Holloway v. Miller, 84 Miss. 776

Holloway v. Miller

84 Miss. 776 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

Appellant, for a long term of years, had been, by virtue of several conveyances, in possession of a tract of land including the eighty acres about which this controversy arose. He had cultivated, fenced, erected buildings, and generally improved the same, claiming, operating, and cultivating the same as owner. Under these circumstances he executed a deed to appellee conveying with full warranty of title a tract of one hundred and fifty acres, of which this eighty formed a part. Under this deed appellee entered into possession, used and controlled the same for several years, when he discovered that the title to the eighty acres'had never been divested from the United States government, whereupon, without advising his vendor, he made *779an. entry of the said land as a homesteader, secured his certificate of entry and duplicate receipt, and then made a demand on appellant for the purchase price of eighty acres, and, this being refused, filed suit in the circuit court for the proportionate amount of the purchase price of the entire tract which was represented by the eighty acres. Appellant offered to pay the amount expended by appellee in procuring his homestead entry and such other sums as would necessarily be expended by him in perfecting title to the land. At the conclusion of the testimony which developed the above state of facts the court peremptorily instructed on behalf of appellee that the jury should find for him “in that amount which they believe from the evidence the eighty acres was worth in the total valuation of the one hundred and fifty acres as fixed by the parties at the time of the trade and paid by the plaintiff, and six per cent interest thereon from date of payment,” and refused an instruction for appellant that appellee was “only entitled to recover whatever amount the evidence shows Miller has expended and will necessarily have to expend to perfect his title” to the land in controversy. It was shown by the testimony that the eighty acres in question contained improvements erected by appellant and still thereon at the date when appellee entered into possession, the value of which was variously estimated at from $100 to $200, and there was conflict in the testimony as to what was the relative value of the eighty acres and the remaining portion of the tract conveyed.

The action of the court in instructing the jury to find in appellee’s favor for the entire amount paid for the eighty acres was probably based upon the opinion of this court in Pevey v. Jones, 71 Miss., 647 (16 South., 252; 42 Am. St. Rep., 486). That case can be readily differentiated from the one here presented. There it was held that the grantee in a deed by which it was attempted to convey land of the government, but to whom possession was not actually delivered, was not required to take possession of the public land, or attempt to enter upon it, but that *780a right of action immediately accrued to recover for a breach of the warranty ; and this was not dependent on any future event, but was fixed by the sole fact of the ownership of the land by the government. In that case the grantee acquired nothing whatever as to the land owned by the United States, and for that reason it was held that his right of action for the recovery of the purchase money paid accrued at once upon the execution of the deed. In the instant case appellee did acquire substantial rights by the conveyance from appellant. lie acquired the use and ownership of the improvements on the land. More than this, he obtained that possession which was indispensable to his entry of the land from the government as a homestead. These were valuable rights vested in appellant, and which he could legally transfer and convey to his vendee. Hooker v. McIntosh, 76 Miss., 693 (25 South., 866). Under this state of facts appellee is not permitted to now claim from his vendor the total amount of money which he had paid as the purchase price of the land without first surrendering possession of the land and improvements which he obtained by means of such conveyance.' One cannot enter into possession by virtue of a conveyance, and, taking advantage of some secret defect in the title, procure the outstanding paramount title to the detriment of his vendor, and then sue for the purchase money of land and improvements, from which he had not been evicted and the possession of which he still retained. The rule in reference to breach of warranty is that the warrantor must make whole his vendee for all damages inflicted and for all moneys necessarily expended for the protection of the possession. And the duty of the vendee of the land the title to which fails is stated in Dyer v. Britton, 53 Miss., 278: “The doctrine is that he must deal fairly and in fidelity to his warrantor; that, while he will not be permitted to break allegiance to the title under which he entered and holds possession, yet he shall not be put to the useless expense of a fruitless litigation against an incumbrance or paramount title, which must ultimately prevail, but may, if necessary to pre*781serve the estate and the possession, pay off the one and buy in the other; and for such outlays of money he shall be reimbursed.” One who finds that he has unwittingly attempted to purchase a tract of land the title to which is in the United States government need not wait an eviction, which must inevitably come, but may immediately abandon possession thereof, and institute suit for the recovery of the purchase money paid. But he cannot retain the possession of the land and improvements, and, without notice to his vendor, by virtue of whose conveyance that possession was obtained, vest in himself a paramount title which such possession alone enabled him to acquire, and then recover aught but the money which he has been forced to expend for the protection of his possession and the perfecting of his title, and such other damages as may have been caused by the breach of warranty. Frink v. Hoke, 35 Or., 17 (56 Pac., 1093). Pull compensation for the breach is the extent of the recovery authorized. This is the universal rule, which is not varied by the fact that the land to which the title failed belonged to the United States government. Galloway v. Finley et al., 12 Pet., 262 (9 L. ed. [U. S.], 1079). Appellee is estopped by his conduct from claiming the entire purchase price. The amount of his damage is the sum of his rights. To allow him to recover more would be to work a fraud under the guise of law, and this cannot be countenanced.

Reversed and remanded.