Sulphine v. Dunbar

| Miss. | Oct 15, 1877

Campbell, J.,

delivered the opinion of the court.

The bill presents no equity as against Mrs. Stampley and Miss Dunbar. Their legal title is wholly independent of Celeste Dunbar’s. They acquired it by the same conveyance by which title to one-fifth interest was vested in Celeste Dunbar, it is true, but they hold by purchase, and not by descents

The one-fifth interest of Celeste Dunbar was vested in the appellant by the deed of trust executed by herself and her husband, and his purchase under that, but the interest of her children was not affected in any way by her conveyance ; and the appellant has no right, as against them, unless by virtue of some act of theirs. The interest of Celeste Dunbar in the land had been vested in the appellant before the death of Mrs. Dunbar, and her children cannot claim, and are not shown to attempt to claim, anything by descent, as against the appellant. Neither Mrs. Stampley nor Miss Dunbar is shown to> have done anything to estop them from asserting their legal title in defense of the action of ejectment.

There is no charge in the bill against Miss Dunbar, and the only averment as to Mrs. Stampley is that she was on the land, and knew of the sale under the deed of trust, and did not proclaim her rights, and warn purchasers not to buy. She had a right to be silent. Her title to an interest in the land was indisputable, and the world had notice of it. She did nothing to mislead or deceive the appellant, or to induce him to purchase the land, and she was under no obligation to forbid the sale, or to warn the appellant not to buy. She was not present at the sale.

Joseph O. Dunbar was present at the sale and urged the ¡appellant to buy the land, but tlie bill does not claim that the ■appellant was ignorant of the true state of the title, or that 'he was mislead by the representations and solicitations of .Joseph O. Dunbar, or that he bought the land on the faith of .any representations made by him, or that he was deceived in ¡any respect by him. There is no ground for estoppel by con•duct as to Joseph O. Dunbar.

The attornment of Joseph Dunbar and Celeste Dunbar did ■not affect the right of the children, who were in possession of tthe land before, in virtue of their ownership of it as tenants in common, to remain in possession; and although the bill ¡avers that they remained in possession with the consent of .Joseph and Celeste Dunbar, it does not show that they came 'in under them as sub-tenants, and they were not estopped to deny the title of the appellant because of the attornment of .Joseph Dunbar and Celeste, his wife.

The defendants are not affected by the decree in the case of .John T. Lamkin against them. That is res inter alias acta. "The appellant cannot invoke any aid from that. There is a •complete want of mutuality. He is a stranger to that decree.

The bill was demurrable as to all of the defendants, and Their demurrer was properly sustained.

Affirmed.