Duncan v. Robertson , 57 Miss. 820 ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

Mr. Duncan filed his bill, to enjoin the sale of a tract of land under an execution emanating from a judgment against his wife in favor of Robertson, the defendant. He alleged that the land belonged to him, and not to his wife, and that the judgment against the wife was void, but that a sale and conveyance of the land under it would cast a cloud upon his title. The proof developed the fact that his own title was void. The land originally belonged to the wife, and the husband derived title through an execution sale, based upon a judgment recovered against the wife by one Sykes. In the suit which culminated in this judgment, Mrs. Duncan, though shown by the pleadings to be a married woman, was proceeded against in all respects as if a feme sole, or person sui juris. There were no allegations of the ownership by her of separate property, or of the exceptional circumstances which make the contracts of a feme covert binding upon her separate estate. The judgment was by nil dicit. Under the well-settled doctrines of this court, a sale under such a judgment does not pass the title of the property of a married woman. Griffin v. Ragan, 52 Miss. 78; Magruder v. Buck, 56 Miss. 314.

The -complainant therefore is shown to have no title; and, as he who invokes the aid of a court of chancery to remove or to prevent the creation of a cloud upon title must show a perfect legal or equitable title in himself, the complainant’s bill was properly dismissed. As there was some doubt as to the validity of the judgment against the wife held by Robertson, a sale under which was by this bill sought to be enjoined, the Chancellor dismissed the complainant’s bill without prejudice to the legal rights of either party, leaving them to test hereafter in a court of law the strength of their respective titles if a sale shall be had under Robertson’s judgment. We approve and affirm this decree. So ordered.