Goff v. Cole

• Decision Date: 30 October 1893
• Citation: 71 Miss. 46,13 So. 870
• Court: Mississippi Supreme Court
• Parties: J. M. GOFF v. INEZ COLE

13 So. 870

71 Miss. 46

J. M. GOFF v. INEZ COLE

Supreme Court of Mississippi

October 30, 1893

October 1893

FROM the chancery court of Sunflower county, HON. W. R. TRIGG Chancellor.

Appellee Inez Cole, filed the bill in this case August 3, 1891, for partition of a large tract of land in Sunflower county. This land had formerly been owned by B. F. Martin, the grandfather of complainant, who, in 1866, made a fraudulent transfer of it to his wife, E. J. Martin. Afterwards, in 1873, a portion of the land--347 acres--was conveyed by said E. J. Martin and her husband to other parties, as stated in the opinion of the court. It is in respect to said 347 acres that the real controversy in this case arises. In 1890, after the death of his wife, B. F. Martin sold the remainder of the land to appellant, J. M. Goff. As the title was in E. J. Martin, then deceased, certain of her children and heirs who were of age joined their father, B. F. Martin, in a quitclaim deed to Goff, with the understanding that they were to receive the purchase-money, and they afterwards recovered the same from B. F. Martin, or his estate. For a report of that case, see Martin v. Tillman, 70 Miss. 614. Appellee, Inez Cole, a granddaughter of E. J. Martin, being a minor, did not join in the quitclaim deed, but filed the bill in this case against J. M. Goff for partition of all the land, alleging that as an heir of E. J. Martin, she was the real owner of an undivided one-eighth interest, and that the defendant, Goff owned seven-eighths. The bill further alleged that defendant, Goff, was in possession of, and claimed, the whole of said land under the deed from B. F. Martin, and that he denied that complainant had any title whatever. It further alleged that the claim of the defendant cast a cloud on complainant's title to an undivided one-eighth interest in the land, and that the defendant deprived complainant of the possession of her interest.

The bill prayed for the removal of the cloud from her title, and that partition should be made of the land.

The defendant, in his answer, denied the material allegations of the bill, except as to the fact of his possession of the land in controversy, and the heirship of complainant; denied complainant's title, and denied that she was a tenant in common with him. The answer further averred that B. F. Martin acquired the land in controversy in 1856, and continued to own it until 1890, when he conveyed it to defendant; that the arrangement under which the title was transferred to E. J. Martin was a scheme to defraud the creditors of B. F. Martin, and that E. J. Martin, being a party thereto, neither she nor her heirs could claim any benefit therefrom.

Testimony was taken at length, and a decree was entered in favor of complainant, establishing her title to an undivided one-eighth interest in all of the land, including the 347 acres conveyed away by B. F. Martin, and for partition. From this decree, the defendant appealed.

The main contention of counsel for appellant is that complainant had failed to show any title as to the 347 acres. Further, it was contended that the decision of this court in Martin v. Tillman, 70 Miss. 614, wherein it was held that E. J. Martin acquired the land under the fraudulent transfer from her husband, was erroneous. But, as the court makes no reference to that question, and treats it as settled, it is not deemed, necessary to notice it at length, or to make any further statement.

The opinion contains such further statement of the case as is necessary, in order to understand the points decided.

Reversed and remanded.

R. N. Miller, for appellant.

All the questions involved in this case, except one, were, I suppose, settled by this court in the case of Martin v. Tillman, 70 Miss. 614. I assume that it will be useless to re-argue the matter settled by that decision. But the court will pardon me for saying, most respectfully, that the decision, in my opinion, stands alone and unsupported by authority in holding that an estoppel in pais, without a grant, can be invoked by one who has not been misled by such conduct, and who is a mere volunteer.

If that decision stands, then the only remaining question is, did the court err in decreeing partition of that part of the land to which the complainant showed no title. In a bill to remove clouds, complainant must show a perfect legal or equitable title in himself, and that there is invalidity in his adversary's title. Boyd v. Thornton, 13 Smed. & M., 338; 32 Miss. 268; 39 Ib., 796; 44 Ib., 654; 51 Ib., 166; 52 Ib., 824; Dowd v. Railway Co., 68 Ib., 159.

Defendant, who has not entered under a common claim of title, can defeat a partition suit by showing an outstanding title in a stranger to the suit. Cooper v. Fox, 67 Miss. 237.

Goff entered under B. F. Martin, and complainant is not a co-tenant of his in this 347 acres of land. Black v. Washington, 65 Miss. 60.

J. S. Sexton, for appellee.

The effort to show an outstanding title as to a part of the land is answered by the case of Griffin v. Sheffield, 38 Miss. 359, where it is held that a purchaser in fee from the husband of land belonging to the wife is, after the termination of the husband's life-estate, a tenant at sufferance of the wife, or of her heirs if she be dead. He cannot, therefore, without surrendering the possession thus acquired, purchase an outstanding title to defeat the...