Fink v. Henderson

74 Miss. 8 | Miss. | 1896

Whitfield, J.,

delivered the opinion of the court.

Appellee’s quitclaim deed invested him with the title to the

land, and, as a necessary incident thereof, with the right to make any defense to the bill to confirm the tax title asserted against these lands which the grantees in such deed could have made. The grantors, if the statements of the amended petition, the demurrer to which was overruled, be true, were the “unknown nonresident owners of the lands, ’ ’ and, as such, parties defendant, by publication, to the bill; and their deed to appellee not only invested him with such title, but operated as an assignment to him of all rights of action or defense growing-out of such title and ownership of said lands which had theretofore belonged to the grantors (assignors). The word “defendants,” in §§ 519 and 520, code 1892, must be reasonably construed to embrace not only the “defendants ” to the record, but all who succeed to their rights by assignment. The policy of our laws has been, increasingly, to facilitate the transfer of property by assignment and otherwise, and to invest assignees fully with all the remedies had by their assignors. Neither the general policy of our legislation touching the assignability of rights or choses in action, nor the manifest purpose of these particular sections, warrants the narrow construction that the right to reopen such decrees, passed on proof of publication only, against nonresident or unknown defendants, within the time prescribed, is to be limited to those only -who are parties defendant to the bill, either known and named or unknown and unnamed, and proceeded against by publication as unknown. Appellee’s grantors were, according to the allegations admitted by the demurrer, owners of the land at the time of the filing of the bill, and made appellee a deed before he filed his petition asking to be allowed to reopen the decree and file an answer. We think he was, by this deed, invested with all the rights of action or defense that the several heirs theretofore had, quite independently of the written assignment of February 6, 1895. As illustrative of the liberal policy of our jurisprudence on this subject, see § 2433, code of 1892, permitting the conveyance of land adversely held; Kerr v. Moore, 54 Miss., 286, as to the assignability of a mechanic’s lien and a laborer’s lien, the latter under the act of April 5, 1872 (Acts 1872, p. 131). See, also, code 1871, § 160é (code 1880, § 1379), which provided that the building, etc., should be liable to the “contractor alone,” unlike the code of 1892, § 2699, which provides expressly for the enforcement of the lien in favor of the assigns of the ‘ ‘ person employed;” and Newman v. Bank, 66 Miss., 323, as to assign-ability of landlords’ and laborers’ liens. The action of the chancellor was in accord with these views, and the decree is

Affirmed and remanded.