Huntington v. Allen

SiMRA.Lt, J. i

H. Henley, on the 28th of March, 1838, recovered judgment in the circuit court of Attala county against Nash for *661 ■over two thousand dollars. Execution on this judgment Avas, the same year, returned by the sheriff of Attala, nulla Iona; subsequently, fieri facias, at the suit of the officers of court, for costs taxed, Avas issued to the county of Lowndes, and returned “no property found.” An alias fieri facias for costs was directed to the sheriff of Leake, Avho, in Ju ly or Aug., 1841, levied upon the lands in controversy, and, on the 20th of the following September, sold them to Robert Huntington for $13 75; the tracts consisting of several parcels, being subdivisions of sections, and contained over 1,000 acres. They were purchased by Hash from the United States, on the 18th of April, 1836; Avho, on the-day of June of the same year, assigned Ms certificate of entry or purchase to Charles ■Gasgoigne.

Ho entry was made on the tractbook, or other registration in the local land office at Columbus, of the assignment. But on the-- day of August, 1843, a paper Avas made up at the general land office at Washington city», of all the assignments of certificates issued'at the Columbus office, and forwarded by the commissioner to the registrar, with instructions to note on the tractbook assignments as made. It appeared on this paper that Charles Gasgiogne was assignee.

Huntington, on the 20th of December, 1852, sold a parcel of the land to Presley, who sold to Jones. On the 29th of September, 1856, Huntington sold another parcel to Jones, The 10th of January, 1858, a parcel Ayas sold to Stephens, and another to Jones.

To the February term, 1860, of the circuit court of Leake oounty, Johnson M. Hooper and Christopher O. Allen, brought actions of ejectment against the tenants in possession of the several tracts, Avho derived title either mediately or immediately from Huntington.

Huntington and the defendants to the several ejectment suits, brought their bill'in chancery, enjoining the suits at law. The plaintiffs in the ejectments, on the application of Huntington, filed an abstract and copies of their documentary title, which Avas derived from Gasgoigne. The bill makes *662 exhibits of the several ejectment suits, and sets forth the title under which the plaintiffs claim, making exhibits of the several documentary evidences thereof. The actions at law were at issue, and ready for trial. The prayer of the bill is for a perpetual injunction of the ejectment suits, and that the muniments of title of the plaintiffs therein may be cancelled or set aside, as casting a cloud on the title of the complainants, or some of them.

The statute in reference to the removal of clouds from title, enlarges the principle upon which courts of equity were accustomed to administer relief. It is very broad, allowing the real owner in all cases, to apply for the cancellation of a deed or other evidence of title, which casts a cloud or suspicion on his title. It is an ancient and well established rule, both in courts of law and equity, that a party must recover on the strength of his own title, and not on the weakness of that of his adversary. Watts v. Lindsay, 7 Wheat. 242 . The principle is very aptly stated in Banks v. Evans, 10 S. & M., 62 : “He who comes into equity to get rid of a legal title, Which is alleged to overshadow his own title, must show clearly the validity of his own title, and the invalidity of his opponent’s.” Nor will equity set aside the legal title on a doubtful state of case. In farther exposition of the same principle, it was declared in Boyd v. Thornton, 13 S. & M., 344 : “ The complainant must be prepared to sustain the entire fairness of his own title.” The jurisdiction takes its rise in the doctrines of quid timet, in order to give repose and peace to the party in possession, by virtue of a rightful claim or title against him who might vex and harrass with suits after the right had been fairly tested in a court of law, or against a deed or other evidence of title, which had been fraudulently obtained, and which might be set up after the evidence which could manifest its true character had become obscure, or had passed away. The terms used in the statute, expressive of the scope of the jurisdiction, viz.: “ cloud,” “doubt,” “ suspicion,” quite distinctly imply that the instrument which creates them, is apparant rather than *663 “ real; ” is “ semblance ” rather than substance ; obscures rather than destroys or defeats.

It is scarcely to be supposed that the enlarged rule of the statute was meant to confer upon the chancery court the right to adjudicate upon the relative’ value and merits of conflicting titles under all circumstances. That would be in effect, to draw into that court, from the courts of law, and the jury, the trial of ejectments. Nor do we .suppose that it is, in all circumstances, in the election of either party to an ejectment pending for trial, to appeal to the chancellor for an injunction, and transfer the litigation to his court. If either party relies upon a'perfect and complete equity which ought to draw to it, or control the legal title; or if either party depends upon a deed or other muniment which has been obtained by fraud, then the chancellor might assume cognizance over the controversy. Without attempting to state all the circumstances and conditions (which it would be imprudent to attempt), which would justify the injunction, it will suffice to say, that if the parties are already in a court of law, and can fairly present their respective titles in that court, which are of such character as will there be recognized, and no special reason is presented for equitable interference, the lattei^ court might well leave the case to the law tribunal. " *

If these tenants in possession could as availably use their title in defense of the ejectments as in this chancery suit for injunction and cancellation, then it is not perceived that the forum of the litigation should be changed. If, however, they had a superior equity, which ought to draw to it the title of the plaintiffs in the ejectment, or which would make it un-conscientious for such plaintiffs to set up against the equity, then a proper case for relief exists. Boyd v. Thornton, 13 S. & M., 344 .

Certainly the complainants ought to show a complete equitable title, or a perfect legal title, that they are in the words of the statute, the “real owner” in one right or the other. What is this title ? Nash entered the lands in April, *664 1836. He assigned in June of the same year his certificate to Gascoigne, to whom the patent was isssued, 27th February, 1841. The title of Gascoigne is either outstanding in his heirs or devisees, or it has passed to his assignees. If the several defendants to those suits have been in the adverse possession of the several premises a sufficient length of time to take away the right of entry, and bar a recovery, that fact also would at law defeat the recovery. So it may be answered, as to the other objection taken in the bill to the title, viz.: that because there was no evidence in the land office at Columbus of the assignment of the certificate of his entry and purchase, by Hash to Gascoigne, at the date of the recovery of the judgment, and of the levy and sale of the lands, as the property of Hash, that therefore, the assignment was void as to the judgment, and the lands were still liable to this judgment. If that be so, a legal title under our statutes passed to Huntington, purchaser at the sheriffs sale; such title as would support an ejectment, or successfully defend the possession-A certificate of purchase from the United States is made by the statute evidence of a legal title. The act of 22d June, 1822, Hutch., Code, 859, makes the certificate evidence of legal title, either in behalf of the original purchaser from the United States or of his assignee, the latter taking a title of the same nature and co-extensive in merits with that of the assignor. Lindsay v. Henderson, 27 Miss., 507 . Although not as conclusive as a patent, it is sufficient to stand upon in a court of law. If, therefore, the title of Hash did not pass to Gascoigne in the circumstances stated, as against the judgment, but was subject to sale under it, then the sale (if not for other reason obnoxious) was sufficient to pass title to Huntington, and would be ample to protect the tenants on the trial of the ejectments. It does not appear essential for the security of the complainants, or any of them, on either of these grounds taken in their bill, for chancery interposition, admitting the grounds to be well taken in point of law.

*665 The doctrine is founded in manifest reason and propriety, that complainant in such a suit must prefer a perfect title, legal or equitable. If he fails to satisfy the court that he is the real owner, he establishes no claim to relief, however many flaws, defects, and infirmities he may point out in the title of his adversary. It is only at the suit of the true owner that the clouds and doubts that fall upon his title from pretended adversary claims will be removed.

We are not aware of any act of congress requiring a record of the assignment of certificates of purchase to be kept in the local land office. There i§ manifold convenience that some such registry should be kept, and the regulations require it to be done. Nor are we aware of any legislation which attaches any consequence whatever if the registrar of the local office omits to. note on the tract book an assignment, or which requires any registration in his office. The assignment is made on the original certificate, and is attested so as to furnish evidence to the general land office, to whom to issue the patent.

Nor do our registration laws embrace either the certificate or patent. The doctrine of notice does not then apply to this case. Gascoigne acquired a complete equitable title under the laws of the United States in 1836, long before the recovery of the judgment againt Nash. That equitable title was recognized by the government which confirmed the land to him by patent in 1844.

Martin v. Nash, 31 Miss., 329 , presented essentially the same questions made here. It was a controversy between the assignee and a purchaser at sheriff’s sale under judgment against the original enterer and purchaser. • There was no record or evidence in the local land office of the assignment, nor was the certificate and assignmentrecorded in the county where the lands were situated. Because of these facts it was urged for the purchaser at sheriff’s sale that the title of the assignee was a secret, undisclosed equity which did not affect the purchaser from the sheriff, who paid his money in ignorance of it. The court pronounced in favor of the assignee, *666 because under the act of 1822, already referred to, tbe assignee took a legal title; and because the registry laws had no application to such muniments of title. It was said that recording the certificate and assignment in the probate clerk’s o'fiice would not have been notice to subsequent purchasers. Such also is Talker v. Jones, 12 Ala., under a statute similar to ours.

■4th. Can the complainant’s title stand another test?

The judgment did not create a lien on the lands until an actual levy and sale (on the hypothesis that they were liable to sale under the execution). The judgment was recovered in Attala county, the lands were in Leake county. By the act of 16th February, 1841, ail judgments are required to be enrolled, and took effect from its passage, as to all after-rendered judgments. As to those recovered before its passage, it went into effect July 1st, 1841. Unless enrolled in the county where the debtor’s property was situated, there was no lien. It is not shown by the bill that this judgment was enrolled in the county of Leake. There is no lien disclosed then, upon these lands, except such as was incepted by the levy, and consummated by the sale. The levy was made in August, and the sale in September, 1861; but before the lien attached the legal title «was fully vested in Gascoigne by the issuance and recording of his patent. In this aspect of the title of Huntington, his purchase at the sheriff’s sale conferred no estate, either legal or equitable. But the title of complainants must be “ free from suspicion,”’ as declared in the authorities quoted. Can this be predicated of Huntington’s claim with confidence? For the trifling sum of $13 15, about 1,000 acres of land, subdivided in fractions of sections, were sold in the aggregate. The levy on the face of it was grossly excessive if the titles were good. Hash had paid the government $1 25 per acre in 1836. A single quarter section ought to have been ample to satisfy the costs. There does not seem to have been any regard to the interests of the debtor. Instead of attempting to realize, out of a single fraction, or two fractions, all were exposed at once, and *667 bought in for a “pepper com.” We do not say that these circumstances invalidated the title, but do they not cast a strong shade of suspicion upon it? To the degree as to make a court of equity slow and reluctant to intervene in its behalf, and incline it to leave the party to make the best Use of it he can in a court of law. In Byers v. Surget, 19., How. S. C. Rep., 311, remarking upon the sale of a large body of land for a very small sum on an execution like this, it may be remarked» for costs, the court said: “It is insisted that inadequacy of consideration singly cannot amount to proof of fraud. This position is hardly reconcilable with the qualification annexed to it by the courts, namely, unless such inadequacy he so gross as to shock the conscience.” Remarking upon a sale of land, for less than half its least value, in Ingraham v. Regan, 23 Miss. Rep., it was characterized by the court as a circumstance, though not very conclusive, from which it may be inferred that the bidders at the sale were not ignorant of the fact that the title was not perfect.

But again, it is averred in the bill that the title of the tenants has been perfected by the statute of limitations. If that be true, their defense to the ejectments is complete and unembarrassed. Certainly, the purchasers from Huntington went into possession under color of title claiming to bold adversely to Gasgoigne. If Huntington held in such wise as in law would amount to an adverse possession, those coming in, in privity of title and'estate under him, would be entitled to the benefit of his possession, to be tacked on to theirs.

We fully recognize the doctrine, that title may he acquired, by adverse possession, held long enough to perfect it. If continuous, open and notorious, under claim of right, until all remedy, by lapse of time, is cut off from him who has the perfect paper title, then the right of possession has matured into a good legal title. To determine questions of this character is especially the province of a court and jury, and when that question is already pending in a court of law, we do not think that it would be proper *668 for a court of equity to withdraw it. Indeed, it is a common and approved practice, in suits of this character, to send down to the jury an issue of fact, such as whether the deed or other instrument complained of as a cloud was obtained by fraud.

5th. As to the adverse possession. If the defendants have been in possession of the several premises, adversely to the plaintiffs in the ejectment suits, so as to bar the right of entry, that matter is especially a proper subject for a jury trial; and no reason is set forth in the bill that-obstructs or hinders it, as a defense to those actions.

The proper title of these parties originated in 1841, by the levy upon, and sale and conveyance of the lands to Huntington. If Huntington and his alienees have been in the open, notorious occupancy of the lands a period of time long enough to toll the right of entry, and bar a recovery, having entered under color and claim of title, then they would have perfected title, by the entry, under color of title, and occupancy. The judgment and sheriff’s deed would be of no value, as conveying a valid legal title, but would be competent to be referred to, as conferring a color and claim of right. Bledsoe v. Little, 4 How., 25 . The facts stated in the bill, in support of the adversary possession, is the payment of taxes on the lands, commencing shortly after the sale to Huntington, occasional visits to the premises, and the actual occupancy by the several vendees of Huntington, from the date of their respective purchases, and the improvement by the erection of houses, clearing in part, and cultivation. It was held by Mr. Justice McLean, Ewing v. Burnet, 1 McLean, 267 , “ that suing for trespass, or paying taxes, and speaking publicly of the claim, are not sufficient to constitute an adverse possession.” There must be an actual'entry, so as to give all interested and the public, notice of the claim of property, and such use of the loous in quo as it was susceptible of. The same case subsequently came before the supreme court of the United States, and is reported in 11 Peters, 52 . In that court it was held that, *669 ■while the erection of houses, enclosure, or cultivation might not be necessary, there must be visible and. notorions acts of ownership, for the proper length of time, with a proper color-of title. These acts must appropriate the property to such uses as it may be applied to, as cultivation, mining for metal or coal. We have already stated that the assignment of the certificate to Gascoigne vested in him the legal title, which was consummated by the patent; for that is conclusive, until set aside, that all preceding steps had been rightfully taken. This assignment gave to Gascoigne, under our statute, a legal seisin and possession of the lands embraced in the certificate, co-estensive with his right, although he was never in the actual .occupancy. This possession and seisin continued until interrupted by an actual ouster, and an adverse possession thereof. 4 How., 16 (cited supra). These lands remained in a wild state, unused for any practical purpose, until the occupancy under the several vendees of Huntington begun; prior to that time there had been no act of ownership by Huntington, except the payment of taxes, and an occasional visit to them. This was not an appropriation of them to some use for which they were fit, open and notorious, so as to create an eviction. We are, therefore, of opinion, that the statute of limitations commenced to run from the date of the actual entry and occupancy by Huntington’s purchasers.

We concur with the chancellor in sustaining the demurrer to the bill, and affirm the decree.