Hill v. Nash

• Decision Date: 13 April 1896
• Citation: 73 Miss. 849,19 So. 707
• Court: Mississippi Supreme Court
• Parties: W. J. HILL v. LIZZIE L. NASH ET AL

19 So. 707

73 Miss. 849

W. J. HILL v. LIZZIE L. NASH ET AL

Supreme Court of Mississippi

April 13, 1896

March 1896

FROM the chancery court of Yalobusha county HON. B. T. KIMBROUGH Chancellor.

The facts are stated in the opinion of the court.

Affirmed.

R. H Golladay, for appellant.

The bill, before amendment, would necessarily have been dismissed. Complainant must be the real owner, and satisfy the chancellor that the adverse claim is shadowy, etc. Watson v. Tusten, 49 Miss. 575; Griffin v. Harrison, 52 Miss. 826; Handy v. Noonan, 51 Miss. 170. Complainant must show clearly the invalidity of his opponent's title, and the validity of his own. Handy v. Noonan, supra; Railroad Co. v. Neighbors, 51 Miss. 420.

A bill is not maintainable if it alleges that complainant is the true owner by purchase from one whose title it fails to show. Harril v. Robinson, 61 Miss. 153. The complainant must show such title, legal or equitable, as would enable him to recover in ejectment, the title being legal. Chiles v. Gallagher, 67 Miss. 423; Wilkinson v. Hiller, 71 Miss. 679. True, the better title from a common source entitles to relief. Bank v. West, 67 Miss. 729. It did not appear, before amendment, that complainant and defendant claimed from common source. That appeared by the answer, and could not be availed of by complainant. If a demurrer would hold to a bill, the courts will not grant relief on the hearing, even though defendant answers. Story on Eq. Pl., § 257. No relief is granted on facts not alleged in the bill, though such facts be apparent from other parts of the pleadings and evidence--secundum allegata et probata. Story on Eq. Pl., § 257; 11 Pet. R., 229; 4 How. (U.S.), 298; Geo. Dig., 897; Tierney v. Klein, 67 Miss, , 173.

The chancellor, in vacation, had no power to allow the amendment, in the absence of, and without the knowledge of, defendants, and without opportunity to answer or amend. Such amendment could be allowed by the court only. The doctrine of amendment does not permit such practice. Code 1892, §§ 542 et seq., and cases cited under § 542.

It is claimed by the bill that N. P. Ragan was tenant by the curtesy in the land claimed. This position was abandoned at the hearing, in view of Stewart v. Ross, 50 Miss. 776, and there was no dispute that N. P. Ragan's curtesy right was limited to "real estate" of which his wife, N. J. Ragan, died seized and possessed. Code 1871, § 1786. She never was seized and possessed of the land claimed in this suit. The deed by Azlin and wife to her was made in May, 1866, and, in less than a month afterwards, Azlin and wife conveyed the land to N. P. Ragan, and N. P. Ragan went into possession. She died in February, 1879. N. P. Ragan took possession, and, in 1877, conveyed to Clark. There was no evidence to show under what title N. P. Ragan took possession; presumably, his own. She did not die seized and possessed. Years before her death, she and her family removed permanently to another residence in Water Valley, in which residence she died. The land in controversy had gone into the possession of Clark, vendor of appellant and vendee of N. P. Ragan. She knew of the sale to Clark, and expressed her approbation, and preferred no claim. Seizin is either in fact or in law. To constitute seizin in fact, there must be actual possession. An example of seizin in law is where an ancestor or devisor dies leaving his land vacant. 1 Wash. R. Prop., p. 47. The law deems every possessor to be in the legal seizin and possession of the land to which he has a complete and perfect title. Angell on Lim., § 384. A true and perfect title must be derived from the government. The limitation of ten years confers title, but the limitation does not run until title has passed out of the government. Redfield v. Parks, 132 U.S. 239; 44 N.H. 462; 68 Miss. 159; 40 Miss. 504; 70 Miss. 581. Mrs. Ragan did not have a perfect and complete title, and Clark had possession before and at the time of her death, and N. P. Ragan was not a tenant by curtesy, and there was no obstruction to complainants' suit the moment their mother died. More than ten years has elapsed since her death. A court of equity will refuse to aid a complainant if guilty of laches, though the statutory bar has not elapsed. Pom. on Eq. Jur., §§ 418, 419; 2 Story on Eq. Jur., § 1520; 96 U.S. 617, and cases cited; Abraham v. Ordway, 158 U.S. 420; 12 Am. & Eng. Enc. L., 550, 572; Patrick's heirs v. Chenault, 6 B. Mon., 315. In Mississippi, by the statute and decisions, when the bar has attached at law, equity is controlled by it; but when the bar has not attached, equity, in a proper case, will refuse its aid by virtue of its inherent powers. 1 Pom. on Eq., § 419.

Mrs. Ragan estopped herself by her language and conduct to Clark. In conscience, she ought, when advised of Ragan's sale to Clark, to have set up her claim. She not only did not do so, but actually led him to believe that she approved it. When silence becomes fraud, it will operate as an estoppel. 55 Miss. 261; Dickson v. Green, 2 Cush., 612; Nixon v. Car Co., 6 Cush., 414.

Kimmons & Kimmons, for appellees.

The chancellor decided the case on the facts, and his findings on that branch of the case will not be disturbed. Neblett v. Neblett, 70 Miss. 572. Mrs. N. J. Ragan was a feme covert at the time of her death, seized and possessed of the land in controversy and her husband was the owner of an estate by curtesy during his life, and no right of action accrued to complainants until his death in 1883. This suit was brought before ten years had elapsed from his death. The owner of a reversion or remainder has no right of action for the possession of land until the termination of the particular estate. If Mrs. Ragan died seized and possessed of the land, her husband took an estate by curtesy. Code 1871, § 1786. Did N. P. Ragan take an estate by curtesy? If so his vendees had a right to the possession of it until his death. It was her separate real estate. Code 1857, art. 23; Code 1871, § 1778. She had perfect title to the fee, duly registered, and was seized. She had the right of entry and was possessed. 52 Miss. 546; 3 Wash. Real Prop., 121. Neither the deed of her husband nor the possession acquired under it could affect that title nor her right of entry. Code 1857, art. 38; Code 1857, art. 41; Code 1871, §§ 2323 and 2326; 24 Miss. 261; 26 Id., 579; 43 Id., 614; 54 Id., 50. She had not disposed of it, she had not devised it, and it had not been sold under execution. She was then seized and possessed. 50 Miss. 792. The words "seized and possessed, " as used in § 1786, code 1871, simply mean that the wife must have legal title and the right to actual possession. Seized is to have a legal and valid deed and it registered. 52 Miss. 540; Code of 1871, § 2284; 1 Wash. Real Prop., 181.

If Mrs. Ragan was seized of the fee, she owned an estate in possession and was seized and possessed, although a trespasser might have been living on the land and claiming it. Day v. Cochran, 24 Miss. 261; Rabb v. Griffin, 26 Miss. 579; Redus v. Hayden, 43 Miss. 633; 21 Am. & Eng. Enc. L., 1057; 3 Ohio St. 377; Stewart v. Ross, 50 Miss. 776; 1 Wash. Real Prop., 181. The fact that third parties claim the land by deed from the husband cannot change the rule as above stated, because it is expressly declared by § 2323, code of 1871, that no alienation by the husband "shall work any discontinuance" of the wife's estate and that she may enter, etc., after the death of her husband. Day v. Cochran, 24 Miss. 261; 1 Wash. Real Prop., 190.

Mere ability to sue does not impose an obligation to do so, hence where a married woman could have sued either with or without her husband after her marriage, she is not compelled to do so, nor will her failure to sue subject her to the plea of the statute of limitation. North v. James, 61 Miss. 761. It must, therefore, follow that Mrs. Ragan was seized and possessed at her death, and N. P. Ragan took an estate by curtesy. Code 1871, § 1786. N. J. Ragan was the true owner and her husband was a mere licensee. 5 Lawson's R. R. & P., 4355. His grantees took only a license. Their possession is subordinate to and not adverse to the true owner. 41 Miss. 521; Tyler on Ejectment, 879. A claim not barred by the statute of limitations is not a stale claim. 70 Miss. 87; 61 Miss. 329.

The third defense relied on is that of equitable estoppel. As to this, the mother said or did nothing in this direction, except to Clark--and that was after the purchase and payment--so, there is no estoppel. No improvements were put on the place until she and Ragan both were dead, and Clark had sold to Hill, who put the house on it. If there was any estoppel, it arose as to these complainants personally, and, if there is any as to them, it arose solely on the ground of silence, negligence, or long acquiescence in the use, occupation, and improvement of the property by defendants. Silence will estop only when it has induced such expenditures or act that one must suffer loss. 2 Pom. Eq. Juris., pp. 262, 264, 268; 47 Miss. 599. The one who acts on silence must be destitute of knowledge of the true state of the title, and all means of knowing. 2 Pom. Eq. Juris., pp. 264, 270. Knowledge of his right by the silent one is indispensable. 2 Pom. Eq. Juris., p. 273. Title to land which is of record will not be lost by silence. 2 Pom. Eq. Juris., p. 274. The misleading party in any case will simply be postponed till the misled party is made whole. In case of improvements, he will own or get pay for them. 2 Pom. Eq. Juris., §§ 807, 257, and note.

OPINION

WOODS, J.

The appellees exhibited their bill in the chancery court of Yalobusha county for cancellation, as a cloud upon their title to the land in question, of the...