48 Miss. 470 | Miss. | 1873
It is conceded that the legal title to the lands and tenements sued for was in the plaintiffs, as the heirs at law of their deceased grandfather, Brame. Although several questions arose during the progress of the trial, which it may be proper to consider, the main defense relied upon was, that the defendant “ had a title, which in equity would be regarded as superior to the legal title of the plaintiffs ” (Code 1857, 388, art. 17), and sufficient to defeat a recovery. What is a “ superior equitable title ” within the intendment and reason of the statute ?
There has been much discussion in our books as to the nature of trust estates. In considering what trust
In Heard v. Baird, 40 Miss. 796, 789, the cases are carefully reviewed and the conclusion reached, that the principle laid down in Brown v. Weast, 7 How. 184, which was, “that a person holding the naked legal title, the trust being satisfied, could not assert that title in an action of ejectment to recover the land from
Let us noAV examine the equitable right presented by the defendant, to protect his possession against the legal title of the plaintiffs.
In 1865, Susan F. King and James B. King, owning an undivided two-thirds of the premises, executed a bond to George W. Lockhart, the husband of their co-heir and sister, Leonora, obligating themselves to convey to him their interests in the land, upon payment by him of $866.66 to each of them, secured by his promissory notes. As shown upon the trial, the object of this purchase was that George W. Lockhart might sell the property to the defendant, Camfield, in exchange for a tract of land in Alabama. At the same
The equity of the defendant arises out of the bond of Lockhart and wife, when Camfield tendered a deed to Lockhart for the land in Alabama. It is manifest that the latter could not convey a legal title to Cam-field to the land in suit. Mrs. Lockhart, as co-heir with her brother and sister, owned an undivided third. The equitable interest which Lockhart acquired from Susan F. and James B. King had been surrendered by an annulment of that contract. But it was argued for the defendant that, under the circumstances, and with the knowledge that Lockhart was purchasing for the purpose of sale to Camfield, they could not, as against him, by arrangement with Lockhart, vacate that contract, he having acquired by his contract with Lock-hart an equitable assignment of his rights against them in such wise as that Lockhart could not release them from their contract; and that if so, then. Cam-field is substituted by his contract with Lockhart to all the rights which he had against Susan F. and Jas. B. King. The extent of that right was to pay to each of them the consideration money which Lockhart had agreed to pay, and compel a conveyance of their title to himself. Lockhart could not demand a deed until
Lockhart incurred the obligation to Camfield to make to him a good legal title. He cannot perform that stipulation until he gets in the title of these two heirs, or procures it to be conveyed to Camfield. Neither of them can accomplish that until the money, the stipulated price of the land, is paid. It is not pretended that Lockhart ever tendered, or that Camfield ever offered, to pay to these heirs the consideration for their title. Yet, they were plaintiffs, and as against them Camfield sets up that he has an equity superior to their legal title. Their title is not dry and naked, standing out against a full and complete equity. No benefit or consideration has yet inured to them as reason and motive why they should convey to Camfield. They are still the beneficial owners of the property, and will continue to be so until the price shall have been paid to them.
As to two of the plaintiffs, quite surely the defendant has not such an equity as ought to prevail; and that, too, conceding (as is true) that they and Lock-hart could not rescind their contract after the former had executed a title bond to the defendant.
Did the defendant acquire an equity against Mrs. Leonora Lockhart ? There is something peculiar and out of the usual course of things in reference to her execution of the title bond to the defendant. The bond was signed and sealed by her husband and herself, in 1865, and in that form, on the 14th October, A. D. 1867,
But, on the 20th of August, 1870, the acknowledgment of Mrs. Lockhart appears to have been taken before one Tankersly, a justice of the peace.
It is insisted that the bond is not obligatory on Mrs. Lockhart because it was not acknowledged by her husband. “A husband and wife may, by their joint deed, convey the real estate of the wife, but the deed must be acknowledged,” as directed. Code, p. 307, art. 4. In the same chapter, p. 309, art. 19, the deed may be acknowledged or proved by a witness. In the chapter treating of marriages, divorces and separate property of married women, it is provided (art. 23, pp. 235-’6) : “ Nor shall the wife’s separate property be sold, conveyed or incumbered by the husband, unless the wife shall join in the conveyance and acknowledge as required,” etc. The statutes do not require that the husband shall acknowledge the deed; as to him, it might be recorded on proof by a subscribing witness.
The first instruction for the defendant was erroneous. There was nothing in the testimony tending to prove, between the parties plaintiff, or any of them, and the defendant, the relation of landlord and tenant. Cam-field entered as vendee and purchaser; his possession was in that right. There was no tenancy as lessee, express or implied; therefore a notice to surrender
But it is said by tbe defendant in error, that no injury could or did result to the plaintiffs from this statement of the law to the jury. Doubtless the same argument was advanced to the jury as has been made here: that, if the title bond conferred no right upon Camfield, then he entered and continued to hold with the consent of Lockhart and wife, and thereby established a tenancy from year to year. Such must have been the view of law entertained by the circuit judge. There being no proof of notice to quit, the effect was to cut off at once the plaintiffs’ right to recover, although their right of possession, on all other grounds, might have been complete.
As the case will be remanded for another trial, it is hardly necessary to consider the questions raised on the testimony, as all of those questions can easily be obviated on the next trial.
It may be remarked, however, that inasmuch as the title bonds had been on a former occasion produced under the notice, it was an acquiescence on the part of the plaintiffs that that was the paper meant in the notice. It would be a surprise on the other party, if the plaintiffs, having the paper, should decline to produce it on the ground that it was called in the notice a deed. The plaintiffs were not deceived or misled by the notice, but construed it as requiring the production of the title bond. The bonds used on the trial, as the record shows, were not copies from the county custodian of such records.
As to whether Mrs. Lockhart acknowledged the bond, “ separate and apart from her husband,” was a question of fact to be submitted to the jury. The certificate of the justice of the peace stands until disproved; it is prima facie true. Whether that prima facie case has been overcome or not, depends upon testi
Judgment reversed and venire facias awarded.