32 Miss. 324 | Miss. | 1856
delivered the opinion of the court.
This was a bill filed by Pintard, in the District Chancery Court at Natchez, against Allen Gr. Bowen, his wife and others, for the purpose of subjecting to the payment of a debt, due by Bowen to
The bill was taken pro confesso, against Bowen and wife, and Ann Lee, and upon the hearing, a final decree was made as prayed.
Afterwards, and within five years from the date of this decree, Thomas B. Kempe and Margaret his wife, filed their petition praying to be admitted to contest the bill, showing that Margaret Kempe was formerly the wife of Bowen, but before the date of the decree, that they had been divorced a vinculo matrimonii, and that she had intermarried with Kempe, and praying to be admitted to answer the bill as non-residents. This petition was granted, and Kempe and his wife answered denying that Bowen had any title to the land except what he acquired by his marriage with his wife, now Margaret Kempe, who is the sole heir of Charles S. Lee; that Bowen and his wife had no issue, and were divorced in December, 1848, prior to the* decree in this case, and that Bowen died in the year 1853. The answer further states that the decree of the Probate Court for the sale of the- land, and under which Bowen’s title was acquired, was void, because the record does not show that the citations required by law to be put up at three public places in the county were posted, nor were they in fact posted; that the land was bid off at the sale, by Bowen, for a mere nominal
It appears by a transcript of the record of the proceedings in the Probate Court, that the land was prayed to be sold for the payment of debts, the personalty being insufficient for that purpose ; and the decree for the sale contains the following recital:— “It appearing to the satisfaction of the court, that publication has been made, and citation issued according to law to all persons interested in the lands, tenements and hereditaments of Charles S. Lee, deceased, as a notice that application would be made at this term for an order to sell certain real estate,” &c. The transcript contains proof that publication was made, but does not show that citations were posted up as required by law.
The complainant offered as proof the final account of Ann Lee, administratrix, with the Probate Court, in which she is charged with $>13,395, as “heir’s portion of real estate,” and claims credit for the same amount, “paid to Allen Gr. Bowen for heirs;” also a receipt executed by A. Gr. Bowen to Ann Lee, administratrix, and filed as a voucher with her account, for' the same sum of money, which is therein stated to be in full of all claims of himself and his wife for the proceeds of the sale of the land sold by her.
On the final hearing, the court decreed that the previous decree be set aside as to Mrs. Kempe, and that the bill be dismissed as to her and her husband, but that it be confirmed in all other respects, and that the complainant have execution of it. To this decree, Kempe and wife have brought this writ of error.
It is clear that by the dissolution of the marriage between Bowen and his wife, and especially by his death, all interest which he had in the land in controversy in right of his wife, as the heir-at-law of Charles S. Lee, ceased; and if he had any interest in the land which could have been subjected to the claim of the complainant, it must have been in virtue of hi3 purchase at the sale made by the administratrix.
The first question then is, whether the decree for the sale was valid, with respect to the notice under which it was made.
It appears by the record of the Probate Court that, on the petition of the administratrix, at June term, 1838, it was ordered that
The next question is, whether the acts of Bowen, with regard to the purchase-money, amount to an affirmance of the sale by his wife, and are sufficient now to estop her from denying the validity of the title acquired by him under the sale.
The bill alleges that Bowen paid the purchase-money in full to the administratrix. This is explicitly denied by the answer; and the proof is, that on the day after the sale, Bowen executed to the administratrix a receipt in full for all claims of himself and of his wife, as well as of her deceased sister, of whom he was guardian, upon the proceeds of the sale of the land. In the final account of the administratrix she is credited by the same' amount of money paid to Bowen for the heirs; and in the deed executed to him for the land by the administratrix, and bearing the same date as the sale, it is recited that he had secured the payment of the purchase-money to her satisfaction. It further appears that the decree directed the land to be sold on a credit of one, two, and three years.
, Under these circumstances, it is plain that Bowen did not actually pay the purchase-money to the administratrix, and that the matter was settled by private arrangement between them, without the payment of any money.
The sale of the land being void, her title remained as if it had never been made. It was necessary that she should do some positive act that would conclude her from objecting to the sale, because it was her title that was to be affected by the act, and that title was wholly independent of her husband. Suppose it appeared that the money was actually paid, and upon application that she refused to accept it, and that her husband afterwards, without her consent, received it; or suppose that she was applied to for her consent to the arrangement made between her husband and the administra-trix, and she refused, and notwithstanding this, that the arrangement was made, would she be bound by such act of her husband ? Clearly she would not; because her separate interest being unaffected by the sale, it would require some act on her part, amounting to a consent that the sale should stand, before her right would be lost. Until such an act be shown, her rights remain wholly unaffected by the acts of her husband.
If the sale had been regularly and lawfully made, and the land purchased by a stranger, who paid the purchase-money, and Bowen had received it on account of his wife, it might then have become a question between Mrs. Kempe and the administratrix, whether the husband was entitled to receive the money, and to bind her by his receipt. Then the question would have been, whether the husband was entitled to give an acquittance for money due by the regular sale of the wife’s lands, which was to be regarded as her separate property. But a different question is manifestly presented in this case; it is, whether the husband can bind his wife, without her consent, to an unauthorized sale of her real estate. And upon that question there can be no doubt. He could not bind her by any positive act of his, even his deed, much less could he bind her by a mere recognition of the sale, or by any collateral act that
But tbe arrangement in tbe settlement of tbe purchase-money was irregular in another respect, and must be regarded as a fraud upon tbe rights of Mrs. Bowen. Tbe decree directed tbat tbe land should be sold upon a credit of one, two, and three years. If tbat bad been complied with, she might have bad tbe benefit of tbe purchase-money, which was payable on time, if she survived ber husband. But contrary to tbe decree, the money was settled immediately between tbe purchaser and tbe administratrix, by tbe application of tbe proceeds of tbe sale of tbe separate property of bis wife to tbe payment of bis indebtedness for tbe purchase-money, without ber knowledge or consent; and if bis receipt for tbe purchase-money due ber was binding, she would lose all claim except a mere personal demand against bis estate for tbe money. If such a proceeding mould be sanctioned, it would be in effect to allow a husband, contrary to tbe authority under which tbe sale was made, to procure a conveyance of bis wife’s separate estate to himself without consideration, and without her knowledge or consent, and to dispose of it at pleasure, leaving ber without adequate remedy for tbe wrong. Moreover, tbe complainant shows only an equitable title. In any just view tbat can be taken of the case, it is manifest that tbe equity of tbe plaintiffs in error is entitled to tbe more favorable consideration, and it is prior in point of time. Upon tbat ground it is entitled to prevail.
Tbe case of Lee v. Gardner, 26 Miss. 548, is cited by tbe counsel for tbe defendant in error, as bolding tbat tbe plaintiffs in error are estopped by having received tbe purchase-money, from denying
It follows from the views above stated that the original decree, directing a sale of the land for the payment of the complainants’ debt, should have been set aside in the final decree. A decree is ordered accordingly, and dismissing the bill as to the plaintiffs in error.