Leflore County v. Allen

80 Miss. 298 | Miss. | 1902

Oalhoon, J.,

delivered the opinion of the court:

We decline to disturb the conclusion reached in this cause, on its former appearance in this court in Allen v. Leflore County, 78 Miss., 671 (29 South., 161), as to the duress of Mrs. Allen, and this regardless of whether the question of duress is or is not res adjudicata. Although, even under the threat of putting her husband in the penitentiary, putting stripes upon him, and disgracing her and her children, she refused to sign the first deed, which carried everything she had,' and would have reduced her and her large family to destitution, still she, none the less, acted under duress in signing the second deed, conveying her land in the country which is involved in this controversy. In the first dreadful alternative she might accept disgrace as a lesser evil than to impoverish her large family of little children, and yet yield to the threats in the second instance, which left her the pittance of her town property. This duress was not removed during her life because she died before her husband, and, if she repudiated while she lived, his prosecution impended, in that it could have been commenced at any time, embezzlement not being barred by the statute of limitations. She never made any proposition to the county. It was the county which was annoying her.

Very clearly, the act of 1886 (laws 1886, p. 772) “for the relief of J. K. Allen, ex-treasurer of Leflore county,” did not operate as a statutory pardon of the crime. It simply authorized the board of supervisors “to take from said Allen, land in such quantities as they may determine,” and, when this was done, it provided that “said Allen shall be relieved from all liability on account of said indebtedness.” All this refers to the debt, and not to any crime. We cannot deduce from this statute that the legislature designed to go into the business of selling pardons or compounding felonies. Even if it did, in such phraseology, it could hardly affect the question of duress upon the unhappy wife of the embezzler. She was not learned in the law. The facts that she lived for two years without repudiating her conveyance, her husband being still alive, and that she expressed satisfaction at the acceptance of the conveyance to save disgrace, do not constitute ratification, under all the facts of this case. No doubt she was gratified in preventing disgrace under the threats and yet being able to retain her little town property. When Mrs. Allen died her husband, J. K. Allen, with her five children, each became the owner of a one-sixth interest in her lands. ' As soon as it thus inured to him, as the chancellor correctly held, he and his heirs were estopped, because of his deed to the county, from claiming this one-sixth interest from the county. There was no sort of necessity for him to join his wife in her deed for conformity. Under the law, then, either might convey his or her land, not being homestead, without the joinder of the other. But he did join, and used the word “convey.”

A conveyance without warranty was a statutory quit claim and release (code 1880, § 1235), and a quit'claim and release “shall estop the grantor and his heirs from asserting a subsequently acquired adverse title to the lands conveyed.” Code 1880, § 1195. The word “acquired” is used in the sense of obtained. Allen obtained the land by devolution upon him by descent. We cannot yield to the extreme technical meaning-urged upon us by counsel, that land can be acquired only by the act of the party. Mr. Blackstone, in his Commentaries (book 2, pp. 200, 201), speaks of where an “heir acquires by descent,” and gives two methods of “acquiring,” one of which is by “descent”; and, again, he uses this language: “Descent is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law.” The legislature used the word in this general sense. The interpretation contended for by counsel would occasionally lead to most grotesque results. So, we think, as to this one-sixth and the rents of it, the right is with the county.

The chancellor properly retained jurisdiction for final disposition of the rights of the parties. The original bill of the county was never dismissed, and the Allens set up in their cross-bill an independent equity for cancellation of the deed to the county, and were, in this case, entitled to have adjudicated their claim for relief.

We uphold the chancellor in applying the six-years’ statute of limitations to the claim for rents as he did, and in, accordingly, limiting the claim of Mrs. Hughes and Mrs. Brown. In so holding, we do not care to advert to the manifest distinction between Root v. McFerrin, 37 Miss., 17 (75 Am. Dec., 49), and Anding v. Davis, 38 Miss., 574 (77 Am. St. Dec., 658). While all the Allen heirs might, as they did, join in an action of ejectment, still it was not necessarily a joint claim. Either might have sued separately for his share of the lands and rents for that. We are in full view of Cooper v. Cooper, 61 Miss., 676, which we approve,, and cognate cases on express, continuing statutory trusts, in holding that the six-years’ statute applies in this case.

We approve the allowance of attorney’s fee on partial dissolution of the injunction obtained by the county, and also of the allowance of .interest. When a county enters the arena of litigation about lands acquired as these lands were, she disrobes herself of sovereignty pro re nata, and is on the footing of any other litigant. The land of Mrs. Allen may be liable for the taxes, state and county, but not in this litigation. The way to recover is by proper proceedings of assessment for the years the lands escaped.

Affirmed on appeal and cross-appeal, each party to be taxed with one-half the costs.