The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-02-17

SUPREME COURT DECISIONS.
Reported for The Clarion by I. Brsme, Attor-
ney-at-Law, Jackson, Miss.
OCTOBER TERM, 1880.
AIosE MCCARTNEY, J

No'' N9 e. No. 1851.
TPPAH COUNTY.
Appeal from the Chancery Court of Tip
pah County, Hon. \. B. Fly, Chancellor.
In 1860 one Holcombe borrowed portion
of the school fund of TiPpah county, and e1-
ecuted a trust deed on certain lands to Sc
cure payment Of the same. In 1867 the
trust deed was foreclosed, when McCarley
purchased 81 acres ofthe land at the price of
$500. The trust deed required the sale to
be made for cash. Instead of paying the
money McCarev executed his note and =
trust deed on the land he bought TO secure
the 5000 and interest. He went into pos
session.
On the 1lth Of July 1872, under an ar.
rangement with the School Directors, the
note aud trust deed of McCarley were given
up and cancelled, and he executed another
note and a trust deed on the same land for
$3.50, $3.50 of which was the debt of another
party assumed by him. The interest on his
former note was RENTED. Both the note
and trust deed purported to be under seal,
but there was no seal or scroll to either.
On the 18th of January 1879, few days
more than six years after the note fell due,
the Board of Supervisors, as successors OF
the Board of School Directors, advertised
the land for sale under the trust deed. Nc
Carley enjoined the sale urging; l. That
the trust deed was void for uncertainty in
the description of the property, which was
as follows: "51 acres Of the $ Et Section 10,
Township 4, Range East" ,. That the
debt was barred by the statute of limita.
tons 1t was also claimed that the sale
under the trust deed in 1867, at which Nc
Carley purchased, should have been for cash
and that there was no authority for lending
the money.
The injunction was dissolved and the bill
dismissed. Complainant appealed.
The opinion of the Supreme Court is
given in full
CAMPBELL, J.
The position of appellant, as holding the
land described in this bill, by virtue of his
purchase as described, is such as to prelude
him from assailing the title he acquired,
either for want of authority in those with
whom he dealt or because of insufhciency in
the description of the land.
In reference to the accidental failure to
afhx scroll to the name subscribed to the
note, We are disposed to follow the cases Of
Wddslrorth e. Wendell, 5John, Oh. r. pa,
Company e. Lathrop, Conn. $50 and Rt1t
land 4. Paige "a Vt. ISl. In the first case
cited Chancellor Kent, said: "The omission
to afhx a seal was mere mistake, contrary
to the intention of the parties, for the in
strument concluded with these words
"ln witness whereof | have here unto set
my hand and seal" He regarded thest
words as evidence of intention to make the
Instrument sealed one, and treated it as
such. The note of appellant shows it wa:
intended to 5e a sealed instrument, and 8
court of equity will not allow him to claim
and obtain benefit arising trom the aees
dent of a failure, through mere inadvertence
to do what the words written show was In
tended TO be done, and which, lift had beer
done, would have precluded the possibility
OF the assertion of right now set up by thu
appellant
Decree affirmed.
-Falkner & friedrich, for appellant.
Thomas Spight, contra.
TO be reported