Hytken v. BiancaHytken v. Bianca
*1 323 Hytken et al. v. Bianca. 20,
(Division 1939.) A. Feb.
[186 33550.] So. 624. No. Suggestion
On of Error. May 1939.).
(Division 1, A.
[188 33550.]' So. 311. No. *2 appellants. Cooper Thomas, for Indianola, & of *5 328
Moody appellee. & Davis, of for Indianola,
333' *11 appellee Sugges- Moody on for Indianola, & of Davis, Error. tion of
338 *15 opinion O. J.,
Smith, delivered the of court. the ejectment by appellee This an is action of the to re- appellants possession from cover the the of a house and support Mississippi. to claim of his In in lot Indianola, appellee property, in possession introduced the of the Conguista, him thereto from Catherine a deed to evidence purchased September it who had 1936, 9, executed on Conguista, July, are of whom in both 1936, from Antonio appellants Italy. then The of citizens and residents property two-year the lease to in evidence a introduced option Hytken, appellant, for renewal an the to the with period exceeding at a years, not three for a of thereof monthly May and for 14, 1936, rental of executed $15, on Conguista, then owner of the in property, name of Antonio the the attorney by Conguista, in fact; Paul his as immediately possession Hytken into of the entered that property paid Antonio thereon when due to and the rent by agent purchased appellee, Conguista’s it the until was They a record thereafter to him. introduced and then chancery setting clerk’s forth Paul Con- of the guista’s office
power attorney Conguista, but, of from Antonio acknowledged, properly rec- it was not of as it not was objection by appellee, from was excluded and, on the ord, parol appellants then introduced evi- evidence. The the original power attorney had been of his of dence that the copy and thereof, identical with the record but was lost, Conguista, signature Antonio thereto was that of that the copy and that thereof, with record was identical the but signature Conguista, was Antonio thereto that of the attorney prepared by in In- an at law been that it had by received mailed and thereafter dianola, Antonio, to by attorney him mail, in course of and delivered the due Paul. to objection by appellee its accom- the this lease and
On attorney by power panying were the court. of excluded appellee support ruling says: (1) of this the The In *16 as such for the reason that Paul Con- was void lease ‘‘ attorney acknowledged guista’s of were not or letters required by proved 2949, Section Code and recorded” as (2) if lease as such cannot be held to be 1930; the void of (3) and; a lease for same reason, to make the a contract 342
if the lease held a to a should to contract make lease he be ’ appellants rights only, equitable the thereunder and are equitable that ejectment. defenses are not in an action of admissible may preter- questions of The first and will be these opinion expressed mitted and no thereon for reason the opinion that of we are the herein- the that under cases equity after cited the a contract to if in void as constitutes lease, such, amake and is admissible in evidence lease, support appellants’ pos- in of in claim the to continue property. of session the according
Section Code of 2949, to Lobdell et al. 1930, Hopper v. 71 937, Miss. 15 v. Mc Mason, 44; So. ux. et 2; Miss. 40 Allum, 441, So. and v. Hutchinson Platt application et ux., 606, 119 Miss. 81 So. no to has 281, by attorney making contracts an in fact for a lease, the of governed by but that such contracts are Section 3343, provides: Code of 1930. That section brought whereby charge “Ah action shall not be to a party: or defendant other
“(c) Upon any contract for of lands, the sale tene- any making ments, the hereditaments, or or of lease longer year; a term thereof for than one agree- promise in of “Unless, each said cases, the or upon may brought, ment which such action be or some writing, or memorandum note in shall be and' thereof, signed party charged by per- the to be therewith, or some by lawfully or son him her thereunto authorized in writ- ’’ ing. writing” “in The words at the end of the section first appeared Chapter by 152, therein of Laws 1926. In Lob supra, al. v. Mason, dell et decided before amend this the was ment to for more ney this made, Court held that a lease statute year principal by a made than for his an attor authority in fact under verbal so do to was void as equity a but valid in a lease as contract to amake lease.
343 change wrought by only ad- The in this decision the writing” dition is that of the “in to the statute words agent’s writing. authority It the in fol- must now be lows the is void that if lease here under consideration express opinion, as as to which we no it valid such, is equity agent’s ap- in aas contract to make a the lease, pointment writing. being in equitable generally
It is that defenses not ad- true are ejectment. an however, missible in action of This Court, exception recognize and others this viz: some thereto, ‘ ‘ possession by purchase, a defendant under a contract of long so as not default.” be is in 19 C. J. 1084. Bolton Roebuck, v. Miss. 27 There 710, 77 So. 630. can be no respect purchase in this between a contract of difference and a contract for a lease. power attorney of
The lease and should have been admitted in evidence. and
Reversed remanded. opinion sug- J-., Griffith, delivered the the court of on gestion of error. original opinion although might
In our held that it we appellants’ legal be conceded that was invalid a lease as lease, it was sufficient as a contract to lease, make a fully equity, which contract would be we in enforceable and thereupon relied on v. Roebuck, cited and Bolton 77 possession Miss. 27 So. it 710, wherein was held that 630, good ejectment, under a bond for was a title defense in although might aspects such a in of defense some be its equitable; denominated as and in said, we reliance, such respect that can there be no in this difference between possession purchase under contract for a the of the land possession against as under a contract for the lease thereof.
Appellee suggestion has filed an able and elaborate of position pres- in he the error which takes that since our Section statute, 1427, ent Code now 1930, as worded, al- plaintiff prevail ejectment lows a “is in to where he legally possession entitled no to the of the defense land,” equitable. whatever is available which in its nature is particular nothing But this respect, statute in to the law this adds already beginning
as it existed from the of the Heirs, jurisprudence of this v. state. See Winn Cole’s *18 present nothing Walk. 119. The statute adds in the respect mentioned to law when v. what was the Bolton along Roebuck decided. was And all down line it the against pos- has been as said that a in actual defendant legal prevail ejectment session the will title not in when complete equitable the defendant “has a title to sufficient legal draw to it the title.” Land v. Miss. Keirn, 341, 52 citing 484, 351, Lockhart v. Camfield, 48 Miss. and 470, Thompson Wheatley, v. 5 & Smedes M. 499. as ex- Or, pressed Lessley, in Bonner v. 61 392, Miss. 397: “Where equitable the estate of the defendant is of such charac- equity ter that he would be a transfer of the action at law in a entitled of to court have legal may that he in defend an title, brought by legal the holder of the title. Nothing new announced, was in therefore, Bolton v. supra; appellee Roebuck, nor does that was contend it erroneously says, decided. He in however, that that equitable by case the an defendant had estate, reason legal convey of the to contract the lands, and cites the Jernigan, recent case, Griffin Co. v. 170 Miss. 154 343, being analogous principle, 344, So. as in 342, wherein long it was said: “It has been the rule in settled this possession when that, state has been delivered to the binding purchase, vendee a under contract of sale and long and so tion of as that contract in remains the reten- force, by purchase money paid
title vendor until the in legal conveying full in effect is the same as the title and by taking security previous mortgage,” citing cases. — appellee says appellants only But that here have an right equitable distinguished equitable as from an estate. In v. 171 Wheeless, Collins Miss. 263, 267, 157 82, So. operates conveyance a we said that lease as a demise or
345 property specified period citing of the for a Rich of time, v. Swalm, 161 Miss. 325. If a 515, So. contract 505, person operates possession to make a sale of to vest an in land to a equitable it estate, follows that a contract to person possession operates make a lease to a in to also equitable specified vest an estate,- the duration of —for satisfy in a time, and measure sufficient to rule. the present But back of all in so far as the this, case is principle concerned, lies the fundamental that no man may any may recover in action or its suit, whatever be prevail when so nature, to in order do, and to therein, repudiate he must or for no reason other than withdraw, right existing his own an volition, which he himself has validly granted opposite party. to the In order main- to any right tain (1) action or suit there must a be on the part plaintiff, (2) wrongful of the and a violation of that right by the defendant. Both elements are absent in this present so far the case, as record is concerned. 1 C. J. p. pp. S., Actions, section 1 Am. 1, 939; Jur. 417-419. plaintiff’s grantor put appellants pos- Here the had in *19 granted session and had to them a valid contract to make specified period unto them a lease for a of time. The grantor eject occupants pos- could not the who went into session under him and under a him, such contract with contemplated possession. which a of continuance that say possession not He could that he was entitled to as against put possession those he had himself into under delivery such a contract. Under his contract and of possession agreed by he had himself his own act that appellants rightfully possession, were in wherefore he say by ejectment any not could an or action, possession. other action, they wrongfully that were ap- in And since pellants possession in appel- actual were at the time of against rights appellants ’s great- lee his purchase, are no original grantor. than of er those the Suggestion of error overruled.