Alsworth v. Cordtz

31 Miss. 32 | Miss. | 1856

Eisher, J.,

delivered the opinion of the court.

This was a bill filed on the chancery side of the Circuit Court of Madison county, the object of which was to divest the legal title to a tract of land, purchased by the appellee, Cordtz, in 1843, under an execution against one Robert W. Briscoe, and to vest such title in the complainant, he claiming to have a complete equitable title..,

The facts are briefly these: John Briscoe, in 1834, sold to the-complainant a tract of land, containing over three hundred acres. A small portion of this tract, 40i«> acres, was entered in the name-of Robert W. Briscoe, son of John Briscoe, in 1833, with the money of the latter. John Briscoe made a deed with general warranty to the complainant, and received from him the full amount of the purchase-money. It is further averred that the complainant immediately went into the possession of the said land; Robert Briscoe, the son, knew of the sale, treated the land as his father’s, and never made at any time any objections to the sale. In 1838, a judgment was recorded against Robert W. Briscoe, under which the land was sold in 1843, and purchased by Cordtz, as above-stated.

It is said that the land having been entered by the son, in his-own name, with the money of his father, a trust resulted in favor of the latter. This is true as a general rule. But the father proves that it was his intention to make the entry in the son’s name, inasmuch as he, the father, had already entered as many forty acre tracts in his own name as he was allowed to enter under the act of Congress. This disposes of the question as to the resulting trust. It is manifest that it did not exist.

But the complainant, on another ground, is entitled to relief. Robert W. Briscoe, stood by and saw Ms land sold, and Ms father receive the money from the purchaser without objecting to the sale, or making known his title. He .must, therefore, be treated in the same manner as if he had made the sale and received the money himself.

It is however said, that he was then a minor, and could not bind himself any more by his silence than he could by his contract— grant it. We must presume that he had arrived at majority before the judgment was recorded against him, and that knowing of the sale, and approving the same before judgment, it would be treated as his own sale, made at the time it was consummated by his father. Under this view of the case, nothing remained in Robert W. Briscoe but the naked legal title to the land, at the date of the judgment; and the complainant’s equitable title being then complete, and his possession notice to the world; his title ought to prevail over the legal title.

Decree reversed, and decree in this court for complainant.

A petition foi* a re-argument was filed, upon the ground, that •it appeared that Robert M. Briscoe was an infant at the date of the rendition of the judgment against him. The court overruled the petition, holding, that if the fact were so, it could not affect the result, as infancy is a personal privilege, and cannot be set up by the defendant to defeat the title of the plaintiff in error.