64 Miss. 807 | Miss. | 1887
delivered the opinion of the court.
The appellee exhibited her bill in the Chancery Court of Claiborne County to enjoin the prosecutiou of an action of ejectment, instituted against her by the defendant to'recover certain lands, and to have him decreed trustee of the legal title for her.
The facts are found by the Chancellor to be: “ That one Joseph Noble entered into possession of the lands in controversy under a bond for title executed by JD. B. Sanford as ‘tutor’ for Isabella B. Sanford, a minor, residing in the State of Louisiana; that being so in possession, he contracted with Nannie K. Nesmith and Orville B. Rives to sell them the said lands for three thousand five hundred dollars, and to make a title upon payment in full of the purchase-money, which contract is evidenced by a bond for title; and the three thousand five hundred dollars was to be paid, one thousand two hundred dollars cash, and the balance in one and two payments, to wit, one thousand one hundred and fifty dollars on the first day of January, 1883, and one thousand one hundred and fifty dollars on the first day of January, 1884; that said Nannie K. Nesmith and Orville B. Rives assented to said contract, made said cash payment, executed their joint and several promissory notes for the said two deferred payments, received of Joseph and Sarah Noble their said bond for title, and weut into possession of the land in controversy under said agreement and bond for title; that before the cash payment was made, or the execution of said notes and bond for title, the said Nannie K. and Orville had actual and constructive notice of said Joseph Noble’s defective title to said land and knew that said Joseph Noble had no good and valid title to the same ; that about the time the first of said promissory notes became due the said Rives entered into a written contract with his co-vendee, the said Nannie, whereby he assigned to her his interest in his, said Noble’s, bond for title to them of said lands; said contract was as follows, to wit: said Rives was to remain in possession of the lands in controversy, and to have use of the gin and mill on the adjoining lands for the period of two years, beginning first
On the facts so found the Chancellor decreed that Rives held the title to the lands as trustee for the complainant, and directed an account to be taken, showing the price paid by him to Mrs. Reynaud for the title acquired by him, for which sum he decreed a lien in his favor on the lands; upon the payment of the sum so found due he directed that Rives should convey the legal title to the said Nannie, and perpetuated the injunction against the prosecution of the action of ejectment. From this decree the heirs-at-law of Rives (he having died since its rendition) appeal.
The written contract referred to in the Chancellor’s findings of facts as having been made between Mrs. Nesmith and Rives has been lost, and its contents were established by parol.
C. R. Nesmith, a mutual friend of the parties and the person by
After this written contract was made and Rives’ name erased from the notes, he held possession of the land simply as tenant of Mrs. Nesmith. There was no relationship of trust or confidence between himself and Noble. He owed him no duty either as vendor or landlord, and might lawfully acquire the real title from the real owner. ,¡
So long as the relationship of landlord and tenant existed between Rives and Mrs. Nesmith he could not deny her title to the
On the facts found by the Chancellor we are of opinion that the law is with the appellants, and that the injunction should have been dissolved and bill dismissed.
The decree will be reversed, the injunction dissolved and bill dismissed, and cause remanded to the court below to inquire of the damages that should be awarded on the injunction bond.