Wade v. Thompson

Simrall, C. J.,

delivered the opinion of the court.

An action of ejectment was brought by Mrs. M. I. Wade, to recover from the tenant in possession a lot of ground in the town of Fayette. Henry Hyman, as landlord, was admitted to defend, and pleaded the general issue.

The bill of exceptions, considered in connection with other parts of the record, does not, perhaps, present the case as fully as it was developed on the trial.

On the-day of-, 1861, Henry Lindsey executed a deed of trust, embracing the lot and some personal property, to A. J. Cameron, trustee, to secure John H. Duncan and Isaac Burch, sureties on three bonds or sealed notes, payable to Robert Duncan, administrator of S. B. Owens, deceased, and also the notes themselves. On the 26th of August, 1872, *371 the trustee sold and conveyed the property to Mrs. Wade, the plaintiff.

H. C. Lindsey, in execution of the decree of the chancery court of Adams county, on the 24th of May, 1871, executed a deed for the same property to B. Hyman, the defendant. The deed recites that Lindsey was required by the decree to make the conveyance in accordance with a contract theretofore entered into bétween the parties — that is, himself and Hyman. Hyman also read in evidence a deed executed to himself (after suit brought) by John Jennings Owens, who was the only heir of one S. B. Owens. • - .

The petition of Henry Duncan for letters of administration on the estate of S. B. Owens, deceased, was also read in evidence.

A motion for a new trial was overruled. The jury was waived, and the case was tried on the law and facts by the court.

In the action of ejectment, if both parties trace title to the same source, it is not necessary for the plaintiff to go further, and prove that it is good against all the world. Both litigants tracing their rights to a common origin, the inquiry is limited to the ascertainment of which has the elder and better title.

At the time suit was brought Hyman was in possession by his tenant, Thompson. This possession may be legitimately referred to the executory contract with Lindsey, consummated into a legal title by the decree of the chancery court, and Lindsey’s deed executed in pursuance of it in 1871.

Having entered under Lindsey’s title, and being protected by his covenants, he could not procure from another source an adverse and better title, and set it up in opposition to that under which he got possession, and to the prejudice of his vendor. Griffin v. Sheffield, 38 Miss., 390, 391 .

When both parties derive title from the same person it is not competent for either, as a general rule, to dispute that title. That principle, when it applies, is an exception to the general rule that the plaintiff must prove a complete title in *372 himself. Ordinarily, the defendant may rest on his possession merely, or he may show an outstanding title in a stranger. In either case he will succeed, unless the plaintiff has shown such right of possession as is good against all the world. This rule has no application where both parties trace title to a common source. In that case the defendant canuot protect his posséssion by setting up a paramount title in another person, with which he has no connection.

Here both parties derain title from Lindsey — Mrs. Wade through the trust deed and purchase at the trust sale, Hyman by direct contract with Lindsey, and his conveyance in obedience to the chancery decree. In this aspect of the case the inquiry is, upon whom was Lindsey’s title devolved ? On that question the parties are antagonized, and there is no-priority of title between them in such sense that Hyman would be estopped or precluded from obtaining whatever support he might from another and independent title. It was competent for Hyman to take a deed from John J. Owens, the heir at law of S. B. Owens, deceased. But, in order that it may avail him in his defense, he must show that S. B. Owens had a complete legal title, paramount to that received by him from Lindsey.

The rule is, if the defendant did not derive his possession from the plaintiff, but claims adversely to her, he may buy in an outstanding title to defend his possession. Tucker’s - v. Keeler, 4 Vt., 161 ; 8 Johns., 139 . But such title will not suffice unless the defendant shows that it was subsisting and available, on which a recovery could be had in ejectment. Jackson ex dem. Demindoch v. Hudson, 3 Johns., 375 ; Jackson ex dem. Dunbar v. Todd, 6 Johns., 257 ; Greenlief’s Lessee v. Birch, 6 Pet., 302 ; Foster v. Joice, 3 Wash., 498 . The deed from John J. had no greater effect than to transfer' to the defendant such right as descended to him from his ancestor. What that right was, its quality and value, was the subject of proof. The only testimony conducing to show title in S. B. Owens came from the witness Torry, who deposed that S. *373 B. Owens died in 1860, claiming to own the property, and in possession. In the absence of written muniments of title, mere possession with a claim of ownership does not suffice to establish a title, unless such possession had^begun under color of right, -and had continued long enough under the statute of limitations to consummate a. title. The record is barren of evidence as to when the possession of S. B. Owens began, how long it continued, and under what claim it initiated. All that we know of it is that Owens died seized and possessed in 1860.

We may conjecture that Lindsey bought the property at a sale by his administrator, for 'among the grounds of the motion for a new trial is the allegation of error in excluding the deed of the administrator to Lindsey, when offered in evidence. But the bill of exceptions omits to show that such evidence was offered and excluded. That ruling of the circuit court is assigned in this court for error, but we cannot notice it, as it is not certified to us by bill of exceptions.

The plaintiff, Mrs. Wade, being a purchaser under the deed in trust to Cameron, executed in 1861, can refer her title back to the date of that incumbrance, so that her right takes rank and precedence from that time. All we know with certainty about Hyman’s title is, that in 1871 Lindsey was under an obligation to convey the legal title to him, and did actually convejr in 1872.

It was thus shown in evidence that Mrs. Wade’s acquisition of Lindsey’s title was prior in time to any right derived from the same source, and that she ought to recover unless one or both of the propositions made by the defendants has been sustained, viz. :

1. That the deed from John J. Owens, the heir of S. B. Owens, vested in him a perfect and paramount title. That, for the reasons already given, was not established in evidence.

2. Unless, as objected by the defendants, the sale and conveyance by Cameron, the trustee, did not pass the title, because certain irregularities occurred in giving notice of the sale.

*374 It was in evidence that tbe trustee had observed all the requirements of the deed in that particular, when his proceedings were arrested by injunction at the suit of Hyman. After the injunction had been dissolved the property was again advertised and sold to the plaintiff. Among other things it was made the duty of the trustee to give ten days’ notice to Lindsey. This was not done. Nor was it made certain that notice was'posted on the court hoiise door. It was proved that the trustee moved in the matter at the written request of one of the sureties on the bonds, and that the sum bid at the sale, less the expenses, was credited on one of them held by Mrs. Wade’s attorney for her.

It is true, as held in Walker v. Brunguid, 13 S. & M., 763 ,. that the power of the trustee to sell is conditional, and that he must pursue the directions prescribed. If he act. unfairly, or goes contrary to the powers conferred, the grantor or other parties interested may aiuest his steps or set the sale aside.

But can Hyman, the defendant, complain of irregularities of the character evolved by the testimony? In Wightman v. Doe ex dem. Reynolds, 24 Miss., 681 , it was held that only the parties to the trust deed, or some person interested therein, and injured by an omission to give the notice, or irregularities in that or other particulars, could object to the sale. “As to third persons, the sale will be regarded as valid.” In Walker v. Brunguid, suppose the controversy was between parties interested in the trust, and was begun before the sale was consummated by the conveyance; the general observations of the court must be construed with reference to that state of case.

The conclusion from these views is that there is error in the judgment of the circuit court.

It is reversed and cause remanded.