Gibbs v. McGuire

70 Miss. 646 | Miss. | 1893

Cooper, J.,

delivered the opinion of the court.

It is unnecessary to consider several important and interesting questions argued by counsel, for, whatever might be the conclusions reached upon them, the insufficiency of the plaintiff’s title is so evident that but one result can be reached, which is to affirm the judgment of the court below. In the chain of title, the plaintiff produced and relied upon a conveyance of title by a writing not under seal, executed on the twentieth of January, A.D. 1880, some nine months before the code of 1880, -by which seals were abolished, became operative. The instrument was executed by the maker in the state of Texas, by whose laws, it is said, seals were not required to deeds, and this fact is suggested as explanatory of the failure to seal the conveyance on which the plaintiff relies. The rule that a conveyance of land must be made according to the lex rei situs is recognized by counsel, who seek to avoid the consequence of the absence of the seal by the suggestion that by the code of 1880 the use of private seals was dispensed with, and all distinction between sealed and unsealed instruments, made by private persons, either as to rights conferred by them or the remedies on them, were abolished. Code 1880, § 993.

Counsel’s position is that the instrument is not a nullity, but is effectual to convey a complete, equitable title, and that all-else is a mere question of remedy, and that, since, by the section of the code referred to, all distinction of remedy was abolished, the plaintiff may recover at law, as well as in. equity, upon the right given by the instrument.

While the power of the legislature to have so legislated as to give effect to unsealed conveyances according to the intention of the parties is admitted, we find no evidence of any such purpose in the law. It does not declare a rule for the past, but for the future, and, having abolished the use of seals, it, at the same time, abolished those distinctions which had. previously existed in reference to remedies which rested upon the existence of seals. But there is nothing to indicate that a different effect was to be given to an instrument previously executed than it had at the time of its execution. The one introduced by the plaintiff was confessedly insufficient to convey the legal title to land when it was made. Alexander v. Polk, 39 Miss., 737. And the plaintiff suing in ejectment at law must recover upon a legal title. Thompson v. Wheatley, 5 Smed. & M., 499; Wolfe v. Dowell, 13 Ib., 103; Torrance v. Betsy, 30 Miss., 129; Heard v. Baird, 40 Ib., 793; Lockhart v. Camfield, 48 Ib., 470.

Judgment affirmed.