Billingsley v. Niblett

1. Homestead. Purchase-money. Wife’s rights. A trust-deed on the homestead to secure the purchase-money thereof is valid although the grantor’s wife does not join therein. 2. Consideration. Compromise. Trust-deed. A note and trust-deed given- for a quitclaim deed conveying to parties in possession a title on which suit had been brought against them, cannot be defeated on the ground that the title is worthless, and if contested, could not have prevailed.

ERROR to the Chancery Court of Lee County. Hon. Laeayette Haughton, Chancellor. The defendants in error, the Nibletts and their wives, filed this bill to enjoin the sale of a quarter-section of land under a trust-deed thereon in favor of the plaintiff in error, on the ground that the land had for a long time been occupied by them as their homestead exemption, and the wives had not joined in the trust-deed. The Nibletts had been in possession of the land, under a bond for title, for many years, and the land during that time was sold at a tax sale, and bought by the plaintiff in error, who brought ejectment against the Nibletts, and they compromised the suit by purchasing the plaintiff’s title, he making to them a quitclaim deed, and they making to him the trust-deed. The Nibletts charge in their bill that they are ignorant men, and were deceived by Billingsley, who represented that he had a perfect title to the land, whereas in fact his tax-title is utterly void. They recognize Billingsley’s right to sell the title conveyed by the quitclaim deed, and also propose to do equity by repaying the taxes paid by Billingsley, but they contend that the title under the bond for title cannot be sold under the trust-deed, because of the non-joinder of their wives. Billingsley’s answer denies all misrepresentation and fraud, and states that he dismissed his suit in consideration of the compromise. The proof sustained the answer. On final hearing, the chancellor made the injunction perpetual, and ordered the Nibletts to pay Billingsley the sum paid out by him for the tax-title. 1. The Nibletts had no title to the land, but were trespassers, and their wives could set up no claim to homestead exemptions drawn from that source. 2. The wives have no homestead interest as against the purchase-money. Howell v. Bush, 54 Miss. 437. 3. While the bill charges that Billingsley deceived the Nib-letts as to his title, the proof does not sustain the charge. It was simply a compromise of the suit, which was dismissed in consideration thereof. 1. The appellees had a sufficient title to the land. Benson v. S'tewart, 1 Geo. 48 ; Huntington v. Colton,. 2 Geo. 253 ; Zegarclen v.. Carpenter, 7 Geo. 404: Nash v. Fletcher, 44 Miss. 609 ; Wilborn v. Anderson, 8 Geo. 1.55. 2. That title, such as it is, has never been conveyed, and is still in the Nibletts. Acts 1873, p. 78. By this statute the land became, in effect, the separate estate of the wives, and is secured to them by the decisions of our court on the homestead law. Code 1871, sect. - 2135 ; Johnson v. Richardson, 4 Geo. 463; Smith v. Fstelle, 5 Geo. 527. Any interest in land will be protected as the homestead, if it is, in fact, the homestead. Caldwell McGrath et al. v. A. G. Sinclair et al., 55 Miss. 89. 3. The only exception to the rule that an instrument such as the one under consideration is void, is where the deed of the vendor and the deed of trust of the vendee to the vendor for the purchase-money are made as parts of one transaction. There the deed of trust is said to attach before the homestead comes into existence. New Fngland Jewelry Co. v. Tarrant Merriam, 2 Allen, 390. In the case at bar, the homestead rights were in existence for years before Billingsley made his deed. He conveyed nothing, — did not give possession. He is not a grantor; he only released a supposed claim which he had, by making a quitclaim deed. He is not a vendor.