72 Miss. 656 | Miss. | 1895
delivered the opinion of the court.
By the deed of May 2, 1877, John Nelson divested himself of the entire legal estate in the lands thereby conveyed to W. H. H. Green, trustee. Subject to the debts primarily charged upon the land, he limited the beneficial interest therein to himself for life, with remainders to his five children, or to such of them as should not, during his life, dispose of their interests, with an ultimate limitation over to himsel-f, if all his children should, during his life, dispose of their interests in the land. It does not appear that the conditions on. which this ulterior limitation Avas to take effect ever existed, and there remained no estate in John Nelson, legal or equitable, which passed to his heirs at law by descent upon bis death. Whatever interest they had in the land, they took by the deed, and not by descent. By the conveyance to Green, a trust was created in favor of the beneficiaries named therein, and thereafter it ivould not have been within the power of the grantor and trustee to revoke or annul the deed. Isham v. Railway Co., 11 N. J. Eq., 227; Andrews v. Hobson, 23 Ala., 219; Roberts v. Lloyd, 2 Beav., 376. Green, the trustee, having accepted the trust and proceeded in its execution, could not, thereafter, by his own act or default, bring the trust to an end. 27 Am. & Eng. Enc. L., 321; Skipwith v. Cunningham, 8 Leigh (Va.), 211; 31 Am. Dec., 642; McArthur v. Gordon (N. Y.), 12 Law. Rep. Ann., 667; Cruger v. IIalliday, 11 Paige, 314; Brennan v. Wilson, 71 N. Y., 502; Henderson v. Sherman, 47 Mich., 267; Henderson v. Winchester, 31 Miss., 290; Perry on Trusts, § 274."
The facts that Green failed to interpose in the active defense of the proceeding instituted by Kells to foreclose a prior in-cumbrance, and that he afterwards permitted Kells to remain in the undisturbed possession of the land, claiming it under the
It is contended for appellants that they are not precluded from recovery by the bar of the statute of limitations, (1) because the evidence does not establish the fact of an adverse holding' by Kells and those claiming under him for the statutory period; (2) because, if the fact of such adverse holding is established, Kells and his representatives cannot invoke it against appellants, for the reasons (1) that Kells was a purchaser pen-dente lite; (2) that he had recognized the trust created by the deed from John Nelson to W. H. H. Green, and had participated in the fund arising under that trust, wherefore he could not afterwards repudiate it and enter into an adverse possession which the law will recognize as sufficient to put the statute in operation against the other beneficiaries until they are distinctly informed of the repudiation of the «trust and the assertion of the hostile titlp.
1. The evidence abundantly supports the finding of the fact involved in the decree of the chancellor, that Kells and his representatives have held adverse possession of the property for more than ten years subsequent to the adoption of- the code of 1880, and before the cross bill in this cause was exhibited.
2. Repeated consideration of the record has failed to impress us with the view that the principles of Ms pendens are at all applicable to the facts involved. So far as the facts are relevant to the controversy in this phase, they are as follows:
The rule of Us pendens seems to have had its origin in the common law, but to have been formulated in one of the ordinances or rules established by Lord Bacon for the administration of equity jurisdiction. The twelfth rule was as follows: “No decree bindeth any that cometh in Iona fide by conveyance from the defendant before the bill exhibited, and is made no party, neither by the bill, nor the order; but when he comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of the court; then, regularly, the decree bindeth; but, if there were any intermissions of the suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.” Bennett on Lis Pendens, §§ 1-11. In its origin the rule seems to have been applicable only to those who purchased from the defendant, and now its most usual operation will be found in such cases. In proper cases, however, it is equally applicable as against a purchaser from the plaintiff. But we must not lose sight of the principle upon which the rule is based, nor so extend its operation as to confer new rights instead of protecting those already existing. The question involved in this cause seems to be, rather, whether by his act in exhibiting his bill, Kells thereby misled the defendants into the belief that he did not intend to attempt to have the sale1 m pais by the heirs of the trustee, and should, for that reason, be estopped to rely upon a title thus acquired, than that of Us pendens. None of the defendants to his bill had filed an answer thereto, and decrees pro confesso had been taken against those served with process. The court had neither taken the
The fact that Kells received from Green,. the trustee, payment of interest upon his debt, does not show that he waived or intended to waive, the benefit of his prior security. Nelson had a right to make payment to Kells, either personally or through the hands of another, and the receipt by Kells of such payments did not affect his claim under the prior incumbrance.
The decree is affirmed.