77 Miss. 433 | Miss. | 1899
delivered the opinion of the court.
The reversal by this court of the decree appointing Michael McManus trustee, was a reversal as to all the parties, since in its nature the ground of reversal was not separable or several, and the reversal was in fact entire and unqualified. This court held that the appointment of the substituted trustee was void, and, if void, of course the sale by him was void. The appellant was treated as dead, and not represented on the appeal to this court, or on the hearing before the commissioners after the case was remanded. She was not required by the decree to pay any part of the $1,300 charged as a lien on the land set out in the bill. Throughout all these proceedings she was treated as dead.
Appellee bought from John and Patrick Coffin, at private sale, for $1,500, instead of buying at a sale made under the decree, or buying the decree, and having it assigned to himself. As we understand the bill, it is alleged on information and belief that $1,300 were paid to Elizabeth Murphy to satisfy the decree, she, in consideration of such payment, conveying the property to John and Patrick Coffin. Pifty dollars were paid
But it is not shown, as pretended, that appellant was a party to said purchase and sale, nor that the attorneys represented her in any way, directly or indirectly; nor that she received a dollar from the sale. It was simply and purely a private sale by the two Coffins to appellee.
We do not think any such laches are averred, under all the circumstances, as estops appellant. There is no affirmative fraudulent conduct of the minor averred. There is no allegation of anything which ought reasonably to have had the effect of misleading the appellee. It was easy for him to have ascertained the true state of the case by the exercise of the most ordinary care.
All that is said as to the law of subrogation is unavailing, because of the facts averred in the bill. It appears that the appellee never bought under the decree, never bought the decree, never paid off the decree, but just simply bought the property at private sale from the two brothers for $1,500, and they satisfied and discharged the decree long prior to the institution of this suit, in accordance with- the terms of the decree directing them to satisfy it. That decree was not against this appellant. 'She was under no duty to pay it, or any part of it, and appellee, as to her, is a pure volunteer. He was no party to the suit — there was no decree against him. He had no lien on or interest in the property prior to his purchase, and he was under no sort of obligation to pay off this decree. It seems evident enough that he bought supposing the Coffin brothers to be the sole owners, Avhich error he would have escaped by the exercise of reasonable prudence and inquiry. The fact that he paid full value and bought in good faith cannot supply the lack of title in the two brothers, grantors, to appellant’s third interest-in the property. That title can be divested only by due process
If the appellee be a purchaser in good faith entitled to recover for valuable, permanent, not ornamental, improvement, that relief can be fully afforded him in the ejectment suit at law.
The decree is reversed, the demurrer sustained, and the hill dismissed.
