52 Miss. 475 | Miss. | 1876
delivered the opinion of the court.
It is conceded that the sale made by the probate court, at "the instance of Robert McGinty, guardian, was void. The defendants, who derain title by mesne conveyances from the purchaser at the guardian’s sale, rely upon the statutes of limitations of five and ten years in bar of the relief.
The complainant’s title is this: In 1836 George W. Ball conveyed to R. J. McGinty the property described in the pleadings, in trust for the use of Joseph R. Kirby, Mariah Kirby, and Lidia P. McGinty (now Mrs. Parmele, the complainant), children of Hannah, the sister of the grantor, mother of the cestui que trust, and wife of R. J. McGinty. The property was charged with an incumbrance of several installments of purchase money due from Ball to his vendor, .amounting in all to about $2,900. After these debts were paid off, then McGinty was to hold the property and apply its rents and income for the use of the cestui que trust during then-respective minorities, and, as they attained majority, to convey ffhe one-third interest to each, respectively.
Mrs. Parmele was born the 7th September, 1834, was married when about seventeen years of age, and is still covert. She attained majority in 1855. The debts charged upon the property were paid off in full by the trustee in 1837, by reason whereof, as the complainant alleges, the complete ■equitable title rested in the beneficiaries, free from all con■ditions and incumbrances.
It is not denied that more than ten years — deducting the' time of the suspension of the statute of limitations, by the act. of 31st December, 1862 — elapsed after Mrs. Parmele attained her majority before the institution of her suit.
The 2d article of the Code of 1857, p. 399, enacts that no' person claiming any land in equity shall bring any suit to-recover the same but within the period ill which he might, have made entry or brought suit to recover the same * * * if the estate had been legal. Prior to the revision of 1857, suits in chancery in reference to trust estates and equitable-titles were not in terms embraced in the statutes of limitations. The section of the Code above referred to could only operate from its date upon the complainant’s title. If the case-rested alone upon the statute, the time has not expired. Although statutes of limitations in terms only include remedies in courts of law, courts of equity, from analogy, adopted the statute and applied it to equitable titles in respect of' both real and personal estate, and withheld aid from complainants who had slept upon their rights until an adverse possession had been held against both the trustee and' cestui' que trust long enough to bar the legal estate. Where the trust is direct, not dependent upon implication of law, or to be made-out by evidence as between the trustee and cestui que trust, the-statute does not apply. The distinction between the two sorts-of trust was adverted to in Jordan v. McKenzie, 30 Miss., 35. There the complainant sought to avoid the bar set up by the purchaser of the slaves from the administrator, on the idea that he should be treated as holding the relation of' trustee to the distributee in the sense that the administrator did. But it was held that whilst the administrator could not plead the statute against the distributee, a purchaser from him could.
■ The courts had long been vexed with the question whether,, if the trustee was barred, the equitable estate dejoendent upon
It was put at rest in England by the case of Ehohnondely v. Clinton, 2 Jac. & W. Ch., 1, and in this country by Kane v. Bloodgood, 7 Johns. Ch., 90, that so long as the direct trust subsists it was not affected, between the trustee and cestui que trust, by the statute of limitations. In order that the statute may be successfully invoked there must be an adverse possession both against the trustee and cestui que trust; for so long as the trustee is in possession, it will be referred to his right; if the cestui que trust, is in, it will be attributed to his beneficial right, and is not inconsistent with the title of the trustee. But if there has been a disseizin by a stranger, who occupies adversely to both, and he holds and enjoys for the time limited, he may interpose the bar against
Although for a time there was some vacillation in the judicial mind, it seems to be now settled and acquiesced in as the rule that if the equitable title to laud be not enforced within the time that would, in corresponding circumstances, defeat the legal title, a court of equity, following the law and adopting its analogy, will decline to give relief. Bond v. Hopkins, 1 Sch. & Lef., 428; Medlicott v. O’Donnell, 1 Ball. & B., 156; Angell on Lim., § 473.
The saving clause of the statute only extends to the person to whom the right first accrues. When the statute once begins to run, it continues without interruption by a subsequent disability. The uniform interpretation put upon the British statute of James, and the American statutes drawn from that original, has been that when time has begun to run it will not stop; and when a disability existing at the time the right accrued has been removed, the time cannot beeii larged and extended by adding to it a subsequent supervening disability. The general rule is affirmed in Dease v. Jones, 23 Miss., 133. If infancy were the disability when the right vested or came into existence, that disability alone should be taken into account, although the infant, before attaining majority, might become covert. That question came into judgment in Eager v. Commonwealth, 4 Mass., 182; Bunce v. Walcott, 4 Day (Conn.), 298, and Demorest v. Wyncoop, 3 Johns. Ch., 129. It was held in these cases that after the infant attained
But the question of adverse possession in bar of the relief must be as distinctly averred and proved as in the ejectment suit at law, where that defense is made. The complainants do not allege that the property is held adversely, unless conveyed in these words : “ that the defendants, by virtue of said deeds, claim and pretend to be the owners of said lands, by title derived through mesne conveyances from said McGinty.” The defendants say that they claim under these deeds, and that they and their vendors have been in the possession of the prop-eiiy from their respective dates. The bill sets out the title under which defendants claim, but is silent as to the possession. We think that the defendants assumed the affirmative of that allegation, and rrpon them rested the necessity of making the proof. . To constitute adverse possession there must be visible and notorious occupation, with a claim asserted.
The principle is well sustained by authority, and sanctioned by reason and conscience, that a void or voidable sale made by an executor, administrator, guardian, or other trustee may be confirmed by the devisee, heir, ward, or cestui que trust if,, at the time of the confirmatory act, the facts were known. The principle has had application where the money arising from the sale of land has been received bjr the heir from the administrator, or where it has been applied in the payment of' the debts of the decedent, which were a charge in law' upon the land. In the latter case the heir was held bound to refund the money thus applied as chargeable upon the land. Jayne v. Boisgerard, 39 Miss., 799 ; Short, Adm’r, v. Porter, 536; Lee v. Gardener, 26 ib., 548; Kemp v. Pintard, 32 ib., 324; Wilie v. Brooks, 45 ib., 542.
The accounts of McGinty show that he charged himself with the money, the proceeds of the sale to Vick, and credited himself with nearly the like sum invested in the purchase of other lots, the title to which was taken to himself, upon the same trusts and uses, substantially, as in the deed from Ball to himself. This purchase was made from Vick and Brabston. The deeds exhibited with the answer disclose that after Mrs.
These evidences prove that Mrs. Parmele has actually realized o1it of property, derived in part, at least, from the money received-,by her guardian from Vick, a sum more than equal to the price paid by Vick, and larger than the cost of the purchase with the trust funds. This is a confirmation of the voidable sale made to Vick, although Mrs. Parmele was covert at the time the confirmatory act was done. 1 Story’s Eq., 385, a. A married woman was party to a parol partition of lands. Subsequently she sold the premises allotted to her. This affirmed the validity of the partition. Baker v. Lorillard, 4 Comst., 257-262. In Kemp v. Pintard, 32 Miss., 328, 329, the doctrine is distinctly admitted that the feme covert may affirm a voidable sale. Says the court, “ it would require some act on her part amounting to a consent that the sale should stand, before her right would be lost.”
It is further said, if she had received the purchase money, or had consented to the arrangement which her husband had made; that would have been an affirmance of the sale'.
We think that the last ground of defense has been sustained, •and therefore affirnqthe decree.
Beargument was granted, upon which Simrall, C. J., ■delivered the following opinion :
A reconsideration of this case was granted at the last term ■of this court on the single question of whether there had been .a confirmation of the sale* made by her guardian, of lot 246, or whether anything had been done by her after she attained majority which, in equity, ought to estop her from asserting title to that lot.
The substantive allegation of the complainants is that the money derived by McG-inty, guardian, was invested in the
The summary amounts to this : that McGinty was authorized by the probate court to purchase lot 265, square 52, with the money of the wards; the purchase was made, and the deed repites that the funds'of the wards were used to pay the price. The guardian charges himself with what he received for the lot solpl, and states that he had paid out the price of the lot bought.
Fifteen years after .these transactions, and after Mrs. Par-
We are satisfied that the statement in the guardian’s account, that lot 165 was in square “42,” is a clerical error. The authority of the probate court was to buy lot 265 in square 52. The purchase was reported to be of that lot. The deed is for that lot. It is not pretended that any other real property was purchased for the wards. There is no room to doubt that the lot referred to in the account is the same lot mentioned in the report and the deed.
Mrs. Pannele has received the foil benefit of the price obtained by her guardian for the lot sued for. She cannot retain that, and at the same time recover the property. We adopt the views of the former opinion on that subject and affirm the decree.