Bolton v. Roebuck

• Decision Date: 02 April 1900
• Citation: 77 Miss. 710,27 So. 630
• Court: Mississippi Supreme Court
• Parties: CLAIBORNE W. BOLTON v. TOBIAS ROEBUCK

27 So. 630

77 Miss. 710

CLAIBORNE W. BOLTON v. TOBIAS ROEBUCK

Supreme Court of Mississippi

April 2, 1900

March 1900

FROM the circuit court of Pontotoc county, HON. EUGENE O. SYKES Judge.

Bolton the appellant, was plaintiff in the court below; Roebuck, the appellee, was defendant there. The facts are stated in the opinion of the court.

Affirmed.

J. D Fontaine, for appellant.

In ejectment, only the legal title is involved, and equitable defenses are inadmissible. Morgan v. Blewitt, 72 Miss. 903; Edwards v. Edwards, 15 So. 42.

The vendee under an executory contract cannot defeat ejectment by the vendor, even though all of the purchase money has been paid, because he has not a legal title. Collins v. Doe, 33 Ala. 91; Nickles v. Haskins, 17 Ala. 619. And in order to fix an equitable charge upon the land, he must submit to a judgment in ejectment and then resort to chancery. Bonner v. Lessley, 61 Miss. 392. Even a petition to have the case transferred to the chancery court, to the end that he might interpose his claim to have the title to the land divested from the plaintiff and vested in himself, cannot be granted, because in this action the legal title to the land alone is involved, and that should be tried in a court of law. Edwards v. Edwards, 15 So. 42, and although, as a general rule, possession acquired under an executory contract of purchase, being rightful in its inception, something ex post facto must be done to make it tortious. He must repudiate the contract under which he entered, and fail to comply with its terms. The equities between the parties must be determined in another proceeding. Moak v. Bryant, 51 Miss. 560; Gregg v. Von Phul, 1 Wall. (U.S.), 274.

The appellee (vendee) was in default in this case at the time of the sale and conveyance of the land to F. W. Bolton, appellant's vendor. He had purchased the land from Selina Huntington, ancestor of F. W. Bolton's vendor, in 1885, and had not paid the purchase price in 1894, when sale and conveyance was made to F. W. Bolton. He had wholly failed to comply with the terms of the executory contract of purchase under which he entered, and his possession could do no more than give F. W. Bolton, the purchaser, notice of the title or contract under which he held possession of the land. Strickland v. Kirk, 51 Miss. 795. And, moreover, the sale of the land to F. W. Bolton operated as a rescission of the contract with appellee, Roebuck, and they could not enforce the contract against appellee, or recover possession of the land. Clymer v. Powell, 56 Miss. 672.

W. D. Anderson, for appellee.

By the verdict for the defendant the jury found that the bond for title had never been canceled, that Roebuck had never become a tenant. These questions were in issue as well as the question whether F. W. Bolton paid the land out for Roebuck, or bought it outright and rented it to him. The finding of the jury will not be disturbed unless palpably unsupported by the testimony. Railroad Co. v. Doggett, 67 Miss. 250; McAlexander v. Puryear, 48 Miss. 420; Buckingham v. Walker, 48 Miss. 609.

There is nothing in the proposition contended for by counsel for appellant that the defense set up by the defendant in this case is an equitable one.

It must be borne in mind that the legal title alone is not in issue in an ejectment suit, but the right to the possession as well. Kirk v. Hamilton, 102 U.S. 578; Dickerson v. Colgrove, 100 U.S. 68. The vendor in a bond for title that is valid and subsisting cannot recover in ejectment against the vendee. He could show the legal title, but his case would fail because he could not go further and show that he was entitled to the possession. The same would be true of his subsequent vendee, who would have no better right than the vendor. The Mississippi cases cited by counsel on the other side have no application to the question. Those cases hold that the legal title is involved in an ejectment suit but they do not hold that...