60 Miss. 750 | Miss. | 1883
delivered the opinion of the court.
In the year 1869, one Eoby was the owner of the lands in controversy, and made a parol sale thereof to Mrs. Allen, who was appellee’s mother. Mrs. Allen paid the purchase-money and entered into the possession of the property, upon which there was at the time a dwelling-house and between thirty and seventy acres ofland fenced and under cultivation. After the sale Roby never exercised any acts of ownership over any portion of the land. In 1876 Mrs. Allen died, leaving the appellee, her sole heir at law, in possession of the property. In 1877 the appellant Niles recovered a judgment against Eoby, which was duly enrolled and recorded. In 1878 Eoby, by a'deed reciting the facts of the previous sale to Mrs. Allen, conveyed the lands to the appellee.
Iu 1881 Niles sued out an execution under his judgment, and having levied upon the lands, advertised them for sale by the sheriff. The appellee filed the bill in this cause against Niles and the sheriff to perpetually enjoin the sale. By it she charges the parol sale, the possession and death of her mother, her own possession since that event, and the conveyance from Eoby. There is no distinct allegation of any acts of ownership done by her mother or by herself over the lands other than those which are enclosed and in cultivation, nor is there any evidence showing such acts other than that it is generally shown that the appellee and her mother have since the parol sale been in possession of the lands, residing upon them and cultivating or receiving rents for so much thereof as is in cultivation. On final hearing the injunction was made perpetual, and from that decree the defendants appeal.
Two questions are presented by the record :. First. Are the rights of a parol vendee, who has paid the purchase-money due, and who has entered upon and is in possession of the land, superior to those of a judgment-creditor of the seller. Second. Is the Statute of Limitations available as a defence to the complainant under the facts shown in the record?
It is well settled in this State that neither payment of the
A parol vendee may recover from the seller the purchase-money paid for the land, but cannot under any circumstances compel the specific performance of the unwritten contract. By such purchase no right or interest, either legal or equitable, is acquired in or to the land ; there is no contract recognized by law and therefore none which .can be enforced by the courts. Possession of lands by the grantee in an unrecorded deed, or by the obligee in an unrecorded bond for title, or by one having an equitable interest enforceable in chancery, is notice to the world of the extent and character of the interest held by the occupant in the land occupied.
But such possession cannot be notice of any other right than such as the party may have in or to the land itself, and one who occupies under a parol contract of purchase cannot set up as against the judgment-creditor of the parol vendor a title acquired after the enrollment of the judgment, though made in pursuance of an antedating parol sale. The rights of the creditor are fixed by the condition of affairs as they existed at the time of the inception/of his lien, and cannot be varied by any subsequent conveyance which the debtor could not have been coerced by the courts to make.
Has the complainant’s title become absolute by lapse of time ? As to so much of the land as lies within the enclosure and was in cultivation at the time of the purchase by her mother, over which continuous acts of ownership have been exercised since the year 1869, her title would seem beyond doubt to be established. Her mother entered claiming not in subservience to the title of the parol vendor, but claiming as owner. She and complainant have, for a length of time sufficient to confer title by limitation, been in the exclusive, notorious, adverse, and hostile occupation, certainly of that portion enclosed and cultivated, and to that extent at least complainant was entitled to
In the case before us it is distinctly charged by the bill, and the charge is supported by the evidence, that Mrs. Allen purchased all the lands described as levied on ; that she entered into possession, claiming under the parol sale ; that her right was recognized by her vendor who, since the sale, has exercised no acts of ownership over the lands or any part thereof; that Mrs. Allen during her life, and the complainant since her death, have been in such possession more than ten years immediately succeeding the levy of the execution. These facts,
The decree is affirmed.