Kaiser v. Earhart

64 Miss. 492 | Miss. | 1886

Cooper, C. J.,

delivered the opinion of the court.

If it be conceded that the conveyance executed by the defendant and his wife was ineffectual to convey the wife’s title because of her lunacy, it is yet true that the first verdict was manifestly right and should not have been set aside by the court. The conveyance was executed by the defendant, and by the death of the wife he derived either the whole or a part of her title by descent. Whatever title was thus acquired by him enured to the benefit of his grantee. Clarke v. Slaughter, 34 Miss. 65.

It is said that there is nothing in the record indicating that the husband was the sole heir-at-law of the wife, and that it devolved on the plaintiff to establish that fact to entitle him to a recovery of the property sued for. To this we reply that the point was not made in the trial below, and it is manifest that the whole controversy there was as to the validity of the deeds under which the plaintiff claimed, and also that the husband claimed the possession under the descent cast on him by the wife’s death. If there are other heirs of the wife their title will not be affected by the judgment-in this suit.

The judgment last rendered is reversed, the first verdict re-established, and a judgment directed to be entered here for the plaintiff.