70 Miss. 813 | Miss. | 1893
delivered the opinion of the court.
The bill was filed in time, but the complainant, having received the proceeds of the sale by her guardian of what was set apart to her in the partition suit, must be held estopped afterwards to question that proceeding. Whatever may be said of the partition suit, it resulted in partitioning the 720 acres of land, and assigning as the share of complainant a half-interest in that part of the tract south and west of Oktibbeha creek. This half-interest thus set apart to the complainant, as her share of the whole tract, was sold by her guardian, and the proceeds of the sale accounted for by him, .and, since attaining her -majority, and, as must be assumed, with full knowledge of all the facts, she has held her former guardian accountable for this very money, obtained a decree against him made up in part of this sum, and received satisfaction of it. It is not admissible to treat her as still entitled to a partition of the lands on the other side of the creek. The half-interest set apart for her was for her share of the whole tract, and, having received the money for which that
Decree reversed, and bill dismissed at the costs of the complainant in this and the chancery court.
Afterwards, Witherspoon § Witherspoon, on behalf of appellee, filed a motion, supported by affidavits, to show that certain receipts alleged to have been given by appellee to her guardian, which were embraced in the record, were improperly copied therein; that the said receipts were offered in evidence on the hearing of the case, but, on motion of complainant, were excluded, on the ground that there was no evidence to identify the same or to show their execution. Further, in support of this motion, it was shown that counsel for appellee were not aware, until after a reversal of the decree, that these receipts had been improperly embraced in the record, and a perfected transcript of the record was filed. A brief in support of this motion was filed, but, in view of the opinion, it is not necessary to give this. Counsel for appellee also filed a suggestion of error, discussing the evidence at length, and making the following points:
1. The record does not disclose that complainant claimed or received the proceeds of the sale of the land west of the creek, as stated in the opinion. The court was evidently misled as to this by the assertion of opposing counsel and the form by which the record was made up. The alleged receipts were papers copied in the record without any bill of exceptions, or without being identified in any proper note of evidence. As to this, see 1 How. (Miss.), 333; 3 Ib., 172; 4 Ib., 326; 4 Smed. & M., 431.
It is not true that appellee claimed the $350. On the contrary, she expressly repudiated the whole transaction out of which this sum arose. The sale was attacked as fraudulent and void. Unless the court indulges in presumptions favor
2. At most, the appellee did not receive any more of the $350 than that portion which represented her interest in the land west of the creek. She had a right to receive that much, and could not be estopped by receiving her own. It is an erroneous application of the doctrine of estoppel to hold that, because she received the value of her own property, she is estopped to claim other property.
The case of Handy v. Noonan, 51 Miss., 166, cited in the opinion, decides that the receipt by a ward, after majority, of the purchase-money arising from a void guardian’s sale is a bar “ in the sense and to the extent of working an estoppel in equity against an assertion of the legal title.” Under this, if Mrs. Walker had received the $350, she could not now assert the legal title to the land that was sold, because such receipt would be a confirmation of the sale. But to confirm such sale is not to admit that the interest in the land sold was all that she was entitled to receive. The proceedings being void, the case stands as if no partition had been made.
delivered the response of the court.
The motion is denied, not for want of power in the court to protect itself and litigants and do justice in the case made by the motion and affidavits (as to that we have no doubt), but because the conclusion heretofore announced as to the preclusion of Mrs. Walker to disturb the partition of the land after having received the fruits of it, is not so dependent on the receipts alleged to have been improperly put in the transcript as to be avoided if they were left out. An undivided half-interest in the land on the south and west of the creek was set apart as the full share of Julia (now Mrs. Walker), and it was dealt with as hers. Her guardian obtained an order of court, and sold it and got pay for it, and charged himself with the money, and that constitutes a debit in the decree obtained by Mrs. Walker in her proceedings to
More than this, the decree rendered in this case, by the chancellor, in favor of Mrs. Walker, recognizes the fact that .she has received the proceeds of the sale of her half-interest in the lands assigned her in the partition proceedings, and, denying her claim as to that, awards her a one-sixteenth interest in lands other than those. It thus appears that the decree rests upon the fact that the half-interest south and west of the creek had been sold as the property of Mrs. Walker, and the proceeds received by her, so as to estop her to claim as to that.
The error of the decree consists in allowing a recovery of part of the other lands, our view being that the half-interest in certain land having been set apart as her share of the whole, and that thus set apart having been sold by her guardian, and the purchase-money having been received by her, in the way stated above, she cannot now be heard to complain of the partition. We regret that any error of mistake should have occurred in making the transcript.for this court, but are satisfied, from all that is presented, that this is -a case for the application of the beneficent doctrine of estoppel, applied by our decision.
The affidavit of the chancellor, submitted in support of this motion, shows that the receipts for money, which the transcript on which we decided shows were in evidence, were objected to as not proved, and that evidence to prove their genuineness was offered and excluded. It is suggested by this, that the truth of the case is, that, by inadvertence of counsel, notice of a purpose to prove exhibits at the hearing had not been given, and hence the rejection of evidence to prove them. We are morally certain that Mrs. Walker has -obtained a decree against her former guardian and his surety
Motion denied.
