The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1882-01-18
SUPREME Court DECISIONS.
OCTOBER TERM, 1857
REPORTED WEEKLY FOR THE CLARION, By
RoBT. sHoTwELL, ATToRNEY-AT-LAw.
J. c. cAHfRox ct Al


.
V.
C. E. LEWIS EFT Al.
Appeal from the Chancery Court Of Madison
county, Hon. E. g. Peyton, Chancellor.
In January, 1861, Nicholson executed to
Powell trust deed on tract OF Iaad OF 9s3
acres, upon which he. at the time, resided, to
secure said Powell IN q loan of 81, 600. The
land, except SO much of ii as was exempt :
a homestead-l60 acres-was already eucum-
bered by two judgments older IN date and
prior in lien 10 the trast deed The elder OF
these was in favor of b. 5. Kicks, Tor he sum
of 5000 The junior was TOR few hundred
doliars in fayor ct Thompson Nicholson
sued out a writ of error from tire Ricks iudg-
ment, and, while the same was pending IN this
Court a sale took place under the Thompson
iid gment, at which the whole tract was bid of
to Mrs. Nicholson, the vie of the execution
debtor. Nicholson made the bid for his wife.
paid the money to the Sheriff and directed
the deed to be made to her. The Kicks jddg-
ment having been affirmed, the attorney who
controlled il believing the purchase by Mrs.
Nicholson to be fraudulent, levied again
on the land, aud, at the sale bought it IN for
his client Thereafter, by a compromise be-
tween Nicholson and Kicks attorney, Kicks
made deed to Mrs. Nicholson OF 333 acres,
including the homestead Of 100 acres, and re
ceived a deed fer he remaining 600 acres. 1t
is the title to the 333 acres retained By airs.
Nicholson that is Involved in this suit. Mrs.
1873, though, in the meantime, Pow
ell by sale IN pals had foreclosed
his trust dee and received from the trustee
deed in fee to the entire 933 acres. Upon the
death of his wife Nicholson became seized as
tenant by the eurtesy of the la1d held by her
and Powell, al once brought ejectment against
him and recovered possession by virtue of the
title acquired unfer the trust deed. This re-
covery occurring in 1874 did not affect the
validity of Mrs. Nicholsons title, since con
eeding it to be good, Powell, as Nlcholsons
grantee. was entitled 10 subject the interest
which the latter had inherited as
tenant by the eurtesy from the wife.
Powell and his subsequent grantees,
who are his children aud the present com
plainants have he continuous possession
since this recovery in ejeeiment and are now
in possession. Nicholson is now dead and
with his death terminated the estate by the
eurtesv The children of Mrs. Nicholson were
preparing to assert their right to the land "a
heirs of their mother, when this bill was filed
by the parties IN possess Ion. enlolnlng them
from so doing, and praying for a cancellation
of the deeds held by her on the ground that
they had been procured in fraud of her hus-
bands creditors and especially OF Powell
right under the trust deed The allegations of
the bill are that Nicholson bough the land with
his own money. and had the title vested IN
her, without any action or knowledge on her
part with the express purpose Of defeating
The trust deed held by Powell. All these allie
cations were denied 10 the answer. Ii was at
tempted 70 sus ain these charges by proof OF
admissions made by Nicholson shortly alter
the execution sale ut which his wife acquired
her title The defendants pleaded the statute
of limitations of ten years. The Chancellor
below decreed for compliments responding 10
The PRAYER of their bill from which decree this
appeal is prosecuted,
Shelton {. Shelton and Robt. Shotwell for
appellants.
Nugent Me lille and II. u smith LOT APP
pelees.
CHALMERS. e. j.,
Held
Nicholson are admissible. 1t coull only e
so on the theory that Mich bison and not the
Sheriff was to be regarded as the real grhntor
in the deed to the wife aud then only as to adj
missions made while he was in possession
the lands explanatory of his possession, or
when so contemporaneous with the convey
ance as to constitute the part of the res gestae,
or upon proof of conspiracy between nus
band and wife. None of these things were
shown and hence he testimony was lnadmls-
sible but while there is failure or direct
proof of the fraud we think that the decree OF
the Chancellor holding the wifes title fraudu-
lent, should be affirmed, because of the alb
sence of any proof of its bona fdes on the parI
Of defendants.
2. 1t was held in HardemaH .. COVan ~ s. and
NJ. sol. and in TAYLOR .. Ecktord II 10. Il that
covenants OF warranty, the same prlneiple OF
law which makes any acquisition of an adj
verse title by him enure 10 the heneft OF
his grantee was applicable also to his wife, so
that wherever the husband Is estopped by his
deed from the acquisition of an outstanding
title or membranes the wife is also. The
doctrine has not been announced save In these
two cases either in this State or elsewhere, so
far as we have been able to discover, nor do
we think it n sound legal principle.
Il hat IN "a cos q p q
is precluded from purchasing by some matter
in pals which makes it fraudulent IN him to
do so, the law viii impute knowledge of the
facts to the wife aud estop her also, 50 as to
prevent An evasion OF moral duty on his part
| nv the easy device of purchase by the wife.
This rests upon the idea that the law viii pre-
sumo the wife to have knowledge of the facts
through the husband, since owing to the mari
tai relation, it is impossible TO make proof OF
such knowledge. Cameron as LeWis % Miss
! 601.
4. But estoppel hy record extends only TO
parties aud priYies and We know of no in
stance in which the deed ofthe husband is held
| to bind the wife Il is indeed much m0cted
| question, whether a married woman is estop-
| ped BIS her own deed frem acquiring title ad
! verse to that conveyed by her, and the decided
| weight of authority elsewhere is, that she is
not How then can she be estopped by the
deed of the husband with which she had no
! connection?
! s. But while we are of opinion that while
there is no absolute legal preclusiOn of her
right to buy, SUCH purchase must always be
regarded as in the highest degree suspicious
and very slight circumstances will be seized
! upon TO throw on her the burden of showing
the bond tides of her title. The facility for and
frequency of frauds by pretended purhases
by the wife, effected by the husband means,
and the difficulty of detecting and exposing
them, make the necessity OF this rule lmpera-
! tive.
s. In the case in hand the wife was
entirely unknown to all parties con-
cerned, except paper. The husband
made the purchase, and paid the money
and directed the deed to be made to his
wife. 1t was with him that the arrangement
was perfected with Kicks attorney, by which
she gave up two-thirds of the land and &C
ouired another deed to the other third involved
in this litigation The bin alleges that she
was entirely WITHOUT property and the only
witness examined sustains the allegation.
These facts, in connection with the relation OF
the parties, threw upon those who were volun-
teers under her, the burden of establishing
nv testimony dehors the reeitais of the deed
: that the land was purchased with her money
and not his. and warranted the conclusion Of
the Chancellor that her title was fraudulent
T. 1t is insisted that ir asmueh as more than
ten years has elapsed since the title of Mrs
Nicholson was acquired il CANNOT now
assaled. But during greater part Of thai
time, compliments have been aud are IN pos
session of the land and while they might hay,
filed their, bill at any time qatia ti0'st, they
we're not bound to do so until advised that the
adverse title was about to be asserted agains
them. He who is out of possession can derive
no advantage from the flow of time, and he VIII
is in possession can never be damaged by it
Decree 4BSrzssa.
Campbell j., having been formerly of coun
sci in matters connected with this case, take
. no part in this decision.
: G. w. REYNOLDS,
v.
BOARD OF SUPERVISORS OF ALcoRN COUNTY. ]