McCaa v. Russom

52 Miss. 639 | Miss. | 1876

Per curiam:

Appellant, as executrix of the will of D. McCaa, exhibited her bill, in the chancery court of Jefferson county, to sell a certain tract of land, on the ground that it was necessary for the payment of debts of the decedent, and, as a means to the end of obtaining a fill price for the land thus sought to be sold, she framed the bill with a view to remove a cloud from thm title, which exists in the shape of a deed made by her testator,, by which he conveyed this land, by metes and bounds, to Clara. Eussom, calling it 100 acres, when in fact it is a tract of 440 acres. The bill avers that only 100 acres were intended to be conveyed to Clara Eussom, and that 340 acres of this tract are subject to sale, but that Clara Eussom claims the 440 acres, and the prayer is to reform the deed under which Clara Eus-som claims, so as to limit her claim to 100 acres and disembarrass the other of her claim, and to sell it. The bill shows that testator left much other real estate. The will does not devise the land to be sold, nor direct its sale, nor vest title in the executrix. On final hearing the chancellor dismissed the bill, and in this he did right, for the executrix, as such, has no right, upon the facts of this case, to maintain this bill to remove clouds from the title, or to reform the deed to Clara Eussom, as having-been made by mistake to embrace the whole tract when it was intended to embrace only a part. We are convinced that it is highly probable that a mistake was made in the deed, and if there was no other land to which to resort for the payment of debts, and the sale of this was shown to be necessary for that purpose, or a decree of sale had been made on proper proceedings, we might hold that the executrix, as such, had such title or interest in the land as to entitle her to maintain a bill to reform the deed or disembarrass the title of the land. All we decide is that, upon the facts of this case, the executrix did not show such title or interest in the land, in her representative capacity, as to entitle her to maintain the suit she brought.

Decree affirmed.