Stevens v. Durrett , 49 Miss. 411 ( 1873 )

Tarbeli,,-J.,

delivered the opinion of- the court:

Ttfectment by J. D. Durrett, D. W. Durrett and J. W. Durrett, against James M. Stevens, for the recovery of a quantity of land described in the declaration. The right of the plaintiffs is stated to have accrued January 1,1867, and they claim $400.00 for use and occupation from said date to the commencement of the suit. There was the usual plea of “ not guilty,” and a further plea that the defendant was a bona fide purchaser of the land sued for, together with a claim for valuable improvements, to the amount of $415.00.

It was stipulated on the trial that Z. W. Durrett, father of plaintiffs, died siezed and possessed of the lands described in the declaration; that the plaintiffs are the heirs at law of said Z. W. Durrett, and that there are five other heirs, not made parties to this suit. Here the plaintiffs rested their cause, when the defendant offered to read in evidence a transcript of the proceedings of the probate court in the matter of the estate of Z. W. Durrett, deceased, and of the guardianship of his minor heirs, to prove a sale of the land sued for by the administrator oí Z. W. Durrett, deceased, under an order of the probate court, and that the guardian .of the plaintiff, J. D. Durrett, received his' share of the money for which the land sold, and applied to his use, and settled with him for if after he became of age.. To the introduction of this testimony the plaintiffs objected, because, defendant could not make such defense at law, and because the proceedings of the probate court for 'the sale of said lands were void. The objection was sustained, and the defendant excepted. A verdict having passed for the plaintiffs, there was a motion for a new trial, on the following’grounds:

1. Because the court erred in rejecting the evidence offered by the defendant.

2. Because the jury found contrary to law and the evidence.

This motion being overruled, the defendant prosecuted a writ of error. The case, with the errors assigned, presents the single question, whether the evidence offered by the defendant, and rejected by the court, constituted a defense at law. An inspection of the proceedings of the probate court on the estate of the ancestor of the plaintiffs in the action, discloses, the fact that the administrator sold the real estate involved without any order of the court, and without service of citation upon the heirs to show cause why an order of sale should not be made, though with the consent of the guardians.of some of the heirs. Under these circumstances, the administrator was a stranger to the real estate, without even color of right of occupation, or of interference for any purpose, and as to a sale, without the pretext or shadow of authority. He was literally a stranger, and with only a stranger’s right as to the realty.

Conceding the evidence offered by the defendant to be established, would the facts constitute an estoppel? Is such a defense cognizable in a court of law ? Has the defendant such an interest in the land as a court of law can make effectual for any purpose.? These are some of the questions to which the case gives rise.

. It is not necessary, and it would be improper to decide Whether the evidence offered, if undisputed, would constitute an estoppel, either at law or in equity. Neither is it. hecessary or proper to determine, what interest the defendant in the action has in the land in controversy. Counsel urge that the facts constitute an estoppel, which can be entertained in a court of law: The answer is, that, upon the facts as now presented, .the, rights of the purchaser of the land involved, whatever they may be, are equitable only, and being an equity, can be enforced only in the courts of equity. Even if there had been a sale under a decree of the probate court, which decree was, for some cause, void, the heirs could not be denied their right of recovery upon their legal title, saye by the restraining power of a court of equity. Whether, in the latter court, the purchaser (defendant) lias only a lien on the land for the money advanced by him ; whether the facts, when fully developed, will authorize a court.hf: equity to enjoin the further prosecution of the suit at law, and hold the heirs estopped from asserting their right to recover the land, even subject to a lien for the money paid by Stevens on his purchase; or, indeed, whether he has any rights, in law or equity, either to the land itself, under the doctrine of estoppels, or to a reimbursement of his money, it is not intended to decide at this time. But only this, that the rights of Stevens, whatever they are, if he has any, are equitable, and his remedy is consequently in equity. This, upon the case made in the record, is understood to be the general doctrine, and is the declared rule in this State.

An act of the legislature, approved February 11,1873, with reference to lands sold pursuant to void or voidable orders of courts of probate, is in these words: “ That in the sales of real estate, heretofore made, under a decree of any probate or chancery court of this State, for the payment of debts or for distribution among their heirs, legatees or distributees of any intestate or testator, when the purchase money arising from such sale, has been in good faith, paid by the purchaser to the administrator, executor or commissioner, and has been applied in good faith to the payment of debts or distributed among the heirs, legatees or distributees, and such sales are afterwards shown to be void or voidable for any cause, the heirs, legatees or distributees, having the legal right to recover the same by an action of ejectment, or otherwise, shall hold said real estate subject to the payment of said purchase money to said purchaser, or any party holding under him by purchase, descent, or otherwise.”

The sale in the case at bar having been made without any order or decree, this act is quoted more for information, than for its bearing upon this particular case, if indeed it has any, in view of the facts.

Judgment affirmed.