Harvey v. Briggs

• Decision Date: 03 November 1890
• Citation: 8 So. 274,68 Miss. 60
• Court: Mississippi Supreme Court
• Parties: MARY HARVEY ET AL. v. J. J. BRIGGS

8 So. 274

68 Miss. 60

MARY HARVEY ET AL. v. J. J. BRIGGS

Supreme Court of Mississippi

November 3, 1890

FROM the circuit court of Rankin county, HON. A. G. MAYERS, Judge.

The opinion states the facts.

J. R Enochs and A. J. McLaurin, for appellants.

We concede plaintiff's right to one-half of the land. But before he can recover as to the other half, he must at the outset show that he has a right to avoid the sale by Dora and Ella Briggs on account of infancy. This privilege is a personal one. Alsworth v. Cordtz, 31 Miss. 36. But if he can avoid their deed, he can only do so as they could have done. They could only have avoided it by paying back what they had received. Hill v. Anderson, 5 S. & M. 224. The presumption is that the money was paid by Harvey to his vendors. Nims v. Nims, 1 So. 527. The deed is good until avoided, and unless it is shown to have been avoided, it is a bar to this action.

There were two other children of Briggs, besides plaintiff--Dora and Ella. It is not shown that they were minors at the time of the conveyance to Harvey. The presumption, therefore, is that they were of age. The statute of limitations begins to run against all persons except those under disability. The rule is that the statute runs; the exception is that it does not. If, then, the statute began to run as against them, they were barred before this suit was begun, and if they were barred, plaintiff was barred. Tippin v. Coleman, 61 Miss. 516.

The certified copy of the deed from Courtney and wife is filed with our brief, and shows that it was made to M. A. Harvey wife of F. A. Harvey, instead of to the latter. We submit this because the agreed statement of facts refers to the deed and the place of its record, and it was clearly the intention of the parties that the court might examine the deed. This deed is a warranty deed, and makes the holding of Harvey adverse, and not as tenant of the life estate. Smith v Shane, 22 N.E. 924.

Again Dora and Ella Briggs had no life estate, and their deed shows that they intended that he should hold adversely. Harvey held adversely to them, although the statute of limitations did not run against them. His holding could not be said to be theirs, and did not, therefore, go to make up the required time to confer title by prescription.

Cole & White, for appellee.

Mrs. Courtney, the mother of appellee, could only convey her life interest in the lands, and at her death Harvey became tenant at sufferance to the heirs of Briggs, the appellee being the only one living when this suit was brought. Day v. Cochran, 24 Miss. 261; Griffin v. Sheffield, 38 Ib. 359.

Appellant cannot defeat this action by showing that he obtained an outstanding title barred by the statute of limitations. The deed from Mary McReary to Harvey was made twelve years after Briggs' entry. Freeman v. Cunningham, 57 Miss. 71.

The possession of appellee's father, under a deed claiming title to the whole of the land at the time of his death, is sufficient to entitle plaintiff to recover. McClanahan v. Barrow, 27 Miss. 664; Spear v. Burton, 31 Ib. 547.

The personal representative or heir of an infant may disaffirm the latter's deed made during infancy. 3 Washb. on Real Prop. § 265; Wood, Landlord and Tenant, 148; 2 Kent Com. § 237; Tyler on Infancy, 59; Smith on Contr. 324; Schouler's Dom. Rel. 530-536; Devlin on Deeds, § 86; Ewell on Infancy, 83.

It was not necessary upon disaffirmance of the deed to return the consideration. Brantley v. Wolf, 60 Miss. 420. The disaffirmance renders the deed void ab initio. French v. McAndrew, 61 Miss. 187.

Calhoon & Green, on the same side.

Harvey entered under the title of Briggs, under a purchase from his widow, and hence while in possession cannot dispute that title as against the heirs of Briggs. Harvey's possession cannot be defended under another and different title acquired after entry. Stewart v. Matheny, 66 Miss. 25; Hignite v. Hignite, 65 Ib. 441.

It is plain that the title of the ancestor of plaintiff was a clear legal title to the whole land ten years after 1869. No disability is shown in White's heirs, in 1861, when he died, or since. The deed by them and Graves to Harvey was conceded on this record to be by a party out of possession, and was not the assertion of title so as to stop the statute; though if it was, it was two years after Briggs' title became invincible.

Appellants cannot in this court file a copy of the deed from Mrs. Courtney to show that it was a warranty deed to the wife of Harvey instead of to him, as the agreed statement of facts shows. To admit this deed now, would be to make a case outside the agreement. Even if it was a warranty deed by the widow having dower only, it would not be notice to the minor heirs of adverse claim, and especially not until they were adult. Hignite v. Hignite, supra.

OPINION

WOODS, C. J.

This is an action of ejectment which was tried on an agreed statement of facts, in writing, before the court, a jury having been waived.

This agreed statement of facts shows that the lands in controversy were conveyed, in 1855, by the original purchaser from the government, one Wright, to Graves and White; that, in 1869, the attorney in fact of Graves, one Compton, conveyed by deed the whole of said land to R. W. Briggs, the father of plaintiff below--the appellee--and that R. W. Briggs entered upon said lands, under the Compton deed, and occupied and openly and notoriously asserted title to said lands so long as he lived; that R. W. Briggs having died in possession, and asserting title to the whole of the lands some time before November, 1876, and his widow having after his death intermarried with J. E. Courtney, Mrs. Briggs-Courtney and her then husband, and two of her minor children by Briggs, the former husband, to wit, Ella and Dora Briggs, executed and delivered their deed to said lands to F. A. Harvey, the father of the defendant below--the appellant--on November 24, 1876; that at the date of this deed to F. A. Harvey, there were five children, including Dora and Ella, living the fruits of the marriage of R. W. Briggs and wife, and that all three children were then minors, and that all, Dora and Ella the minors joining in the deed to F. A. Harvey included, died in infancy and before attaining majority, save and except this plaintiff, J. J. Briggs, and that he was of the age of twenty-two years when he instituted this suit; that R. W. Briggs, plaintiff's father, during his lifetime, and his widow and their children after his death, occupied and held possession of said lands: that F. A. Harvey, the father of defendants, took possession of the lands in 1876, under the deed from Courtney and Mrs. Briggs-Courtney and the minors, Dora and Ella Briggs; and that he, Harvey, and those claiming under him, have held continuous possession of the premises until the commencement of this suit; and that, at all times, while so holding, all these parties have openly and notoriously claimed title to the lands; that R. W. Briggs died intestate, and that there was never administration upon his estate; that White, the original joint purchaser with Graves, in 1855, from Wright, the patentee from the government, died in 1861, leaving three heirs, John E. and Belle White and Mary McReary, and that Mary McReary having received from John E. and Belle White and Graves, the joint purchaser with her father, a conveyance of their respective interests in said lands, by her deed conveyed the lands to this defendant, J. B. Harvey, in the year 1881; and that defendant relies upon the McReary title, though he received possession of the premises from F. A. Harvey, his father, who entered under the conveyance from Courtney and wife, and Dora and Ella Briggs.

There are some other facts recited in the agreement which appear to us to be immaterial to the proper determination of the issues presented, and whose introduction here would prove unnecessary and confusing.

Before proceeding to consider the case on this agreed statement of facts, it will be helpful to dispose of one or more questions presented by counsel for appellants.

1. In the agreed statement of facts, in each instance where it is agreed that there was a conveyance, it is added that the deed is of record, in a particular deed record, in the proper office, in Rankin county; and when the agreed statement declares that there was a deed from Courtney and wife, and Dora and Ella Briggs, to F. A. Harvey, it is added that this deed is of record in deed book 31, in the chancery clerk's office of Rankin county, on page 345 of that book.

Appellant's counsel have procured a certified copy of the record thus referred to, from which it appears that this particular conveyance was, in fact, made, not to F. A. Harvey, the father of defendant, but to Mrs. Martha A. Harvey; and we are asked to consider this certified copy of that record in determining the cause.

To comply with counsels' desire would be to now...