlling opinion now rendered, but they expressly state that the checks are given in annual renewal of a specific lease, giving its date, the parties thereto, and the quantity and location of the land as hereinbefore stated; and in my opinion there can be no question but that these instruments are amply sufficient under the statute of frauds to constitute a renewal of his lease by the appellee, twice as representing the lessors and twice while acting in his own right. *Page 409
It is to be noted that no attempt is made either in the former controlling opinion or in that on this suggestion of error to distinguish the case at bar from that of Merchants Manufacturers Bank et al. v. State, 200 Miss. 291,25 So.2d 585, hereinbefore cited, wherein Mrs. Marie J. Black, as owner of the land, had signed neither a lease nor a memorandum in writing relating thereto, and where it was expressly held by this court that nevertheless she could not accept the delay rentals without ratifying the lease given without authority by another on her land. Nor has the case of Koenig v. Calcote, supra, been successfully answered on the issue of ratification.
And it is said in the controlling opinion on this suggestion of error that "whether the apellee knew that a portion of the land embraced in the lease executed to the appellant by his father, G.B. Travis, belonged to him when he cashed the delay rental checks given his father and mother in accordance with the lease, was a question of fact for the decision of the court below." That is true, but when the proof is conclusive, as here, that he did know that the land in question was embraced in the 270 acres mentioned in the face of these checks, the finding of fact by the Chancellor to the contrary should not be controlling. If it is controlling under such circumstances, then an appellate court is without power to prevent a litigant's property from being taken from him in disregard of both the facts and the law.
The recitals in this opinion as to what the record discloses in this case, hereinbefore set forth, can not be successfully challenged; and this being true, I respectfully submit that no opinion has been, or can be, written that will justify the affirmance of this case. *Page 410