Baker v. Richardson

50 So. 447 | Miss. | 1909

Mayes, J.,

delivered tbe opinion of tbe court.

By an instrument bearing date October 11, 1859, signed, acknowledged, and delivered on tbe 18tb day of October, 1859, recorded in Adams county on tbe 31st day of October, I860,, and in Bolivar county on tbe 6tb day of December of tbe same' year, Amos Alexander, tbe common source of title, made wbat we bave no hesitation in declaring to be a.deed, conveying to bis daughter, Eliza Jane Gray, a certain tract of land therein described “for and during her natural life, and then to her children, if any, and in default of children or child then to' bis lawful heirs forever.” Tbe language of this deed is so. plain in its declaration that only a life estate was conveyed' thereby that none but tbe willfully blind could bave been deceived by it. In default of any child or children being born to Mrs. Gray, the" grantor in tbe deed declared that it should be tbe property of bis lawful heirs at tbe death of Mrs. Gray ;■ and since she bad no children, and the complainants are tbe lawful heirs of the grantor, and Mrs. Gray died in 1906, the declared purpose of tbe deed should be carried out, and tbe lawful heirs of tbe grantor should bave this property, unless there has been some intervening cause diverting the title from tbe parties to whom it was originally deeded and thwarting the intent of Amos Alexander when be made tbe deed. All moral right is with tbe complainants in this bill, and they should and shall prevail, unless some rule of law compels a decision otherwise.

It is manifest from tbe record that all intermediate titles to this land, now claimed and asserted by any party to this record, were taken in subserviency to tbe deed made by Amos-Alexander to Mrs. Gray. This being tbe case, no outstanding title can be set up to defeat tbe just claim of tbe complainants as owners of tbe land, whether tbe party attempting to' set up such outstanding title asserts it as owner, or merely attempts to show that it exists and is owned by another. In the case of Cooper v. Fox, 67 Miss. 237, 7 South. 342, where a petition was filed for partition, this court did say that, if the petitioners failed to show that they had title by reason of the fact that there was an outstanding valid title held by another, such want of title would be fatal to their suit; but the decision •of the court in that case was based on facts which showed that the parties setting up the outstanding title never claimed the land in subserviency to the common source, but in hostility to same at the very time that possession was taken by the adverse claimants. The same policy of the law which prevents one tenant in common from buying up and successfully asserting as his ■own an outstanding title against his co-tenant appertains when ■a co-tenant seeks to defeat another co-tenant in any right which he may undertake to assert, by showing the true title in another.

The decree of the chancery court is reversed and the cause remanded. Reversed.