65 So. 885 | Miss. | 1914
delivered the opinion of the court.
Briefly stated, the bill of complaint filed in this case alleges that Mrs. Buckley, one of the deefndants, on May 5> 1899, being the owner of a ninety-nine year lease of certain sixteenth section lands situated in Lawrence county, executed a warrnaty deed by which she conveyed to Henry Myer ‘ ‘ all timber and timber-like trees ’ ’ grow
It is the contention of appellant that the title to the timber which Mrs. Buckley attempted to convey to com
First, it is insisted that the arrangement alleged to have been made by complainant with the attorney of the board of supervisors, whereby the board was to sell the timber to complainant, was merely a tentative agreement between attorneys, and had no binding force upon the board of supervisors. This position is undoubtedly sound. The board of supervisors cannot be bound by agreements of this character, even if made by the individual members of the board, because the board can only bind itself by an order entered upon its minutes at a legal session of the board. However, we do not understand that complainant takes a contrary view of this question. As we understand the allegations of the bill of complaint, the averment concerning this agreement is made solely for the purpose of showing that Mrs. Buckley and her brother knew that complainant was taking steps to secure the legal title to the timber Mrs. Buckley had attempted to convey, and that they forestalled this effort by “beating complainant to it.”
It is claimed by complainant that this action by Mrs. Buckley and her brother will not be tolerated by a court of good conscience, and we do not understand it to be insisted that any legal or binding contract had been made with the board of supervisors.
This is not a suit upon a breach of warranty, but a bill in equity based upon a warranty of title which the warrantor did not possess at the time the conveyance was executed, but which title the warrantor had secured before the filing of the bill. Mrs. Buckley in good faith attempted to convey the timber to Henry Myer, and Henry Myer and his successors in good faith paid for what they believed was a title to the timber. It was subsequently learned that the original warrantor, Mrs. Buckley, did not own the timber conveyed, and it is alleged in the bill that she combined with her brother to secure the title, but instead of conveying same to complainant as she was in good conscience bound to do, she attempts to put the title in her brother in order that complainant may be prevented from getting what it had paid for and what she had guaranteed to its predecessor in title.
Appellees rely on Naval Stores Co. v. Tootle, 96 Miss. 486, 51 So. 801, and Southern Plantations Co. v. Kennedy Heading Co., 61 So. 166, to support their contention that Mrs. Buckley’s warranty was a nullity and that she incurred no obligation thereby. In Naval Stores Go. v. Tootle, supra, the court uses this language:
“The sale of this timber by Tootle was a nullity, and there was a breach of the warranty made by bim at the very instant it was made.”
Nevertheless, the court held that he was liable for breach of warranty. The fact that his deed was a nullity
The case of Southern Plantations Co. v. Kennedy Heading Co., supra, does not offer any comfort to appel-lees, and if it has any bearing upon the questions presented by the record now before the court, it may be construed against appellees’ general views of the law of the present case, especially the observations of the court upon the third point made by appellant.
We believe that the fact that we are dealing with sixteenth section lands and the timber growing thereon has but little significance in the proper solution of the principles of law here involved. It is true that Mrs. Buckley’s deed to Myer, in so far as it undertook to convey the timber growing on the lands other than the pine timber, was ineffectual to accomplish its intention, but it does not follow that she could subsequently acquire the right to sell all the timber and set up her after-acquired title to defeat her warranty. By chapter 41, Laws 1898, boards of supervisors in counties having control of sixteenth section lands were authorized to sell merchantable pine timber growing thereon, and Mrs. Buckley, when she executed the deed to Henry Myer, could have bought from the board of supervisors that class of timber. By chapter 124, Laws 1904, the power of the board of supervisors to sell timber on sixteenth sections was broadened by empowering the boards to “sell the merchantable timber of any and all varieties.” By these two acts and by the provisions of the Code of 1906 Mrs. Buckley
The simple question is, Will a court of equity, looking through forms, decree that the title to the timber thus obtained to the benefit of complainant, and to this end further decree that'the legal title shall be placed where it belongs? As before, stated, the bill alleges that Mrs. Buckley conveyed the timber in good faith, believing that she had a right to do so, and appellant accepted the deed and paid the price under the same belief. It seems .to us that good faith and good conscience require that a court of equity grant the relief sought by the bill. There is no conceivable reason why Mrs. Buckley should not be required to carry out her contract to vest complainant with a perfect title to the property for which she received the agreed price, whenever it became possible for her to do so. This appears to be common honesty; and, while it is true, complainant might sue for breach of warranty, we are unable to agree to the proposition that that is the full measure of his rights. When the war-rantor acquires an outstanding paramount title, it cannot be used to defeat the title of the warrantee, but will inure to the benefit of the warrantee. This is a familiar principle of law and needs no citation of authorities.
Our books are full of cases announcing the rule of law, but we will cite but one, a case dealing with the purchase of an outstanding title in the government.
In Wade v. Barlow, 99 Miss. 33, 54 So. 662, it was held to be a well-established general rule that where the purchaser has been put in possession, he cannot afterwards acquire an outstanding title in the United States and set it up in apposition to the vendor. In that case the title conveyed was in the United States, and of course the vendor could not have made a valid deed — the deed was a nullity, and no title passed, and yet the vendee was not permitted to set up a title obtained from the government
Reversed and remanded.