Longmire v. Mars

• Decision Date: 17 January 1921
• Docket Number: 21403
• Citation: 124 Miss. 77,86 So. 753
• Court: Mississippi Supreme Court
• Parties: LONGMIRE v. MARS ET AL

86 So. 753

124 Miss. 77

LONGMIRE v. MARS ET AL

No. 21403

Supreme Court of Mississippi

January 17, 1921

1. QUIETING TITLE. Complainant must set forth deraignment of title or reason for not doing so.

Under sections 550 and 551, Code of 1906 (sections 307 and 308 Hemingway's Code), the complainant must set forth in his bill the deraignment of his title, unless good and valid reason be given why he does not do so.

2. QUIETING TITLE. Defendant's title must be set forth as known to pleader.

Under these sections, if the object of the bill is to cancel a particular evidence of title possessed by the defendant and known to the complainant, this title should be fully set forth.

3. QUIETING TITLE. When bill affirmatively shows good title in defendant from common source, and no title in complainant demurrer should be sustained.

Where a bill to remove clouds from title deraigns both the title of complainant and defendant from a common source, and affirmatively shows a good title in defendant, and no title in complainant, a demurrer to the bill should be sustained.

4 DEEDS. Voluntary conveyance not void for lack of consideration in absence of fraud.

In the absence of fraud a voluntary conveyance of land cannot be vacated at the instance of the grantor or his subsequent vendee with notice thereof, upon the ground that it was made without any consideration.

HON. T P. GUYTON, Chancellor.

APPEAL from chancery court of Neshoba county, HON. T. P. GUYTON, Chancellor.

Suit by W. H. Mars and others against W. C. Longmire. Decree for plaintiffs on overruling of defendant's demurrer, and defendant appeals. Reversed and remanded.

Decree reversed, demurrer sustained, and cause remanded.

Byrd & Byrd, for appellant.

At the very outset of consideration of this cause we are presented with the question as to whether or not a deed, good on its face, can be set aside and cancelled for a failure to pay the purchase money or for failure of consideration. This court has repeatedly held that this cannot be done. In all respects the deed front the Pooles to Longmire is a good and valid deed and for a recited valuable consideration. There can be no question that the Pooles had a right to convey this land to Longmire even after the trust deed had been executed for the reason that they still retained an equity in the property and surely they cannot be said to be prohibited from conveying this equity to whomsoever they pleased regardless of the trust deed. It is true that the trust deed, or rather the lien of the trust deed followed the land but the fact that the trust deed was a lien on the land does not bar them from conveying the equity. In 2 Jones on Mortgages, (7 Ed.), page 1, et seq., we find the following:

"Against all other persons he (the mortgagor) has the same rights respecting the mortgaged premises that he ever had. He may, so far as his interest goes, deal with it in every respect as the owner. He may devise it, sell it, or lease it, or make any contracts in respect to it."

The United States supreme court, speaking of the rights of a mortgagor to sell his equity in land says: "But one construction can be placed upon this stipulation. It gave to Jewell authority to sell and transfer title discharged of the lien of the mortgage. It did not empower him to sell subject to the mortgage, that is, to transfer simply his equity of redemption, for that he had without the stipulation. . . ." Woodward v. Jewell, 35 L.Ed. (U.S.) 478.

We might continue to cite authority after authority holding this same view but the matter is so clear we deem it useless to burden the court further.

Wilson & Dees, for appellee.

We listened with very much interest to the oral argument of learned counsel for appellant and as we understood his argument, he insists upon one proposition, namely that a deed for the purchase money of land good, on its face, cannot be cancelled by the chancery court. As in his brief, counsel in his oral argument, relies on the Dixon case to sustain his contention. As before stated we do not think that this case has application here for the reason that the facts here are entirely different and the consideration also different. We have cited in our original brief authorities holding the contrary view, and in addition we desire to present the rule as laid down by two of our most modern and accurate authorities. The first of these, volume 4 Ruling Case Law, page 497, paragraph 10, it is said: "Cloud on Title. Whenever a deed or other instrument exists, not void on its face, which may be vexatiously or injuriously used against a party having the rightful possession of real estate, throwing a cloud or suspicion over his title or interest, and he has not at law a plain and adequate remedy for relief against it, the constant practice of a court of equity is to intervene and remove the cloud or suspicion when the suspicion is reasonable by directing that the instrument be delivered up and cancelled. " Citing under note 12 next to last word: Sunset Telephone & Telegraph Co. v. William, 162 F. 201, 89 C. C. A., 281, 22 L. R. A. (N. S.) 374 Wilson v. Miller, 143 Ala. 264, 39 So. 178, 111 A. S. R. 42 and notes, 3 Ann. Cases, 724; Polk v. Rose, 25 Md. 153, 89 Am. Dec. 773, and note; Sneathen v. Sneathen, 104 Mo. 201, 16 S.W. 497, 24 A. S. R. 326, and notes.

The next of these authorities is volume 8 Corpus Juris., pages 1189-1190, where it is said: "That instruments create a cloud on title, a, The General Rule. "Equity has jurisdiction to cancel, when the instrument is a deed or other document concerning real estate, which, although inoperative if suffered to remain uncancelled, would throw a cloud on plaintiffs title to the lands which are embraced or to which it refers. This is a part of the well-known and firmly-settled jurisdiction of equity, and remedy at law being considered inadequate. And the relief of cancellation may be granted even if a technical forfeiture of the estate which constitutes the encumbrance follows, where it appears that all the rights under it have been lost by the wilful and prolonged neglect of the party who otherwise might have preserved and enforced by his title. By analogy to the decisions which permit the cancellation of instruments which constitute a cloud on the title to real estate, it have been held that equity has jurisdiction to grant relief against an instrument, other than one relating to real estate, which until its validity is determined, may harass one's business and impair his credit.

In addition to these authorities in which the rule is so clearly stated that a court of equity has full authority to cancel the Longmire deed, we call the court's attention to another Mississippi case, namely McPherson v. Davis et al., 48 So. 625, 95 Miss. 215, the court will observe that where the bill of complaint is for general relief, as is the case at bar, the bill should be maintained, and this clearly entitles complainant to the relief sought.

OPINION

SYKES, J.

The appellees, W. H. Mars, J. A. Poole, and M. N. Poole, brought suit in the chancery court against the appellant defendant in the lower court, praying for the cancellation of a deed executed by the Pooles to Longmire alleging this deed to be a cloud upon the title of Mars. The bill specifically sets out the title of the appellant and appellees as follows: That the two Pooles, husband and wife were the owners of the land specifically described, and on the 22d day of April, 1912, executed to the complainant Mars a deed of trust in which this land was conveyed to a trustee to secure an indebtedness of one thousand thirty-three dollars and thirty-two cents payable October 1, 1912; that on the 29th day of November, 1912, they (the Pooles) executed to the defendant, Longmire, a deed of conveyance to this land, without the knowledge or consent of the complainant Mars, and at a time when the indebtedness due Mars secured by the deed of trust was unpaid; that the deed to Longmire was duly recorded in the office of the chancery clerk; that the consideration recited in the deed to Longmire is fifteen hundred dollars, but that, in fact, there was no consideration paid by Longmire to the Pooles, and that the real consideration for the execution of the deed was that Longmire was...