Howell v. Hill

48 So. 177 | Miss. | 1909

Eletoheb, J.,

delivered the opinion of the court.

While it is true that the husband signed and acknowledged the deed conveying the homestead in September, and the wife’s signature and acknowledgment bear date of the May following, yet both signed the same instrument in furtherance of an intention to which there was manifestly a common and contemporaneous assent. The case is totally unlike Duncan v. Moore, 67 Miss. 136, 7 South. 221, in which case the alleged assent of the wife was evidenced by a separate deed of conveyance, executed by the wife subsequently to the husband’s deed, and made without the husband’s consent. In the case before us the wife signed with full knowledge and consent of the husband, and this is surely sufficient.

Upon tbe point made as to the conveyance from Bardwell to Howell -operating as an assignment to Howell of Bardwell’s lien for tbe unpaid purchase money, we think it is clear that section 2444 of the Annotated Code of 1892 is without application. That statute deals with an estate in lands, and the right which a vendor has to subject the land sold to the payment of 'the purchase money is not such a “right or estate in the lands” as this staute contemplates. This debt goes to the personal representative of the deceased vendor, and not to the junior grantee ■of the lands.

There being' no satisfactory evidence of estoppel, the legal title must prevail, and it is clearly shown to be in the appellees.

Affirmed.