Beaman v. Beaman, 44 So. 987

Beaman v. Beaman

44 So. 987 | Miss. | 1907

Caljioon, J.,

delivered the opinion of the court.

Without especial consideration in detail of the various grounds of demurrer so ably argued, it is plain that appellant’s case is without life if Mrs. Joanna Beaman, wife of Charles Beaman, could not buy, either for cash or on credit, at the' *766sale by the trustee in the trust deed of Alexander Beaman, the ancestor. Charles Beaman was a cotenant, and, with his wife, was in actual possession of the land when his father died and when the trustee sold and she bought. If he had bought, the purchase, subject to what he paid in satisfaction of his father’s debt, would plainly have inured to the benefit of all the cotenants, and himself as one of them. Smith v. McWhorter, 74 Miss., 400, 20 South., 870; Walker v. Williams, 84 Miss., 392, 36 South., 450; Wyatt v. Wyatt, 81 Miss., 219, 32 South., 317. The inability of a cotenant to buy for himself or herself is based on grounds of public policy. On the same grounds of public policy, the husband or wife cannot so purchase. Robinson v. Lewis, 68 Miss., 69, 8 South., 258, 10 L. R. A., 101, 24 Am. St. Rep., 254; Clark v. Rainey, 72 Miss., 151, 16 South., 499; Hamblet v. Harrison, 80 Miss., 118, 31 South., 580. It cannot affect this conclusion that it is held in Means v. Haley, 86 Miss., 557, 38 South., 506, that the wife of the selling tax collector may buy at a tax sale. This involves no question of cotenancy of the tax collector or the purchaser.

The fact that the law emancipating women, and giving them the same rights as men to acquire and hold and sell property, is of no avail to Mrs. Beaman. Her husband had the same right. The law of emancipation gives her no right superior to his; but neither he nor she, being his wife, could acquire adverse rights hy purchase, because it is in contravention of public policy. Tender is unnecessary. The bill does not seek to stop any procedure, but recognizes the rights of Doty, the assignee, who must, of course, be protected.

Affirmed and remanded, with leave to answer within thirty days after mandate filed below.