60 Miss. 315 | Miss. | 1882
delivered the opinion of the court.
The demurrer of the defendants, containing fourteen special causes presents in various forms the three objections that Daniel and Degraffenried acquired no title to the land by their purchase from Townsend, the trustee in the deed of trust, and from John D. McLemore, the grantor therein, and therefore could convey none to the purchaser, Price P. McLemore, for which reason the notes sued on are averred to be without consideration ; that if they acquired title, Degraffenried did not join in the contract of sale, and his undivided half interest in
It is too clear to admit of argument, and we might well add, too clear to require decision, that by the conveyances from Townsend, the trustee, and John D. McLemore, the legal title to the land passed to Wm. M. Daniel and M. F. Degraffenried. Whether they, as administrators, committed a devastavit of the estate of their testator, by investing its assets in the land purchased, was a question to be determined by the court in which the administration was pending, or in proceedings instituted against them by persons having the right to question their acts. But if the devastavit was established, its effect would only be to fix a personal liability on the administrators. It would not divest the title which they had acquired to the land bought. The legal title passed by the conveyances to the individuals named in the deed as grantees; the words “ administrators of the estate of M. F. Degraffenried,” were only descriptio personae. The objections that the contract of sale was not executed by M. F. Degraffenried, and, therefore, only title to an undivided half interest in the land passed by the contract (if it be considered a deed), and the broader one that the contract was for a conveyance as a condition precedent to the right to demand payment of the notes, and that no conveyance had been made or tendered, we will consider together.
Whether covenants are mutual and dependent, or independent though mutual, it is sometimes difficult to determine. The cardinal rule for construction, of course, is, to be guided by the intention of the parties as far as it may be discovered from the contract.
From an examination of the contract of sale it appears, that both parties entertained the erroneous opinion, that by the conveyance to Daniel and Degraffenried they acquired no title as individuals, but that title was vested in whoever might at
The administrator, in pursuance of his contract, applied to the Chancery Court in Tennessee,, and that court ratified and approved his act in making the sale ; but doubting its authority to make any decree divesting, the title which was supposed to reside in the heirs at law, because the lands were in this State, it decreed that title should be divested so far only as it had jurisdiction over lands in a foreign State.
Here the matter seems to have rested until the institution of this suit, for the bill charges that the said Price P. McLe-mor (the purchaser) “held and claimed title under said contract and decree up to his death.”
The confusion arose from the fact that the lands have been considered by the parties and by the court in Tennessee as held by the heirs at law of Degraffenried, deceased, as they would have been if owned by the deceased at his death. If they had been owned by the testator at his death, they would, it'undis-posed of by his will, have passed by descent to his heirs at law. As to such lands, because the administrator is not owner, and the heirs are, he can only divest their title by proceeding in the courts, and in conformity with the statutes, of the State in which the lands are situated. But in this case, the administrators were the owners of the land, holding it in trust for the legatees and distributees, just as they held other parts of the estate ; the land stood in the place of the assets of the estate which had been invested in its purchase, and the administrators had the same power over it that they had over the notes by which it was bought. A conveyance by the persons in whom the legal title was vested, would have conferred title on the purchaser, and to protect themselves against the legatees and distributees of the testator, it was only necessary for the administrators to procure, from the court in which their administration was pending, such authority to sell, or approval of the sale, as would have been required for the sale of any
The decree sustaining the demurrer and dismissing the bill is reversed, the demurrer is overruled and cause remanded, with leave to the defendants to answer the bill within sixty days after the mandate shall have been filed in the court below.