45 Miss. 397 | Miss. | 1871
Rebecca D. Yan Allen, administratrix of the estate of Stephen Yan Allen, deceased, instituted suit at the June term, 1866, of the circuit court of Franbiin county, against "W. S. Cassedy and H. Cassedy, on a promissory note made by them in favor of said decedent for the sum of $1,674 83, dated August 25,1860, and due at that time.
To this action the defendants appeared and pleaded the general issue, non asswnpsit, and appended thereto a notice of various matters of defense to be given in evidence under this plea on the trial of the cause, and also two special pleas, substantially as follows: The first alleges that the note sued was given in consideration of the sale of a pretended title to certain lands therein described, by the plaintiff’s intestate to the said W. S. Cassedy, which were, at the time of the sale and execution of the deed of conveyance, in the adverse possession of one John Sample, who, before that time, then and ever since, held the said lands under claim and color of title, adverse to that of the grantor, and that, therefore, the said sale and conveyance were illegal and void, and furnished no valid consideration for the note sued on in this action. The second alleges that the note sued on was given in consideration of a deed of certain lands with a covenant of seizin therein, executed by the plaintiff’s intestate to the said W. S. Cassedy, and that, at the time of the execution and delivery of said deed of conveyance, the said lands were in the adverse possession of John Sample, under claim and color of title adverse to that of the grantor, and that, therefore, the covenant was broken at the time of the execution of the deed, and that the consideration of the note has wholly failed.
And to the second special plea the plaintiff replies, and in her replication denies all and singular the allegations and matters therein alleged.
The plaintiff’s demurrer to the first special plea was sustained by the court on the ground that the plea does not allege that the adverse possession therein set forth was known to the grantor at the time of executing the deed, and leave was granted to the defendants to file additional pleas.
The defendants then filed three additional special pleas in bar, which, though differing in phraseology, are substantially the same as the first of the above stated special pleas, with the exception that the first two of these pleas contain the additional allegation that the grantor, at the time he executed and delivered the deed of conveyance, knew of the adverse possession of the lands specified in the deed, by John Sample. These pleas were demurred to by the plaintiff, and the record shows no disposition of these demurrers.
At the September term, 1868, of said circuit court, the defendants, by leave of the court, filed an additional plea, denying the authority of the plaintiff as administratrix, as stated in the declaration, to prosecute the suit, and allege that, although the probate court of said county at the October term thereof, 1866, appointed the plaintiff and her husband, Moses Jackson, administrators of the estate of said Yan Allen, deceased, and they gave bond in accordance with the statute, and letters of administration were granted them, yet neither the bond nor letters of administration had the revenue stamp affixed as required by the acts of congress, and the defendants aver that the estate of said Yan
The defendants admit, in their rejoinder, that the plaintiff, Rebecca E. Yan Allen, was appointed before the commencement of this suit, by the probate court of Franklin county, at the May term, 1862, administratrix of the estate of Stephen Yan Allen, deceased. An entry of the said probate court at the October term, 1866, recites that Moses Jackson, having intermarried with Rebecca E. Yan Allen, the administratrix of the estate, of the said Stephen Yan Allen, deceased, since her qualification as such administratrix, it is, therefore, ordered that the said Moses Jackson and Rebecca E. Jackson execute a new bond, according to the statute. This was evidently intended by the probate court as a compliance with the statute, which provides that, if any administratix shall marry, her husband shall give bond as in case of the marriage of an executrix. Rev. Code, 440, art. 67. It was necessary that her husband should give the bond in order to prevent his wife from being removed from the administration, and the error of the court in requiring her to join in the bond does not affect her rights as administratrix, nor deprive her of authority, in conjunction with her husband, to prosecute this suit.
The correct practice requires that issues of law should be disposed of by the court before proceeding to the trial of issues of fact by the jury ; and it has been repeatedly held to be error to proceed to the trial of the issues to the country without making any disposition of the demurrers. Harper v. Bondurant, 7 Smedes & Marsh. 397; Mayfield v. Barnard, 43 Miss. 271. The second assignment of error is well taken.
We will now proceed to the solution of the important question presented by the first assignment of error, as to the effect of adverse possession upon the deed of conveyance in the case under consideration; and it may be observed that, as we have no statute against maintenance and
Lord Coke says, “That for avoiding maintenance, suppression of right and stirring up of suits, nothing in action, entry or re-entry can be granted over; for so, under color thereof, pretended titles might be granted to great men, whereby rights might be trodden down, and the weak oppressed.” Co. Litt. 214 a. This doctrine was founded upon .a state of society which does not exist in this country ; and so far as it relates to choses in action, exists now merely in name.
It was enacted by 32 Henry VIII, ch. 9, “That no person shall bargain or sell, or by any means obtain any pretended rights or titles, or take, promise, grant, or covenant to have any right or title to any hereditaments, unless the
In the construction of this statute, it has been held that, in an action against the buyer of a pretended title, it must expressly appear that the defendant knew that the seller had not been a year in possession. 6 Bac. Abr. 416.
This statute, which has been re-enacted, substantially, in most of the states and adopted as the common law of others, was not passed for the purpose of making void sales of land where the land was held adversely to the vendor, but to punish the parties concerned in it; the penalty being the whole value of the- land. In a decision upon this statute, Montague, C. J., says:' “In this point the statute has not altered the common law; for the common law before the statute was, that he who was out of possession ought not to bargain, grant or let his title ; and, if he had done so, it should have been void; and then the statute was made in affirmance of the common law, and not in alteration of it; and all that the statute has done is, it has added a greater penalty to that which was void by the common law before.” Patridge v. Strange, 1 Plow. 880; Dexter v. Nelson, 6 Ala. 68.
It has been often decided, and we think correctly, that if a person sell land, held at the time adversely by another, the sale is not a valid consideration for the promise to pay the purchase-money, the sale being a species of maintenance, and void on general principles of law and public policy. Whitaker v. Cone, 2 Johns. Cas.; Marten v. Pace, 6 Blackf. 100; Williams v. Jackson, 5 Johns. 489; Gibson v. Shearer, 1 Murph. 114; Bledsoe v. Little, 4 How. 13, 24.
In the state of New York, under a statute similar to that of the 32d Henry VIII, it was held, that if a person out of possession conveys to a stranger land held adversely by another, the conveyance is void, so that the stranger cannot maintain an action upon it; and it is not material as to the operation of the deed, that the knowledge of the adverse possession should be brought home to the parties, though it might be material if either of them were prosecuted for the penalty given by the statute against selling pretended titles. Lathrop v. Demont, 9 Johns. 55. And in Slywright v. Page, it was considered that the deed might be void and
In an action of debt for the penalty under the above-men - tioned statute of New York, it was held, that the statute intended to punish persons for selling pretended rights to land for the purpose of maintenance; and when it is evident that intention did not exist, there can be no offense. A contrary argument may be derived from the statute,. which subjects the buyer to the same penalty as the seller, if he knew the sale to have been made against the provisions of the act, indicating that, if the purchaser did not know it, he should not incur the penalty; and, as the statute is silent as to the knowledge or ignorance of the seller, it may be inferred that the legislature intended to punish him, without regard to that fact, on the ground that he is chargeable with the knowledge of the state and circumstances of his own lands. It would be the legal intendment, undoubtedly, that every man knew the situation of his real property. But if he could show that he did not know it, it would be very unreasonable to subject him to a penalty for an offense perfectly unintentional. The deed, under such circumstances, would be void and inoperative, and there is no good reason why an innocent person, unconscious of offense, should be punished beyond that. Kassenfrats v. Kelly, 13 Johns. 466. And with regard to the vendor’s knowledge of the condition of his property, it has been repeatedly decided, that a person who sells and conveys land without the knowledge that there is a subsisting, adverse possession, is not liable to the penalty of the statute for selling a pretended title, but the seller of the land is, in the first instance, to be presumed to be cognizant of the situation of it. 2 Caines, 183; 2 Johns. Cas. 59; 7 Johns. 251; 8 ib. 227; Lane v. Shears, 1 Wend. 493; Etheridge v. Cromwell, 8 ib. 629.
The English statute of the 32 Henry VIII, ch. 9, though
When it is said that the deed is valid as between the grantor and grantee, though void as to the adverse holder, it must mean that the deed would inure in favor of the grantor by way of estoppel only. Kent says: “As the conveyance in such a case is a mere nullity, and has no operation, the title continues in the grantor so as to enable bim to maintain an ejectment upon it; and the void deed cannot be set up by a third person to the prejudice of his title. But, as between the parties to the deed,- it might operate by way of estoppel, and bar the grantor.” 4 Kent’s Com. 448.
The doctrine generally held upon the subject is simply in accordance with the civil law, which “forbids a thing that is litigious to be alienated.” And the well-settled rule is, that, where an attempt is made to convey land which is held adversely to the grantor, the title to the land is not affected by the transaction. Barry v. Adams, 3 Allen, 493; Loud v. Darling, 7 ib. 206; Kincaid v. Meadows, 3 Head, 192; Dabb v. Baird, 3 Call, 475; Meredith v. Kennedy, 6 Litt. 522; Shortall v. Hinckley, 31 Ill. 219. Of course, a conveyance of land by the owner, while a willful trespasser is in possession of it, is valid. Bowie v. Brahe, 3 Duer, 35.
This is the common law as to the effect of adverse possession upon conveyances of real estate. But it has been the policy of modern times to remove all restraints from the free alienation of property. And in pursuance of that policy the statute of 1857 provides that any interest in, or claim to, real estate may be disposed of by deed or will, and livery of seizin shall not be necessary. Rev. Code, 306, art. 1. This changes the rule of the common 1'aw above discussed upon this subject, and removes all restraints upon the alienation and transfer of real estate, so as to enable any one having an interest in or claim to land, to convey the same notwithstanding the land may be in the adverse possession of a third person claiming the same under color of title. •
In this state the form of conveyance is very simple. It is usually by bargain and sale, which, by operation of our statute, transfers the possession of the bargainor to the bargainee, without the necessity of livery of seizin or reference to the statute of uses. We have no law here against champerty or maintenance, which, as has been seen, prohibited a right of action from being assigned or purchased. But, as has already been observed, the reason of the ancient common-law doctrine does not exist here, nor does the common rule upon this subject exist in England. There the rights of entry were made alienable by deed, by the statutes of the 8 and 9 Yictoria, ch. 106. Here, where the execution and delivery of a deed consummates a conveyance, without livery of seizin on the one hand, or entry on the other, there
On the whole, then, we think we are safe in concluding that a conveyance by a person who has a legal claim to land, held adversely by another, is valid. The ancient idea that litigation is thereby encouraged is utterly without foundation. An action by the vendee would do no more harm than an action by the vendor.
Por the second and fourth errors assigned the judgment will be reversed and the canse remanded.