43 Miss. 52 | Miss. | 1870
The plaintiff in error was sued on a promissory note by Sellers and wife, and gave notice that under the general issue, testimony would be offered to prove that Mrs. Sellers sold and conveyed her dower, interest or title, to defendant’s intestate; that she had no title to the lands, nor any dower, title or interest, and that therefore the note was void. The defendant offered in evidence, the deed of Mrs. Sellers (then widow Kinnison), to the intestate, which deed contained general covenants of warranty, and proposed to prove that in point of fact Mrs. Sellers had no title to the lands as dowress; and the court below excluded all the proposed evidence from the jury.
And that is assigned as one of the errors of the circuit court. The entire defense proposed to be made is disclosed in the notice with the plea. The evidence offered covers the same ground.
It is not pretended that the intestate; who purchased from Mrs. Sellers, did not know the nature of her title, or that he was induced by her fraudulent misrepresentations, to make the purchase. ‘
The deed offered in evidence is a conveyance of all the right, title and interest of the grantor. For all that appears, the grantor was about to assert her claim to the lands, and the deed was accepted and the notes made, to quiet the title of the vendee, in possession, and to avoid the expense and risk of litigation.
The acknowledgement imparts no validity to the indenture, as a deed. It is one of the conditions precedent to its registration. Registration only gives notice to subsequent “purchasers and creditors.
In Vick v. Percy, 7 S & M., 268, a bill was filed to rescind, on the ground of “ fraud in concealment of the aspect of the title,” and “ insolvency of the vendor’s estate.” The answer denied these averments. The court laid down “ the principle as fully established, that in cases free from fraud, a purchaser of land in possession, cannot have relief in chancery against his contract to pay, on mere ground of defect of title without previous eviction.”
If “ fraud and imposition ” be practiced on the vendee, it may be reason to rescind; for fraud vitiates everything. Anderson v. Lincoln, 5 Howard, 284. Defect of title, without eviction, when the vendee was in possession, of itself, is no ground to relieve against the purchase money. Bumpas v. Platner, 1 John Ch. Rep., 213; Abbott v. Allen, 2 John Ch. Rep., 519.
Again, in Gilpin v. Smith, 11 S. & M., 129, “ If the sale was not fraudulent, and there has been no eviction, the vendee must rely on the covenants in his deed.” The current of decision is found uniform in our books of reports, finding its last iteration in the case of Winstead v. Davis, 40 Miss. R., 786, which was an action at law on the notes for the purchase money.
2. The second error assigned is that the judgment is informal and insufficient.
It has been the doctrine of this court since the case of
Guice was sued as administrator, and the recovery was against him in that capacity. Execution de bonis propria could not emenate on this judgment. It would have followed the “ line of safe precedent,” and we would by no means encourage a departure from it, to have added: “ To be levied of the goods and chatties of his intestate, N. Kinnison, in his hands to be administered, ” etc. But the judgment being against him as administrator, necessarily on such judgment, the execution must go out against him as administrator, and be satisfied of the goods of his intestate.
Let the judgment be affirmed.
