Walker v. Williams

30 Miss. 165 | Miss. | 1855

FisheR, J.,

delivered the opinmn of the court.

The plaintiff below brought this action in the Circuit Court of Tiskamingo county, to recover a tract of land in the possession of the defendant.

The plaintiff appears to have proved a regular chain of title from the government, to one Susan Bow, through whom he claims title.

The point for investigation is, whether he has acquired her title. For the purpose of establishing this fact, certain records were introduced, from the chancery side of the Circuit Court of said county, by one of which it appears, that one Daniel Saffarans filed a bill in said court, alleging that the south-east quarter of a certain section of land, constituted the consideration for the note described in the bill, and praying that the land might be subjected to what was supposed to be the vendor’s lien, &c. After publication under the statute, Susan Bow, being a non-resident of the state, a decree was made according to the prayer of the bill, and a commissioner appointed, who sold the land, and made a deed to the plaintiff. It being afterwards discovered that it was the southwest quarter of the same section, instead of the south-east quarter, as described in the bill, which constituted the consideration of the note, Daniel Saffarans filed another bill, the purport and object of which, it is difficult to determine from the record. We conjecture, however, from the decree, that the bill was designed to correct the mistake as to the description of the land. By the decree it is ordered, that the title of the said Susan Bow be divested, and vested in the said Daniel Saffarans, and that the plaintiff have execution for the same. There is nothing in the record to show that this decree has ever been executed. Supposing the court to have had jurisdiction of the subject-matter, and of the person of the defendant, the decree would be regarded until reversed, as a complete adjudication of Saffarans’ equity, but nothing more. It cannot of itself invest him with the defendant’s legal title. This can only be accomplished by the act of the party, or by a commissioner appointed for that purpose by the court. It is, however, manifest from the face of the bill, that Saffarans had no interest whatever in the subject-matter. Without an interest, it is impossible to conceive, upon what principle a court of equity could entertain jurisdiction. The test as to the jurisdiction is, whether he had such an equitable title to the land, as would induce a court of equity to lend its aid, in restraining the defendant from arraying against him her legal title. So far from showing an equitable title, which would be recognized as superior in a court of equity to the defendant’s title, and which would induce that court to interfere with sucb title, he shows conclusively that he never had even a shadow of right to subject the land to the payment of the note, as he holds it only as an assignee, and not as payee; the vendor’s lien not being in its nature assignable, and not passing to the assignee.

If the plaintiff’s right to recover depended alone upon the title thus shown, we would feel bound to reverse the judgment, and to grant a new trial.

But it is proved that the defendant entered into possession under the plaintiff, under a contract to purchase the land; that this contract was rescinded, and that money which was paid by defendant, refunded to him.

Them testimony, together with the admission, that the defendant was in possession at the commencement of the suit, was of itself sufficient to sustain the action, and all the objectionable testimony might with safety have been omitted.

The judgment of the court below will therefore be affirmed..