Gambrell Lumber Co. v. Saratoga Lumber Co.

87 Miss. 773 | Miss. | 1905

Truly, L,

delivered the opinion of the court.

. Notwithstanding the fact that the decree pro confesso and judgment final were" taken in the court below by reason of the default of the defendant in failing to file an answer .to the.bill of complaint, we find ourselves unable to sustain the decree rendered in this cause. The bill of complaint states no cause of action. It cannot be saved by the contention made by the counsel for appellee that it is sanctioned by Code 1892, § 499. The right to confirm titles is granted by that section only to “the owner in possession of any land, or the owner thereof who may be out of possession, if there be no adverse occupancy thereof.” Manifestly this bill is not within the purview of that section. It not only does not contain any allegation that the complainant is in possession of the land, or that, being out of possession, there is no adverse occupancy of the premises in question, but it negatives both propositions. The final prayer of the bill is that “a writ of possession be issued in favor of complainant against said defendant for the possession of the aforesaid property.” This averment, of course, implies, not only that the defendant is in the possession of the property, but that this occupancy is adverse to the claim of the complainant.

Nor can the bill of complaint be maintained under the pro: vision of Code 1892, § 500. That section gives the real owner the right to file a bill only in a case “when a person, not the rightful owner of any real estate, shall have any conveyance or other evidence of title thereto, or shall assert any claim or pretend to have any right or title thereto, which may cast doubt or suspicion on the title of the real owner.” If such suit results in favor of the complainant, the judgment final is that the conveyances or other evidences or claim of title shall be canceled, and the cloud, doubt, or suspicion removed from the title. But, to maintain a suit under the provisions of that section, it is necessary that the bill of complaint show the perfect fairness of complainant’s own title; but it must also show the invalidity of his adversary’s claim. The bill of complaint in the instant case is lacking in both respects. It contains no definite and specific statement of facts showing that it has a perfect legal or equitable title to the land, and it is lacking in precision and clearness in its charge of the invalidity of appellant’s claim. It avers that both parties “claim title to said land by and through a common source from Mrs. Julia M. Eandall.” But the attempted deraignment of complainant’s title shows affirmatively that a fatal infirmity adheres thereto. The exhibits to the bill of complaint specially made part thereof show that the substituted trustee had no right to make any sale under the provisions of the trust deed. There is not only a conflict between the recitals of the bill of complaint and the recitals in the refusal of the original trustee to act and the reasons given for the substitution in the instrument appointing the substituted trustee, but it also plainly appears that the substituted trustee was in fact appointed before there had been any refusal on the part of the original trustee to act, and, so far as the record shows, before there had been any demand upon him to take action.

A suit may be brought, under the terms of Code 1892, § 500, to cancel and remove a cloud upon any valid title to land, whether such cloud be cast upon the perfect title by recorded instrument or by mere assertion of unknown, but hostile, claim. Cook v. Friley, 61 Miss. 1. But when, as in the instant case, there is a distinct admission of deraignment from a common source, such admission necessarily conveys the idea that complainant is advised of the nature and character of the adverse claim asserted by defendant. In such state of case, if the claim be a particular muniment of title, it must be specifically referred to. But, whatever the character of the hostile claim asserted, if known to the complainant, the facts demonstrating its invalidity must be set out. In such case mere general allegations of fraud and simulation are not sufficient.

The decree is reversed, the decree pro confesso vacated, and the cause remanded.