Kearny v. Jeffries

| Miss. | Apr 15, 1873

SlMRALL, J. :

The .appellants and Wood & McGinnis purchased the “ Contentment ” plantation, or the life estate of Mrs. Itouth therein, under a judgment against Job Routh and wife, and a decree in a chancery suit set out in the pleadings.

The original bill alleged that the father of Mrs. Routh, sometime before the recovery of the judgment and decree, had conveyed this property, consisting of 2,400 acres, to his daughter, Mrs. Routh, for life, remainder to her two infant children; that this deed was suppressed, and had never been put on record; concluding with a prayer for a discovery by what title Mrs. Routh holds the lands; for delivery to complainants of the deed to her from Jeffries, or other title proper to be placed on record, or for commissioner to make a deed; and that defendants deliver possession to complainants, and pay rent. The answer of the defendants deny that such deed was ever executed, except that it was signed and acknowledged by Jeffries, and sent to his daughter, Mrs. Routh, who declined to accept it; and thereupon it was delivered back to her father. That both Jeffries and Mrs. Routh treated the contemplated settlement of the property as at an end.

The appellants assert that the title for life under this deed actually vested in Mrs. Routh, and that by the sheriff’s sale and deed they acquired an undivided half of it. But in order to obtain the fruit of their judgment and purchase, they ask for a discovery and production of the deed, that it may be registered, and that possession be delivered up, and for rents.

This is manifestly not a technical bill for discovery. Such bills are always brought in aid of a pending suit at law, or of a suit about to be brought to have disclosure of facts resting in the knowledge of defendants, such as deeds or other writings in his custody or power; but no relief is sought because of such discovery, or touching the matter brought to light. Mit. Eq. PL, by Jeremy, 53; Story Eq. Jur., § 1483.

The object of the bill is to obtain a discovery of facts material to the prosecution of the complainant’s right in some other suit. It is generally, if not always, the case, that a court of law, or some other tribunal than a court of equity, has exclusive cognizance of the subject-matter touching which discovery is sought. Incidental relief, necessary to give the plaintiff full benefit of discovery, is allowable, such as the stay of the suit at law until discovery is made, or the production of deeds and papers in court, etc. Story Eq. Pl. 315. This chancery jurisdiction in aid of a proceeding at law, has, by statute, been conferred upon the courts of law.

This bill is both for discovery and relief. After purging the consciences of the defendants, and procuring a disclosure and producing of the deed from Jeffries to Mrs. Routh, it seeks to make an end of the whole matter, by recovery of the possession of the lands and the rents and profits. Manifestly, the title of the complainants, if any, to the property, is purely legal. The right claimed to have vested in Mrs. Itouth by the conveyance from her father is purely legal. The only obstruction in the way of full redress at law, is the inability to ¡Drove the deed, its execution and delivery. Because the complainants could not command the evidence, the discovery became necessary. But, when that was obtained, or the means of obtaining it exhausted, was not the jurisdiction of the chancery court spent ? It must be so, unless the proposition put forward by the complainant be true. That a party, clothed with the legal title to real estate, who is obliged to seek discovery and production of deeds from his adversary in chancery, in order to prove his title, having gone into the equity court for that purpose, is there for all, and may use in that court the fruits of his discovery to recover the land and its rents. It was because the defendant could not be examined as a witness at law, and because that court had no machinery or adaptation, to extort from him a discovery, that the court of equity, for the advancement of justice and the vindication of truth, came to the aid of the legal tribunal. But, whilst we do not say, that under our system, which enables the plaintiff to examine the defendant as a witness at law, and to file in that court the ancillary petition for discovery, there is no longer a right to resort to a court of chancery for discovei’y, and that the jurisdiction of that court has been taken away by these statutory changes. We are, nevertheless, of the opinion that if the plaintiff, who has a legal title and needs discovery, brings his bill for that purpose, a court of equity will not undertake to try the case as if it were an ejectment.

A court of equity must have jurisdiction to relieve, in some particular, before it will relieve for all. But the ordinary hill of discovery is not a hill for relief, and requires, generally, no decree.

But aside from this, the judicate of the complainant’s title is, that Mrs. Routh had a life estate, which they acquired at the sheriff’s sale. The defendants deny distinctly and positively the conveyance of the land by Jeffries to Mrs. Routh, It is admitted that Jeffries proposed to convey, and that he prepared a deed, sealed and acknowledged, and sent it' to his daughter, but that she declined to accept it, and so notified him. A deed is one of the forms of a contract; and to constitute a contract, the grantor and grantee must concur; the former to convey on the terms mentioned in the instrument, and the latter to accept. The delivery of the deed is the last formal act to its complete execution. That implies more than a mere manual provision for a time by the grantee; there must be the acceptance and assent that it shall be operative as a contract: Where it is beneficial to the grantee, in the absence of countervailing circumstances, delivery and accejitance will be presumed, from many circumstances, such as acknowledgment and registration, enjoyment of the estate raised by it, etc. The acceptance is necessary, and the fact must be proved. This is put in issue by the pleadings, and the onus of proof is on the complainants. McGehee and wife v. White, 31 Miss. 16. In Bullitt, Miller & Co. v. Taylor & Richardson, 34 ib. 741, the deed had been signed, sealed, acknowledged and put upon record, yet it was said that was 'not sufficient to transfer the title, unless the grantee accepted it. Until then, it was but a proposition to convey, which might be withdrawn. The presumption arising from what had been done by the grantor of a delivery, may be overcome by facts.

The controversy between these parties is reduced to the affirmation by the complainants that Mrs. Routh accepted the deed, and a denial by the defendants that it ever was accepted. Although the denial is accompanied with some circumstances of detail, they are so interwoven with the general proposition that it is a little difficult-to separate them. But as in the case of Russell v. Moffit et al., 6 How., the complainants are not relieved of the duty of overcoming the answer by testimony.

But the case was finally heard on the pleadings. No testimony was offered by either side. In this attitude, the defendant was entitled to the decree without considering the other questions made by the appellant.

The decree is affirmed.