French v. McAndrew

61 Miss. 187 | Miss. | 1883

Cooper, J.,

delivered the opinion of the court.

We concur in the finding of the Chancellor, that Mrs. McAndrew was entitled to the cancellation of the conveyances made by her during minority. The effect of the disaffirmance by her is to render the conveyance void ab initio by relation, and to entitle her to charge the purchaser for rents during the whole time that he occupied the property, claiming under her deeds. Wustar v. Tropfield’s Heirs, 15 Gratt. 329 ; Tucker v. Moreland, 10 Peters 71; Moore v. Jones, 24 Ala. 420. But the defendant by the conveyances acquired the title of Mrs. Hubbard, who was the co-tenant of the complainant, and thus became co-tenant with her, and his liabilities and rights are therefore to be tested by the rules governing co-tenants.

The objection urged by counsel for the appellant, that he has been charged with rents of the property on the ground of his possession of the common property, is not sustained by the facts, for it is affirmatively shown that his possession was a remunerative one, and where one co-tenant occupies and uses the whole estate or more than his share thereof to the exclusion of his co-tenant he is liable to an action for an account by the co-tenant, who has been kept out of the use of his portion of the estate.

Mrs. McClure, one of the grantors in the conveyances to French, was the widow of Powell, from whom the complainant took the land in controversy by descent. As such widow, she was entitled to dower in the lands, and by her conveyance this right, in equity at least, passed to the defendant. 2 Scribner on Dower 45, and authorities there cited. The widow cannot now say that she does not claim and never claimed her rights as doweress. By conveying, she asserted some claim to the property, and whatever right she had, passed to the purchaser. While she was owner of the dower right she might have released it to her daughters, but having assigned it to another, she cannot now waive what is his and not hers.

The record does not show the date of the appointment of the administrator of Powell, and we are,unable to say whether the judgment in favor of Houston was or was not a charge upon the lands. If it was, and was paid off by the purchaser as a part of the price agreed to be paid for the lots, he should be allowed a credit for the amount in the accounting.

The tax title set up by the defendant was void. There was no authority in law for a sale of lands in 1876 for the taxes of 1874. There is no admission here, as there was in Hucke v. Chrisman, 60 Miss. 671, that the statement of the year for which the taxes were due was misrecited by clerical error.

The court erred in decreeing the amount found due to the complainant from the defendant to be a lien on his interest in the land. The complainant is a creditor of the defendant for any amount which may be found due her on the account, and for such sum she is entitled to a general decree against him, but to be enforced and collected as are other decrees for Other debts. Her demand is not more meritorious than that of any other creditor, and she occupies no more favorable attitude than any other person having a legal demand against the defendant.

Judgment reversed.