Vicksburg weekly herald. (Vicksburg, Miss.) 1868-1883, 1877-07-06

opinion OIL Inc supreme CouFt OF MIS-
sissippi, by Campbell, j., in the case Of
Jefferson Davis vs.. Executors Of Joseph
Z. Davis, deceased.
Aside from the iniere., felt in the
case OIL sccoun Of the complainant, it
involves ssme very interesting ques-
lions.
The case was very severely litigaied
in the Cbancery Court for this county
and II the Supreme Court, and was
deliberately discussed in printed argu-
ments and orally at the bar by the
respective counsel of the parties.
Mr.. Jefferson Davis was represented
by Messrs. Pittman & Pit,man, Of this
city, and the defendants by Messrs.
Harris & George, OF Jackson, and
Hon. T. A. Marshall, Of this place.
JEFFERSON DAVIS,
We.
j. II, d, BOWMAN, Exr. ct all
The actual possession OF the land called
.BrleIfeldn by appellant commenced In
1885 or 1886, ard continued uninterTnpt.
edly 20 1883. The open and notorious and
exclusive exercise OF the cOmDletest acts
Of ownership, and control OF which the
land could be the subject, and in q manner
Inconsistent with the right Of any other
person, with the knowledge OF Joseph T..
Davis, who repeatedly ard by the most
unequiVOcal acts recognized the owner
ship Of said land by appellant, warrants
the declaration that there was vested In
appellant a full and complete title by vlr.
tue of the act entitled, IAN Act to amend
the several Acts Of limitations" approved
February 94th, 1874, Hutch. Code, p. S29.
Although Joseph L. Davis sold "Hurri.
cane and Brierfeld" 10 Montgomery, and
took security for the purchase money pay
able TO himself, he distinctly recognized
and declared appellants right 10 "Brier.
field" and subsequently RENTED to him
toe interest accruing OF that part Of the
purchase money representing "Brier.
held"
1t would be difficult ever 70 establish ii.
tie to land by occupancy under claim OF
ownership, II the facts OF this case are not
held 10 do It.
Ford vs.. Wilson, IS Miss, 400.
Alexander VS.. Polk, 80 Miss, 1876
Gladney ct al VS.. Barton ct AL, 81 Miss,
2i6.
Tyler on eJectment ard Adj. Pos, page
sC4.
The precise circumstances Under which
appellants possession OF the land con.
menced are O6scured by the lapse Of forty
years, and the light Of cOntem poraneous
facts are dimmed by the great distance OF
time from which we are called on % view
them. But IL 10 certain that appellant took
/ nnEEaEElAN tHT1aR nm EsRF 80 wl.fhV Il,
himself. Of a wilderness, irlled the forest,
cleared the jungle, erected fences and
build ngs, made the place his home, cult.
waited II, protected II by levees,
mad II assessed as mis- own, paid
taxes on II, anu enjoyed eYclu.
siYe possession and control OF il as his
own, from 1896 to lsG3, and in the uncer.
taiLty, II any, from the imperfect knowl.
edge we nave as to exactly how the pos
session began. appellant is entitled to the
benefit OF the Just presumption that he was
holding as owner from having acted so
long and from the beginning as owners do,
ana so Inconsistency with the idea OF title
In any other than himself. II the evidence
negativCd the idea that appellant first took
possession In any other character than
that OF owner, the case would be different.
Prior 10 the RAJ dcation by appellant OF
the sale by Jose IA T.. Davis to MOntgom.
cry he was invt,ed with a full and com.
plete title to "Bricricld." and after his
assent to that sale he had a valid claim
against Joseph h. Davis for that part Of
the obligation given by Montgomery rep.
resenting the purchase money Of "Brier-
Held"
Was appellant precluAed from asserting
mis- claim by tae mere fact that he quail
lied as one Utthc Executors Of the will OF
Joseph L. Davis, assuming mat the will
di>puses Of all the Obligations Of Mont
glmeTyE
Atcommon law an Executor could retain
tue assets coming into his hands for his
,ebt, aud because ne could do this he lost
us claim II he mad the opportunity 70 re.
an and did not. By our law IN kXecu.
tor is not allowed TO retain for mis- claim
but must probate ii and stand on the same
footing as other creditors.
II Joseph 4. Davis had received the pqr.
chase money for "Brierheld,' and died
holding 1t, he would have been debtor IN
appellant for money had and received, and
appellant would have been entitled 70 pro.
bate his claim against the estate.
But Joseph Il. Davis mad not collected
the purchase money, and az his death
held the obligation he had taken for II.
II Is established law that q Trustee con.
not avail OF his position 10 acquire title to
the trust property adversely TO his c6stui
quetruSL and cannot, by virtue OF his DO.
siti0n, obtain an advantage for himself
over his ceStui que trust, and cannot make
profit for himself out Of the tIust estate,
and that his possession is that Of the ben.
eiciary and Tor his advantage and benefit,
and that a Trustee having Ostained posses.
sion Of trust property, by virtue OF his
trust character, shall not retain that nos.
session against the claim Of the b%enefciarv
when properly called on 10 surrender 1t;
but no case In England orAmerica has been
found TO hold that a Trustee mas not az.
peal TO the Chaneery Court to which be
Is subject as a Trustee, to adjudge his
rights as an individual to an interest In
the trust property, not acquired since be
became Trustee, nor In hostility to the
cestui me trust, but had before his accent.
ance OF the trust.
Perry on Trusts, l33, has the following,
VIZ; "Under no circumstance can 1
Trustee claim, or set up a claim, to the
trust property adverse to the cestui Qut
trust, nor a he deny bic title. II a Trus,
tee desires to set up a title TO the trust
property in himself, he should refuse Ia
accept the trust" All OF the cases cited
in support of this language aces.
sible TO us, have been carefully
examined, and they do not sustain
the expression Of the text In its full ex,
tent. stone vs.. Godfrey, ) DeGex. N. a
g., 10, decides that one may be estopped
by his conduct from maintaining a suit
and possession obtained in the character
Of Trustee cannOt be retained as one ad,