70 So. 548 | Miss. | 1915
delivered the opinion of the court.
This action was instituted by appellee as complainant in the court below. Appellee seeks to cancel a commissioner’s deed executed by a special commissioner of the chancery court to appellants in pursuance of a decree granted appellants in a ease foreclosing a certain deed of trust held by them against I. W. P. Mitchem and wife, father and mother of appellee. The Mitchems executed á trust deed to appellants on forty acres of land in Lauderdale county, claimed and herein sued for by appellee. On foreclosure of this trust deed in chancery, appellants bought in the land. Appellee was not a party to the foreclosure suit, and now questions the title of appellants.
The point" relied upon by appellants is the averment and contention that appellee is estopped to deny the validity of appellants’ trust deed and their title claimed there
The testimony of Mose Rosenbaum, a member of appellants ’ firm, is conclusive against appellants on the question of estoppel. It is shown that there were no conveyances of record reflecting the ownership of this land; that appellants admit they madé no effort to find out in whom the title stood; that Mr. Mitcham represented that it was his land, and they relied upon his statement; that they did not examine the records of the county or make any other investigation to ascertain who the real owner was; that Mrs. Blackwell was not present when-the trade with Mitcham was made; that appellants had no knowledge of the void deed executed to Mr. and Mrs. Mitcham; and that appellants had no dealings with appellee whatever. They, therefore, in no wise relied upon anything that appellee did or failed to do. Our court has uniformly drawn a distinction between mere silence and active encouragement. So far as appellants knew, Mr. Mitcham had not been invested by appellee with, any indicia of ownership. Appellee did not request Mr.
. 'Affirmed.