Ligon v. Barton

40 So. 555 | Miss. | 1906

Oalhoon, J.,

delivered tbe opinion of tbe court.

Mrs. Sarah O. Ligón owned 720 aeres of land, and her husband, B. T. Ligón, owned 1564 acres adjoining it. The two made a trust deed,-covering both tracts, to secure $3,500, to the Jarvis-Oonklin Mortgage Company. With matters in this shape, B. T. Ligón wrote and signed and attempted to acknowledge the following:

“Hinds County, Miss., June 5th, 1892.

“Eor and in consideration of one dollar, I hereby bargain, grant and sell to S. C. Ligón, of, Hinds county, the following lands: E. 4 of S. E. £ of section 25, T. 6, B. 1 W., lying north of the Clinton dirt road, containing 7 6£ acres, more or less; also W. 4 of S. W. £ of section 30, T. 6, P.l E., north of V. & M. B. B. This deed is made for the purpose of her making sale or sales to pay off mortgage on this place and on her property.

“B. T. Ligón.

“Personally appeared before me, a J. P. in and for Hinds county, B. T. Ligón, who acknowledged that he signed the above deed for the consideration stated.

“This June 4,1892. S. L. Davidson, J. P.”

This he put in a tin box among his private papers, which he kept in a wardrobe, used by both himself and his wife,' in their bedroom. It was never delivered, and Mrs. S. O. Ligón had no knowledge of its existence until some months after his death, and nearly three years after he signed it she came upon it, and, thinking it all right, she caused it to be put on the record of deeds. On the death of B. T. Ligón, his 1564 acres descended to the eight appellants, his children, and his wife, Sarah 0., to each one-ninth, subject, of course, to the Jarvis-Oonklin incumbrance on the whole tract. Mrs. Ligón having, as will be seen, subsequently conveyed, this controversy affects only eight-ninths of the 156-J-acre tract of B. T. Ligón, -deceased. In this condition of things, Mrs. Ligón made a conveyance to appellee, S. P. Barton, of the whole property, including both tracts, as she and he thought she had the right to do. The consideration of this conveyance was $500 in cash paid by Barton and his agreement to pay off and satisfy the Jarvis-Oonklin incumbrance. So, by this conveyance, he took title to the 720 acres owned by Mrs. Ligón, and her one-ninth as heir of B. T. Ligon’s 156-¿ acres. Whether he got anything of the eight-ninths interest of the appellants in this 156-J acres is now for determination.

Subsequently to all the foregoing history, S. P. Barton, who had agreed to pay off the Jarvis-Oonklin debt, got an extension of the payment of it for three years, to be paid in gold coin. The assignees of this Jarvis-Conkin Company attempted to foreclose their trust deed in chancery. Sale was made under decree and S. P. Barton bought at the sale. He himself caused the foreclosure proceedings, and the sale under them at which he bought, to be had, and for the express reason that he got wind of the claim of the heirs of B. T. Ligón and desired thereby to strengthen his title. But it cannot be successfully controverted that the sale is void, and nothing need be wasted on this. Barton was a tenant in common claiming adversely, and had reason to believe it when he bought.

A deed of trust on the whole of both tracts was given by S. P. Barton to secure $3,000 to Mr. Alexander, agent, a third party, and this money was paid on the Jarvis-Oonklin Company debt. The bill in this record is to assert title of the eight children, and for accounts of rents and profits and for partition as between them, and the court below dismissed it, basing the decree solely on the ground that complainants were estopped “on the facts and circumstances in evidence to assert title against defendant.” We cannot assent to this. There is no circumstance in the valid evidence which would have estopped B. T. Ligón from destroying his signed deed before delivery, and none to show any fraud or misrepresentation by any of his children, and nothing whatever to show appellants to be in any class in the category of action or nonaction, misleading speech or misleading silence, etc., laid down in the books, one or more of which must exist in order to constitute equitable estoppel. 2 Pom. Eq. Jur., sec. 805, and the authorities cited in the brief of counsel for appellants, especially Turnipseed v. Hudson, 50 Miss., 429 (19 Am. Rep., 15).

The deed was never delivered. Hall v. Waddell, 78 Miss., 16-26 (27 South. Rep., 936; 28 South. Rep., 831). Barton knew nothing of it, and therefore could not have relied on it, even if such reliance would have availed, if he had known of it in fact. The record of it conveyed no constructive notice, because of the fatal defect in the acknowledgment in omitting the word “delivered.” Inasmuch as Barton paid the money, which he borrowed from the beneficiaries in the Alexander trust deed, on the Jarvis-Oonklin incumbrance, which covered both tracts and which was joined in by Ligón, they, the said beneficiaries, are to that extent subrogated to the rights of the JarvisOonklin Company under its incumbrance.

Since Barton was co-tenant, but holding adversely and to the exclusion of the appellants, an account should be taken of the rental value of the 156J-acre tract, and the eight-ninths of it, of the appellants, credited on the amount of the Jarvis-Oonklin debt, proportioned with the other tract, to the amount so paid by Barton, and whichever exceeds the proportion shall have decree over, with lien on the tract of the other. But the Alexander trust is a first lien on both tracts, and, if decree of sale be necessary to obtain this money, it shall be rendered so as to protect the equities on pro rata adjustment, and not be realized exclusively from either tract.

Judge Whitfield, being disqualified by relationship to one of the parties, took no part in this case.

Reversed and remanded.