Wade v. Barlow

• Decision Date: 20 March 1911
• Docket Number: 15,031
• Court: Mississippi Supreme Court
• Parties: W. J. WADE AND D. J. WADE v. MRS. O. V. BARLOW

54 So. 662

99 Miss. 33

W. J. WADE AND D. J. WADE v. MRS. O. V. BARLOW

No. 15,031

Supreme Court of Mississippi

March 20, 1911

APPEAL from the circuit court of Jones county, HON. PAUL B. JOHNSON Judge.

Suit by O. V. Barlow against D. J. Wade et al. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Shannon & Street, for appellant.

Appellee is wholly without standing in court. She sues on the deed of 1909, but the proof shows there was no consideration for this deed. If she had sued on the deed of 1903, for which and when the consideration was paid, the suit would have shown on its face that it was barred. Could she on a suit based on the first deed have introduced in evidence the second deed as a new promise to pay? We do not think the proof sufficient to show that the title to the land was in the government, but if the title was in the government, the breach of warranty occurred at the time the first deed was made, and the consideration paid, to-wit: in 1903, and the statute of limitations began to run from the date of the first deed.

Counsel for appellee evidently realize fact, and based the suit upon the deed of 1909, for which the testimony shows no consideration was paid. In the last analysis, this suit resolves itself into this: The first deed was made and the money paid in 1903. If the land was government land, the six-year statute of limitations became operative at once, and six years would bar a recovery of the consideration. If the land was not government land appellee is not entitled to recover on a breach of warranty, because she does not show an eviction, so, on either hand of the case, appellee must lose.

J. T Taylor, for appellant.

In this case appellees acquired substantial rights by the conveyance from appellants. She acquired the use and ownership of the improvements on the land. More than this, she obtained that possession which was indispensable to her husband's entry of the land from the government as a homestead. These were valuable rights vested in appellants and which they could legally transfer and convey to their vendee.

The testimony shows that Henry H. Barlow, who is the husband of Mrs. O. V. Barlow, made homestead application for this land and received his receipt from the United States government on the 24th day of January, 1910, and therefore was living upon the land as a homesteader and that he has expended the sum of six dollars and nothing more in his efforts to secure title to said land.

One who finds that he has unwittingly attempted to purchase a tract of land, the title to which is in the United States government, need not wait on eviction, but may immediately abandon possession thereof and institute suit for the recovery of the purchase money paid. Hoolloway v Miller, 84 Miss. page 776. It shows from the evidence that appellee has never abandoned possession of the land but, on the other hand her husband has homesteaded the land and she, with him, is living upon it and taking advantage of their possession, which they acquired from appellants, and the improvements thereon.

Appellee is estopped by her conduct and that of her husband from claiming the entire purchase price. The amount of their damage is the sum of their rights. To allow them to recover more would be to work a fraud under the guise of law and should not be countenanced.

We would further submit that in view of the fact that Mrs. O. V. Barlow is the wife of Henry H. Barlow, they are one and the same person, so far as this transaction is concerned.

It is a well established general rule, that where a purchaser has been put in possession, he cannot afterwards acquire a title and set it up in opposition to the vendor; if he extinguishes an encumbrance, or buys in an outstanding title, all he can ask or require is the payment of the money he has so laid out. And this rule applies, whether the purchaser of the encumbrance be by the vendee or his wife; there is such an identity between them, that what under such circumstances cannot be done by the husband, cannot be done by the wife; to permit the husband to homestead the land and then undertake to claim that they are separate and distinct people would be a mere evasion of the rule.

Pack & Montgomery, for appellee.

Counsel for appellants, in their fairness, practically concede that the only question to be decided by this court is whether or not this suit is barred by the statute of limitations.

We submit that there was no completed contract of warranty between the parties until the execution of this deed. Evidently the first deed was wholly void, or so erroneous as to fail to conform to the warranty that appellants desired to make. The appellant Wade testified that the purpose of this new deed was to make good their deed to appellee. Having received the purchase price they acknowledged themselves bound to make good their warranty, and accordingly executed this new deed.

Can a party sell land, get the purchase money, make a void or erroneous deed, wait six years, discover the error, and then make a warranty deed, reciting the same consideration, and then defeat a suit on a breach of warranty because the money was not paid simultaneously with the execution of the deed? Illustrating the same principle, suppose that A should buy a piece of land from B for ten thousand dollars and should pay in cash four thousand dollars, and the balance in six annual installments under contract to make a warranty deed upon payment of the last installment, and that after more than six years from the payment of the four thousand dollars, but before the statute had run against the deed, the title should fail and B should institute suit against A for the breach of warranty, what would be his measure of recovery? Would it be the ten thousand dollars recited as the consideration in the deed? Would the four thousand dollars be barred? Under appellant's contention the first payment would be barred, but we contend that the foundation of the suit would be the warranty expressed in the deed, and that if all the money had been paid, all of it could be recovered.

Our contention is that this new deed is a new promise of warranty, based upon a former valid consideration, and that it is such a promise as is specially provided for under section 3115 of the Code of 1906.

Appellants might as well contend that a note given in renewal of one barred by limitation, cannot be collected because not founded on a valid consideration, but this section comes to the relief of just such a situation. Proctor v. Hart, 72 Miss. 288.

Proof was abundant to show that the land was public land at the time of the execution of the deed sued on. See section 1957, Code 1906; Hiwanee Lumber Co. v. McPhearson, 49 So. 741; Case v. Edgeworth, 5 So. 783; Lindsey v. Henderson, 27 Miss. 508.

Title being in the government is was not necessary for plaintiff to show an eviction. Pevy v. Jones, 71 Miss. 647.

The doctrine announced in Holloway v. Miller, 84 Miss 776, does not apply in this case for the reason that the grantee under the warranty did not homestead the land and her measure of recovery would not be limited by the rule laid down in the Holl...