Nixon's Heirs v. Cargo's Heirs

| Miss. | Oct 15, 1854

Mr. Justice HaNDY

delivered the opinion of the court.

This was a bill in chancery filed by John Nixon against the appellees, heirs of John B. Careo, deceased, to quiet his title to a parcel of land, and to enjoin the execution of a judgment at law for the possession thereof, which the appellees had obtained against him.

The original and amended bills state, that in the year 1815, John B. Careo owned, or claimed, title to a tract of land embracing that in controversy, at the bay of Biloxi in this State, under the provisions of the act of congress of 3d March, 1803, and other acts, which land was afterwards confirmed to him by act of congress of 3d March, 1819; that he sold and conveyed a part of the land by instrument of writing, dated 7th October, 1815, in the following words : —

“ Pass Christian, October 7th, 1815. ■ I, the undersigned, declare that I, John Baptiste Careo, have sold to Messrs. Francis Bouquie and Anthony Martin, my plantation and two cabins situate thereon, with the enclosure and all the rails, the plantation and all the clearing from the mark B. to mark B., which were marked in the presence of Joseph Ladner, and extending in depth to the bay, said plantation is situated at the bay of Biloxi, for the sum of seventy dollars, which I declare to have received in cash before witnesses.

JeaN Baptiste Cakco.”

That two stakes, marked B. and B. were set up, showing the east and west boundary of the land sold; that Bouquie & Martin took possession of the land at the time of the sale, and so continued until July, 1831, when Bouquie sold four and three quarter arpents thereof.to one Krohn for a full price paid ; that Bouquie & Martin had been partners, and in the settlement of their affairs, Martin had relinquished his interest in the land to Bouquie; that Krohn immediately took possession, and exercised acts of ownership, sold parcels of the land, and put valuable. improvements upon it to a large amount; and on the 6th December, 1837, he sold and conveyed a part of the land to John Nixon for $12,000 paid, who took possession, and has kept peaceable possession of it; that Careo lived in the neighborhood of the land until 1821 or 1822, when he died, and never made any claim to the land, and that the defendants and his heirs have, since his death, resided there until the year 1843, without setting up any claim whatever to it, and have even recognized Nixon as the owner by a conveyance of other land adjoining that in controversy, and referring to this land as his property, and well knowing that he was making valuable improvements upon the land; that one of the heirs has purchased a part of the land from Krohn, embraced in his purchase from Bouquie, and thereby recognized the validity of Krohn’s purchase ; that still the appellees have brought suit at law, and recovered judgment against Nixon for the land at March term, 1846. He claims protection as a bond fide purchaser, and prays that the defendants may be decreed trustees of the legal title for him, and compelled to convey the same to him, and for á perpetual injunction of the judgment at law.

The defendants demurred to the bill, which was overruled. They afterwards answered, in substance, as follows:—

“ That their father settled on the land, part of which is in complainant’s possession, during the existence of the Spanish gov-•eminent; that he held the land by possession only, and not by grant or purchase; and afterwards, in 1815, made a verbal sale •of the improvements to Bouquie & Martin; that he did not own the lands at that time, and it was after that sale that he was registered as a settler, and it was not granted to him by the United States until 3d March, 1819; they charge the deed to Bouquie & Martin to be spurious, and not the act of their ancestor ; they admit that Bouquie & Martin paid about seventy dollars for the improvements and clearing, but deny that that was a fair price for the settlement and improvement; they admit that Bouquie & Martin took possession, but deny that they held it until 1831, and state that they abandoned it before Carco’s ■death ; they deny the boundaries of the land claimed by com.plainant or the existence of the marks B. and B., and deny that Krohn was a bond fide purchaser, and allege that he only pur- ■ chased the interest of Bouquie; they admit improvements made ■by Krohn to the value of about $5,000, and his quiet possession until 1837; they deny that their ancestor made no claim to the ■property after the sale, and admit that they resided in the vicinity from the time of their father’s death, without asserting any title to the land ; they admit that they executed a deed referring to the land in controversy, as the property of John Nixon, in April, 1843 ; also, that one of the heirs purchased a part of the land from Krohn, but state that it was done through ignorance ■of their rights and false assertions of Krohn; they admit that Nixon took possession at the time stated in the bill, but know nothing of his purchase; they deny that the alleged conveyance by Careo to Bouquie & Martin is an executory contract or contains any covenant binding on them as heirs, or that it estops them from claiming their rights as heirs of Careo, and that if it •is valid as a deed, it conveyed a legal title which was available -at law.

Upon the final hearing upon bill, answer, and proofs, the bill was dismissed, and the complainant took this appeal.

The scope and object of the bill is to enjoin the heirs of •Careo from setting up the title at law which accrued to them by operation of the patent issued to their ancestor in the year 1844, and to have that legal title declared to be held in trust for the benefit of Nixon, under the circumstances of the case, which it is alleged show that it would be unconscientious for the heirs of Careo to hold the legal title against the equitable claim of the complainant.

We will, first, consider the objections to the relief sought, raised upon demurrer to the bill, and relied upon in the answer, as showing that the complainant is entitled to no relief in equity.

The first position taken in behalf of the appellees is, that the instrument of writing from Careo to Bouquie & Martin, in relation to the land, was the result of a mistake of law against which no relief can be granted in equity. It is admitted, for the purposes of this objection, that the instrument was intended and believed by the parties to be a valid and sufficient conveyance ; and that this was a mistaken opinion as to its legal effect. The rule in such case is well settled to be, that equity will give effect to the real intentions of the parties, as gathered from the objects of the instrument and the circumstances of the case, although the instrument may be drawn up in a very inar-tificial and untechnical manner, if the manifest intent and object of the parties be clearly discernible on the face of the instrument. 1 Story, Eq. Juris. § 168. And accordingly the cases are numerous where this principle has been applied to the execution of deeds and powers. Ib. § 169, et seq.

Secondly. It is insisted that Careo had no title to the land at the time he executed the instrument, and, therefore, that nothing passed by it.

The bill and answers show that Careo settled upon the land during the existence of the Spanish government, and held possession of it when the supposed conveyance was executed, and that he thereby had an inchoate right of donation thereof from the United States under the provisions of the act of congress of 3d March, 1803. This right was reported to congress in 1816, by commissioners appointed, and was confirmed to Careo by act of congress of 3d March, 1819.

This right, at the date of the conveyance, was not a mere naked possession. It was an inchoate right to the land, recognized by the government, and for the completion of which the party entitled to it might well rely on the good faith of the government. There was nothing in the act of congress which secured the right to prohibit the transfer of it, and there is nothing in the objects or policy of the acts which would prevent it. It was, therefore, a substantial equitable right which the party holding it might transfer; and when the title was confirmed in his name it enured equitably to the benefit of his vendee. This has been distinctly held by the supreme court of Louisiana, and we think correctly, upon acts of congress similar to, if not the same as, the acts under which the right in this case accrued. O'Brien v. Smith, 16 La. R. 94; Rhodes v. Rhodes, 10 Ib. 85. And the principle on which it is founded has been sanctioned by other courts. Jenkins v. Noel, 3 Stew. (Ala.) 77; Alexander v. Duke of Wellington, 6 Eng. Ch. R. 383; Massie v. Sebastian, 4 Bibb, 483" court="Ky. Ct. App." date_filed="1817-04-09" href="https://app.midpage.ai/document/mudds-administrator-v-beauchamp-8685312?utm_source=webapp" opinion_id="8685312">4 Bibb, 483.

The cases to the contrary cited in behalf of the appellee are decided upon the preemption acts of congress, which expressly prohibit the transfer of the settler’s right; and the acts of congress (1804, § 14, and 1807, § 1 and 2,) relied upon as prohibiting the settling or exercising acts of ownership over the public lands, refer to persons exercising such acts of possession or ownership after the passage of those acts, and not to cases of settlement and inchoate right which had taken place before the passage of those acts, and been recognized as legal, as is the ■case in this instance.

But it is said that the instrument of sale executed by Careo is not binding on his heirs, because it is not executory and contains no covenant of warranty.

If the instrument purported to be, or was in fact, a mere quitclaim of an interest in the land not then in esse, the authorities ■cited from 14 J. R. 193, and 1 Cow. 616, would be pertinent to show that the heirs were not estopped by the act. But it is ■admitted to have been intended as a valid and sufficient sale; ■and we have above seen that the right intended to be sold was a subsisting equitable one, and that the sale was not void for illegality. It purports to have been made for a valuable consideration, and to be a conveyance of his right; and it is manifest that the present claim of his heirs is utterly inconsistent with the right intended to be conveyed by him. If it were a formal bargain and sale, there can be no pretence but that it would estop the heirs; and it is conceded that it was intended as such. It must, therefore, be considered as having that effect in equity, and to fall within the general rule, that the heir cannot set up a subsequently acquired title against the deed of bargain and sale of his ancestor. Aldridge v. Kincaid, 2 Litt. 391.

It is further objected that the bill relies upon the instrument as a legal assignment of Carco’s right, and if such be its character, that under the provisions of the act of congress of 20th May, 1836, the legal title passed to the complainant as the assignee, and therefore he has no right to come into'equity to have his title protected.

But the complainant cannot be considered the legal assignee of Careo, because, 1. The instrument is insufficient to pass the legal right, for want of the necessary legal formalities, and, 2. It was not made to the complainant, but to others whose transfers are informal and only sufficient, upon principles of equity, to pass the right.

We will now proceed to consider the merits of the case, upon the points presented in the answers to the original and amended bills and the testimony.

The first question that arises is, as to the authenticity of the instrument alleged to have been signed by Careo. Henry Ahrens, a witness, states that he had the paper in his possession in 1831; he got it from Bouquie, and sent it to New Orleans to Hopman, who was agent for Bouquie in making the sale to Krohn. Hopman states that he left it with the notary, Lewis, in New Orleans, in 1831; when the sale from Bouquie to Krohn was made. Lewis, the notary’s son, saw it in 1831, when the sale was made. It was deposited in the notary’s office, but was afterwards taken out by legal process.

Several witnesses state positively,, that some time in the year 1815, Careo told them that he had sold the land to Bou-quie & Martin, and had received the money for, it. And the most of the witnesses state, that Careo never claimed the land after the sale. On the other hand, Jerome Ryan, whose name appears as a subscribing witness to the deed, states that he does not remember being called to witness the deed; and if he had been, he would not have forgotten it. It appears, also, that Careo proved his claim under the act of congress in 1816; and some other witnesses express doubts as to the authenticity of the paper.

But from all the testimony we think the paper is sufficiently established. The positive testimony, showing its genuineness, cannot be outweighed by the less positive and uncertain negative testimony. It has been suggested that it was forged by Bouquie. But this is improbable; for if he had intended to make a forgery, he would have drawn the deed in his own name, instead of the names of Bouquie & Martin, and would have observed formalities more than appears to have been done in this paper.

The next point is, How much of the land of Careo was intended to be sold to Bouquie & Martin, and was the land in controversy here embraced in the sale ?

Upon this point, there is much conflict among the witnesses. On the part of the appellees, it appears by the testimony of the surveyor, founded on the testimony of witnesses before him when he made the survey, that the land in dispute here was not embraced in the sale to Bouquie & Martin. The depositions of some other witnesses tend to prove the same result. But the great preponderance of the testimony goes strongly to show that it was embraced in the sale. Z. A. Caillavet proves the boundary lines and the stakes marked B., and minutely describes them, and that Bouquie & Martin took possession and had a house built on the land so bounded. Madame Fayard proves that her husband built a house for Bouquie on the place where Nixon’s hotel stands. Mr. Moran proves the posts, and that the sale included the land claimed by Nixon. Narcise Richard, and B. Hally prove the same thing. Several witnesses prove that Careo stated that he had sold the land, and they describe it so as to include the land in controversy. We think, from all the testimony, that the conclusion cannot be avoided, that the sale to Bouquie & Martin included the land in controversy. Indeed, the answers do not deny this; but they admit that Careo made a verbal sale of his possessory right to the property, though they deny the execution of the written instrument. Under the pleadings and proofs, we think that the inclusion of the land in the sale by Careo is sufficiently established.

The next point to be considered is, the question of possession after the sale by Careo.

And first, it fully appears that Careo neither had possession, or claimed any interest in the land after the sale, though he lived about six or seven years afterwards in the neighborhood and died there. Nor did his heirs, who have also lived in the neighborhood since his death, ever claim any interest in the property until about the year 1843, more than twenty years after the death of their ancestor.

Again. It is proved beyond dispute, that Bouquie & Martin had possession of the land purchased by them for five or six years after the purchase, and until Careo died; and that Krohn had possession from 1831 till 1837, since which time Nixon and his heirs have been in possession. There is some conflict between the witnesses, as to whether Bouquie & Martin retained possession of the property after they left that section of country to reside elsewhere. But we think that both the greater number of witnesses and the weight of testimony establishes, that they did retain possession and control of the property after their removal from the place, and until the sale to Krohn, by means of agents. This is proved by Z. A. Caillavet, N. Richard, Westbrook, Holly, Madame Fayard, and Deloney, the most of whom give the name of the person who had charge of the property for Bouquie, or Bouquie & Martin. The negative testimony on this point, is not so full and particular as that in behalf of the appellants, and we do not think it sufficient to destroy the direct testimony showing the continuance of possession or control by Bouquie & Martin after their removal.

It is not denied that the heirs of Careo were fully aware of the claim of Bouquie & Martin, and especially of that of Krohn, and still that they not only set up no claim to the property, but that they permitted him to make valuable improvements, and that one of the heirs actually purchased a part of the property from him.

But, it is said, that Krohn and Nixon must both be regarded as purchasers with notice, because they had before them the defective deed of Careo to Bouquie & Martin, through whom they derived title, and they must have had notice of the defect in the deed from Bouquie to Krohn, when the deed from Careo, which was produced, showed that the right or title, if any, was in Bouquie & Martin. Upon the last point, it may be observed, that the testimony shows that Martin had informally relinquished all his interest in the land to Bouquie, upon a settlement of their partnership affairs, about the time they removed from this State; so that although Bouquie had not power to convey a complete legal title, both for this reason, and because the paper executed by Careo did not convey a legal title, yet that he had an equitable interest which he had a right to transfer.

These objections would have great force at law upon a question of technical legal title, and doubtless had their due weight in the trial of the action of ejectment, the result of which is sought to be relieved against in this proceeding. But they cannot prevail against the rights of the parties in a court of equity.

When Nixon was about to purchase the property, what were the circumstances connected with it? He saw that it had been in the peaceable possession of those -under whom he was to derive title for upwards of twenty years, by virtue of an instrument of writing executed by Careo, which, though not a formal deed of conveyance, was yet evidence that he had sold the land, and was a sufficient writing to conclude him from setting up title against it. Careo had been dead nearly twenty years, and his heirs had set up no claim whatever to the property, though living near it, and aware that Krohn had purchased it and expended a large sum of money in improving it; and some of the heirs had actually acquiesced in his title. Under such circumstances, was Nixon not justified in purchasing the property, and will the heirs of Careo be permitted to deprive him of the property by force of technical imperfections in his title ? It cannot be a matter of doubt what the rule of equity is in such a case. It is clearly laid down by Chancellor Kent in Wendell v. Van Rensselaer, 1 Johns. Ch. R. 353, to be, “ that if one man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by the equitable estoppel.” And this doctrine has been sanctioned by this court in 24 Miss. R. 618, and by universal adoption. And it is applied with more stringency when the acquiescence has been so long as to be fortified by the legal presumptions arising from great lapse of time. In Grand Gulf Railroad, &c., v. Ryan, 8 S. & M. 279, this court says: “The authorities abundantly prove that, in favor of long possession, almost.every variety of written evidence of title will be presumed. The defective links in the chain of title will be supplied by presumption, and the title declared perfect, when the possession has continued for a great length of time without interruption.” S. P. in Stephenson's Heirs v. Mc Dreary, 12 Ib. 47 et seq., and authorities there cited.

The plea of ignorance of their rights cannot be permitted to avail the heirs, under the circumstances of this case, to defeat the equitable rights of Nixon. For the evidence tends to show, that some of them had knowledge of the alleged defects in the conveyance from Careo, and still that no steps were taken to assert their right until the property had passed into the hands of Nixon, who had purchased it for a valuable consideration. Their failure to prosecute their claim, or in any manner to assert it, must, therefore, be considered as a recognition of the equitable right of those from whom Nixon derived title, and as precluding them from setting up their legal title against the equitable right acquired by him under the circumstances of this case.

Under a full view of the merits of the case in equity, we are satisfied that the complainant was entitled to the relief sought.

The decree is, therefore, reversed, and a decree directed perpetually enjoining the execution of the judgment at law, and that the appellees release to the appellants the legal title to the land in controversy, and that the appellees pay the costs.