Southworth v. Brownlow

84 Miss. 405 | Miss. | 1904

Whitfi:eld,i O. L,

delivered the opinion of the court.

The proof clearly shows that appellees have been in open, notorious, and uninterrupted possession of the land since the attempted sale of it to them by W. Berry Prince, the ancestor of appellant, in 1880. Since the 1st of November, 1880, when the revised code of 1880 went into effect, abolishing coverture, with all its incidents and disabilities, ,§ 2323, Code 1871, ceased to operate. 9 Am. & Eng. Ency. Law (2d ed.), 472, note 3; Miller v. Miller, 33 Am. Dec., 157; Bridgeforth v. Payne, 62 Miss., 777; Bradstreet v. City of Jackson, 81 Miss., 233 (32 South., 999). The case of Hill v. Nash, 73 Miss., 849 (19 S. W., 707), does not contravene this view, for the statute of limitation was obviated in that case by reason of the existence of the estate by curtesy in the husband. Since coverture prevented, at common law, a married woman from suing, therefore, it was not right that any act of the husband should operate a disseizin of the wife as to any lands to which she had title, or in any way prejudice or affect her rights thereto. Sinee, therefore, the whole object of the said § 2323, Code 1871, was to prevent the wife from being prejudiced because of her coverture, it follows that, when coverture was wholly abolished, there, was no longer any need for said statute. When the system of coverture fell, the statute (§ 2323, Code 1871) fell with it. More than ten years elapsed from the 1st of November, 1880, to the assertion in this suit of appellants’ alleged rights under the deed to trustees for Mrs. Prince from her father. The appellees therefore have a perfect title by adverse possession. It was error in the court below to decree specific performance of the contract made by Mr. Prince, who had no title, and whose administrator was not made a party to the bill; but this error does not necessitate reversal. The chancellor found all the facts for the appellees, especially the fact that they had more than paid for the land; but appellees have taken no cross appeal with a view to recover such overpayment.

We reverse and vacate so much of the decree as decrees specific performance, but the substantial part of the decree, which declares the appellees to be the owners of the lands involved, and perpetuates the injunction, is affirmed.

So ordered.