46 Miss. 679 | Miss. | 1872
This was an action of ejectment, brought by the defendants in error, in the circuit court of Hinds county, against James M. Bice, to recover a certain lot of land therein described, situated in the city of Jackson. To this action the plaintiffs in error appeared and pleaded the general issue, not guilty, upon which the parties waived a trial by jury, and submitted the cause to the decision of the court, which rendered judgment for the plaintiffs below. And from that judgment the defendants below bring the case to this court by writ of error, and make the following assignments of error: 1st. The court erred in overruling the motion for new trial, made by the plaintiffs in error in the court below; 2d. The court erred in rendering judgment in favor of the defendants in error; 3d. The finding of the court below, and the judgment rendered, were contrary to the law and the evidence.
It appears, from the record in this case, that H. Hilzheim, P. Hilzheim and Antoinette Hilzheim, executed to Thomas Graves, as trustee, a deed of trust, to secure the payment of a debt of near $12,000, owing by the said H. & P. Hilz-heim to Oliver Barrett, and that the lot in contest was sold under said deed of trust, by the said trustee, Thomas Graves, to the said Oliver Barrett, to whom the said trustee executed a deed of conveyance of the same, as the purchaser thereof, at said sale. And that the defendants in error claim title to the property in controversy, as heirs of the said Oliver
It is by no means easy to determine what evidence of an equitable title in the defendant, under this provision of the statute, would be sufficient to justify the court in arresting the further progress in the action of ejectment, and forcing the plaintiff into another forum for the purpose of ascertaining the strength of the defendant’s title. For we are to presume, from the language of the act, that the ejectment suit is not to be dismissed as soon as the defendant interposes
It was, undoubtedly, the province of the court to determine whether the equity interposed by the defendant was sufficient to require the plaintiff to file a bill in chancery to try the defendant’s equitable title, and, having determined that question, we are not disposed to reverse the action of the court in that respect, for the reason that the judgment is right, and for the additional reason that this anomalous provision of the statute has been since repealed. It cannot be denied that the legislature possesses the power and has the right to take away by statute what has been given by statute, unless rights have vested under the law before its repeal. Railroad Company v. Kenton County Court, 12 B. Monr. 147. The repealing act divested no vested right, and was no more than a constitutional and legitimate exercise of legislative authority on the subject of remedies. Unless there is a saving clause in the repealing statute continuing the repealed law in force as to all pending proceedings and prosecutions, the repealed law must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. Upon this principle the repeal of a statute puts an end to all prosecutions under the statute repealed, and to all proceedings growing out of it pending at the time of the repeal. And this rule applies to all proceedings, whether civil or criminal, going on by virtue of a statute at the time of its repeal. So, if a statute confers jurisdiction in civil cases, and though suits may be instituted and be pending at the time of the repeal, the jurisdiction is gone, and with it the whole proceeding falls to the ground.
So in the case at bar, upon the repeal of the statute authorizing the court to take cognizance in an action of ejectment, of an equitable title, set up by the defendant, that jurisdiction is gone, and with it such defense falls to the ground.
In this case, the plaintiffs in error, relying upon an equitable title, must resort to a court of equity to establish it, and cannot avail themselves of this defense in a court of law.
The judgment must be affirmed.