52 Miss. 291 | Miss. | 1876
delivered the opinion of the court.
Eeuben S. Manning died intestate, in DeSoto county, Mississippi, in 1858, leaving seven children and a large estate. J. A. Manning became administrator, and guardian of M. S. Manning and E. S. Manning, two of the seven children of decedent, and in due time applied to the probate court for an order to sell the interest of his said wards in the real estate of the deceased father. Upon proper proceedings the court ordered a sale of all of the real estate of Eeuben S. Manning, deceased, and the proceeds to be divided among the several heirs of said decedent, viz., his said seven children. The said J. A. Manning was appointed commissioner by said decree to sell all the lands of the estate, with direction to divide the whole of the proceeds among the heirs. The lands were all sold by stud J. A. Manning, in pursuance of the decree, on the 30th of January, 1860. The terms of the sale were one-third cash, one-
Said sale by Manning, commissioner, was duly reported to and confirmed by said probate court, and he was directed to divide the proceeds among the heirs. McCain, immediately after his purchase, took possession of the land'he bought, and soon afterwards (June 1, 1860) all of the heirs of Reuben S. Manning, except McCain’s wife, executed to him a quit-claim deed relinquishing all claim on said land, and this deed was duly recorded in DeSoto county at once. M. S. Manning was then under twelve years of age, having been born on the 24th of December, 1848.
Soon after this McCain sold' 100 acres of the land he thus purchased to Mary A. Norris for $1,100, and he paid $732 of this money to J. A. Maiming, commissioner. This 100 acres passed by successive conveyances to Emma E. Pope, who held it when this bill was filed and is a party defendant. The other of said land purchased by McCain at said sale was by him sold the 1st of January, 1866, to certain persons, who paid part cash and gave notes for the balance, and a mortgage on the land to secure them, which mortgage McCain and -wife afterwards enforced by decree and sale, at which Matthews purchased, who afterwards sold to defendant Latham, who sold a portion to defendant Bynum. McCain and his vendees have been in continuous possession of said lands to the present
In 1871 J. A. Manning and his late ward, M. S. Manning, exhibited their bill in the chancery court of DeSoto county, to enforce the statutory lien of said note of J. H. McCain for $1,950 and interest, against the said land which he purchased at said sale, on the 30th of January, 1860. The present holders of title to the land are before the court as respondents to said bill. Since the institution of this suit M. S. Manning has married, and is now Mrs. Wallace.
The respondents claimed by their answers that complainants were estopped by lapse of time and circumstances, and by the quit-claim deed mentioned, and by silence when they should have spoken, from enforcing the note against their land, and that the note was virtually and equitably paid by reason of the transfer to McCain of the interest and share of E. S. Manning as aforesaid. The chancellor made an interlocutory decree in the case, by which he ascertained and declared that complainants are not estopped as claimed by the answers, and that defendants are not innocent purchasers without notice, and that complainants are entitled to a decree for whatever sum may be due on the note filed as an exhibit to their bill, and in default of payment to have the statutory mortgage foreclosed by sale of the lands (described in the bill) to satisfy the same ; but as the court was not advised as to whom the amount due on the note, if any is due, really belongs, or how much is due, it was ordered that the cause be remanded to the rules for further proof as to
The question of estoppel made by the answers was decided against respondents by the interlocutory decree, and correctly; for it is well settled that the infant who makes a deed conveying realty during infancy has until such time as will complete the bar of the statute of limitations, after the removal of disability, to disaffirm the deed, and that hare recognition or silent ■acquiescence will not be regarded as confirmation of the sale, unless prolonged for the period required to make the statute ■of limitations a bar, or under circumstances requiring the party to decide and act as to confirmation or disaffirmance. Tyler on Inf. and Cov., pp. 84, 85, et seq.; Thompson v. Strickland, at this term.
The decree dismissing the bill was clearly wrong. It was made on the assumption that McCain, by his purchase of the interest of E. S. Manning in the proceeds of the sale of the realty, became a creditor of the fund in the hands of J. A. Manning,, commissioner, to an amount exceeding the indebtedness of McCain to the fund, and that therefore those in privity •of estate with McCain are entitled to have the claim of McCain set off against the claim against him by reason of the note. This is not the correct view of the position and rights •of parties. By his purchase of the share of E. S. Manning in the $20,570 McCain acquired, it is true, a right to call on •J. A. Manning, commissioner, and custodian of the fund, for payment of whatever was due from that fund to E. S. Manning ; but he did not acquire any right to this note for $1,950, as against M. S. Manning, the ward of J. A. Manning, to whom the note is on its face payable. The utmost extent of McCain’s right as against that particular note is to be allowed to share in its proceeds in the proportion in which his assignor, E. S. Manning, could himself share in them. This brings us
The doctrine of courts of equity as to the right of one legatee to make another refund is invoked, and it is claimed that the established principle in such cases is applicable to-heirs entitled to share in the proceeds of sale of land by a. commissioner, where one has been paid, in whole or in part, and another has not been. The rule between legatees is that-one who has not been paid can not make those who have been paid refund, if the assets were originally sufficient to pay all,, unless the executor is insolvent. Roper on Legacies, vol. 1, p. 459; Story’s Eq. Jur., §§ 90, 91.
The reason is that, by paying one legacj7, the executor has-admitted assets for the payment of all, and the satisfied legatee,, having received only what at the time he was entitled to, shall be allowed to keep what he got, protected by the principle-vigilantibus non dormientibus jura subveniunt. Therefore the-unsatisfied legatee is driven to his suit against the executor,, unless he is insolvent, befoi’e he can call on legatees who were-paid to refund. There is no just distinction in principle between legatees provided for by will and heirs deriving their right by law, and the rule applicable to legatees is, under like circumstances, applicable to heirs. In this case the subject of' controversy is a note, which, as we have said, is held in trust for M. S. Manning and E. S. Manning. This note represents
The decree is reversed and the cause remanded, to be pro ceeded with in accordance with the views herein expressed.