Toulmin v. Heidelberg

32 Miss. 268 | Miss. | 1856

Fisher, J.,

delivered the opinion of the court.

This is a writ of error to the decree of the Yice-Chancery Court holden at Paulding.

The object of the bill was to vacate a quit claim deed, held by the defendant to the land in controversy, the bill alleging that the complainant has a perfect title to the land; and that the defendant’s deed operates as a cloud upon the same. The rule is now too well settled to require comment, that to authorize a court of equity to give relief in a case like the present, the complainant must, by his pleadings, show either a legal or complete equitable title; and that failing in this respect, no relief can be granted. Our first inquiry must be, whether the complainant has brought himself within the operation of this rule; and it is not necessary that we should go beyond the allegations of the bill, and the exhibits which accompany it, to solve this question. It is alleged that one Garvin, who derived his title under the treaty of the United States with the Choctaw tribe of Indians, conveyed the land to one John Johnston, Senr., that he conveyed to one Neill, who conveyed to Mrs. Jane Lee Johnston, wife of the said John Johnston. That John Johnston conveyed by quit claim deed to the defendant, which is the deed sought to be cancelled. That afterwards, in October, 1851, Mrs. Jane Lee Johnston, together with one Wm. C. Cherry, acting as the attorney in fact of the said John Johnston, conveyed to the complainant. The question is, whether the complainant has acquired Mrs. Johnston’s title by virtue of this deed. The power of attorney from John Johnston, Senr., to Cherry, is made an exhibit to the bill, and it authorizes him to convey the lands of the said John Johnston, situate in this State, but is entirely silent as to the lands of the wife. A power executed by a husband, authorizing a conveyance of his own lands, by an agent or attorney, is no authority to authorize such attorney to convey the lands of the wife. Besides, the power only authorized a conveyance of such lands as the husband then owned; and having previously conveyed to the defendant, it conferred no authority on the attorney to convey the land in question. Mrs. Johnston’s deed must therefore be treated in all respects, supposing it to have been properly executed, as her sole deed, without her husband’s being a party thereto, and it is therefore simply a nullity.

But aside from this objection, the deed is not acknowledged according to the requirements of the statute. It does not appear that it was signed, sealed, and delivered by the wife, without the fear, threats or compulsion of her husband. The acknowledgment by the wife is not merely form. It is part of the real substance of the deed — which is not complete without the acknowledgment.

We have not thought it necessary to examine the testimony filed in the cause, as it could only establish the truth of what is alleged in the bill; and if the complainant cannot recover upon his pleadings and exhibits, admitting them to be true, of course he cannot recover upon his testimony. He cannot make by his proof a stronger case than he has made, by his pleadings — assuming the latter to be true. His testimony could only establish the truth of the allegations of the bill; and if they are not sufficient to authorize a decree, when established, the controversy is of course at an end.

Decree reversed and bill dismissed.