Hart v. Bloomfield

• Decision Date: 25 February 1889
• Citation: 66 Miss. 100,5 So. 620
• Court: Mississippi Supreme Court
• Parties: JULIANA HART v. HORACE BLOOMFIELD

5 So. 620

66 Miss. 100

JULIANA HART v. HORACE BLOOMFIELD

Supreme Court of Mississippi

February 25, 1889

APPEAL from the chancery court of Harrison county, HON. SYLVANUS EVANS, Chancellor.

The appellant, Juliana Hart, exhibited her bill in the chancery court of Harrison county, against the appellee, Bloomfield in which she alleged as follows: That she was the real owner of two certain lots of land in said county; that the defendant asserted a pretended claim to the lots by virtue of a deed from the state of Mississippi, executed in 1887; that this deed is wholly illegal and void, and casts a cloud and suspicion upon the title of appellant, the true owner. The prayer of the bill was for cancellation of defendant's deed. The defendant answered, denying complainant's title, and averring his own title as above set out.

The answer, bearing the signature of defendant, was filed on March 13, 1888, and contains opposite the signature the following indorsement: "Sworn to and subscribed before me, this March 13, 1888, F. S. Hewes, clerk."

Below this also appears a formal affidavit made and signed before the clerk and dated March 14, 1888.

Proof was taken, and on August 14, 1888, during the term of the chancery court, the cause was set down for final hearing by the defendant. The solicitor of the complainant took part in the trial, and the record fails to show that an objection was made by him on the ground that the cause had been set down for hearing before the expiration of the five months allowed after filing of an answer, for taking proof.

The chancellor found and recited in the decree that the title of the defendant was valid, and that the complainant had shown no title in herself, and dismissed the bill.

As evidence of her title, the complainant introduced a deed from one Leovy and his wife to her, executed in 1852. This was the only evidence introduced by complainant in support of her title, no proof being offered to show from what source Leovy and wife obtained their title, nor was any possession by them or complainant proven. There was evidence offered by complainant to defeat, and by defendant to uphold, the state tax-title relied on by the latter, but as the decision of the cause in this court is made regardless of the validity or invalidity of the defendant's title, it is not deemed necessary to set out the evidence in reference to it.

Affirmed.

W. G Evans, Jr., for appellant, filed a brief, the greater part of which has reference to the title relied on by the defendant and insisting that the same was void, and that complainant's bill should be maintained.

If the chancellor was of the opinion that the bill was not supported by the proof, it was his duty to dismiss it, but in no case where the jurisdiction is invoked to remove clouds can the chancery court try conflicting titles, and decree that the complainant had no title and that the title of the defendant is a valid legal title, and that complainant's title is a cloud on defendant's. 31 Miss. 789; 49 Miss. 229.

If complainant fails to show a good title in himself, and to show that the defendant's is shadowy and not real, the result should be a dismissal of his bill, and not a decree that defendant's title is valid.

Nugent & McWillie, on same side.

The cause was prematurely set for hearing. The bill being verified by affidavit, and the appellant, not waiving an answer under oath, our statute requires that the answer should be sworn to. Code 1880, § 1874. It was actually sworn to March 14, 1888. Not being an answer such as the law required before, the fact of its having been filed March 13, 1887, can be of no service. It can be treated as an answer only from the 14th March. Five months are allowed for taking depositions after answer is filed before it can be set down for hearing. Counting from March 15, 1888, the five months did not elapse until August 15, 1888, whereas the cause was set down for hearing August 14, 1888. The five months should intervene between the filing of the answer and the setting the case for hearing, excluding one of these dates, and including the other. Mitchell v. Woodson, 37 Miss. 567. No exception to the action of the court was necessary; the provision of the code is mandatory, and addresses itself directly to the court. Code 1880, § 1941.

While it is true that the answer traverses the allegations of the bill as to the real ownership of the appellant, this is only upon the idea that the tax-title is valid. Upon the general warranty deed by Leovy and wife to appellant, there would arise a presumption of ownership in fee, and the proceedings, fairly considered, seem to concede such ownership by appellant.

The court erred in entering a decree for appellee, and in adjudging his title to be good. There was no cross-bill filed, and the court could not, in this case, grant affirmative relief to the appellee. Dingey v. Paxton, 60 Miss. 1038; Blackwell on Tax-Titles, 125; 61 Miss. 1. The defendant did not impugn the title of the appellant otherwise than by the assertion of title in himself under the auditor's deed, and if the controversy should be restricted to the parties contesting the title, of which there is little doubt, the appellant showed the better right to the property. A court of equity cannot adjudicate conflicting titles.

In conclusion, we respectfully ask the court, if the pleadings and the mode of presentation of the evidence were such as to prevent a proper hearing and adjudication of appellant's rights to the land, to reverse and remand the case, with leave to amend the pleadings as the parties be advised, and to take further proof.

Horace Bloomfield, pro se.

The decree was properly for the defendant. The answer denied the allegations of the bill, and the complainant failed to prove them.

The suit was brought under § 1833 of the code of 1880, which is identical with the code 1871, § 975.

The complainant must show clearly the validity of his own title and the invalidity of his opponent's. He must disclose a perfect equitable or a complete legal title. Handy v. Noonan, 51 Miss. 166. Complainant must be the "true owner," and must satisfy the court that his adversary's claim is shadowy rather than substantial, apparent rather than real. Walton v. Tusten, 49 Miss. 569. The complainant failed to do this, and the decree dismissing the bill was proper.

W. P. & J. B. Harris, on same side.

It is an established rule, both in courts of law and equity, that a party must recover on the strength of his own title, not on the weakness of that of his adversary. He who comes into equity to get rid of a legal title, which is alleged to overshadow his own, must show clearly the validity of his own title and the invalidity of his opponent's. A court of equity will not set aside a legal title on a doubtful state of case. Griffin v. Harrison, 52 Miss. 824; Walton v. Tusten, 49 Miss. 569;...