Chiles v. Gallagher , 67 Miss. 413 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

The complainant, alleging that she is sole heir-at-law of John C. Higgins, exhibited her bill' against the heirs-at-law of her grandfather, F. B. Higgins, and against the defendant Gallagher, who, it is charged, under the circumstances hereinafter named, secured by fraud a tax title to the lands described in the bill, and against Cameron, who has bought an undivided one-half interest in the land from Gallagher, and against Champenois and others, who are mortgagees under Gallagher and Cameron. The purposes of her bill are to establish the title of herself as heir-at-law of her father, as against the heirs-at-law of her grandfather, and to cancel as clouds upon her title the tax deed to Gallagher, the conveyance by him to Cameron, and the mortgages executed by Cameron and Gallagher.

Shortly stated, the facts upon which complainant relies are as follows: In the year 1859 her father purchased the land from one Gibbs, but being unable to pay the purchase-money, applied to his father, F. B. Higgins, to advance the amount. His father complied with this request, but required the conveyance to be made to himself, which was done. F. B. Higgins was accustomed to keep memoranda showing advancements made to his children respectively, and money lent to them, and, among other sums noted by him as due from John C. Higgins, was the money paid for the land in controversy. By his will, F. B. Higgins directed that in distribution of his estate each child should be charged with all advancements received, and with all debts due to him. He died in 1863, his son, John C. Higgins, having died in the year 1861.

In 1867 or 1868 the mother of complainant (widow of John C. Higgins) erected several small houses on the land in controversy, which she rented to various persons, collecting the rents and appropriating them to her own use, and paying the taxes upon the property. Several letters written by her to the widow of F. B. Higgins show that she recognized the land to be the property of his estate, and asked permission of his heirs-at-law to occupy the same. In the year 1875 she seems to have conceived the purpose of selling the land for the purpose of applying its proceeds to the education of her daughter, the complainant, who was then an infant of the age of fourteen years. She proposed to Gallagher to sell the land to him, and he agreed to buy it, and upon the faith of this agreement he assumed pecuniary obligations for the education of complainant, which he afterwards discharged. Examination of the records by him disclosed the fact of the title being in F. B. Higgins, and he declined to consummate the purchase, unless Mrs. Higgins would procure conveyances from the heirs-at-law. These she attempted to secure, but unsuccessfully. Gallagher then proposed that the land should be permitted to be sold for taxes, and that he should become the purchaser. This arrangement was carried into effect, and Gallagher paid out for tuition of complainant about the value of the land, as agreed on between himself and Mrs. Higgins. Soon after the sale for taxes (January, 1876) Gallagher entered into possession of the land, and so continued, claiming it as his own, until January, 1886, when he conveyed the undivided one-half interest to Cameron, since which time Gallagher and Cameron have been in possession. In January, 1886, and before the conveyance to Cameron, Gallagher and Cameron, who were partners in business, borrowed $3000 from Champenois, and to secure the same executed a mortgage upon the lands in controversy and other lands in which Cameron had an interest. All the lands were included in a single mortgage, Gallagher executing it to convey the lands in controversy, and Cameron to convey the other lands.

The facts above set forth are extracted from a voluminous record, which contains much other matter not necessary to be stated. These facts are not undisputed, but careful scrutiny of the evidence convinces us of their truth, and that they are not controlled or mateterially modified by other facts and circumstances.

'With the facts thus found, it is not difficult to apply clear and well-settled principles to the solution of the questions involved. The controversy separates itself into three inquiries :—

1. "What are complainant’s rights as against tlie heirs-at-law of F. B. Higgins?

2. What are they as against Gallagher, the purchaser at the tax sale ?

3. What are they as against the purchaser and mortgagee under Gallagher ?

1. The arrangement between John C. Higgins and his father, by which the father advanced the price of the land and took title to himself, is not an unusual one, especially between parent and child, and its effect was to make the father mortgagee of the land. The son was the purchaser of the land, but not the grantee of the legal title. He was the meritorious or moving cause of the conveyance, but being unable to pay the purchase price, secured it to be advanced by his father, at whose instance the conveyance was made to the father.

The father charged the amount so paid in an account he kept against his son, making no discrimination between this particular sum and others, which he had previously loaned to him, and by his will directed an account to be taken of the whole sums due in distribution of his estate. Under such circumstances, the right of the son as owner of the land, subject to the charge for the purchase price, is clear. Runnells v. Jackson, 1 How. 358 ; Evans v. Green, 23 Miss. 294; Robinson v. Leflore, 59 Ib. 148; Carr v. Carr, 52 N. Y. 251; Smith v. Cremer, 71 Ill. 185.

By his will F. B. Higgins directed the debt to be treated as an advancement, and this was sufficient as against the other heirs-at-law and devisees to release the debt due for the price of the land. It appears that the estate of F. B. Higgins is insolvent, but since no administration has been taken of his estate in this state, we are not called upon to consider what would be the right of the administrator of the estate proceeding to charge the land with the payment of the debt.

2. It is not necessary for the determination of the cause to pass upon the validity of the proceedings under which the sale for taxes was made. Whether they were valid or invalid, the defendant Gallagher cannot avail of the title thereby derived to defeat the right of complainant; and, whether they are valid or invalid, the complainant has not, as against Cameron and Champenois, shown any right to call them in question.

The widow of John C. Higgins was in possession of the land, receiving the rents and profits thereof, and therefore under obligation to keep down the taxes. This Gallagher knew, and though it does not appear that he knew the facts relative to the original purchase by John C. Higgins, and that F. B. Higgins held the legal title as security for the purchase-money paid by him, by reason of which the complainant as heir-at-law of her father was owner of the land, it is unquestionably true that default was made in payment of the taxes on the land to the end that by its sale for taxes he might secure the title which Mrs. Higgins had agreed to invest in him. Default in payment by the occupant and a tax sale as the consequence of such default was essential to the consummation of the scheme. If Mrs. Higgins had bought at this tax sale, she would have held the title as trustee ex maleficio for complainant, and Gallagher confederating with her stands in no better position than she would have sustained had she herself bought. Joor v. Williams, 38 Miss. 546; Brockett v. Richardson, 61 Ib. 766.

3. It becomes now necessary to consider another question, made pertinent by the connection of Cameron and Champenois with the property. Whether complainant is or is not the real owner of the land was wholly immaterial, so long as we were considering the right of the heirs-at-law of F. B. Higgins and of Gallagher to defend against her claims. F. B. Higgins received the title conveyed to him by Gibbs as trustee for John C. Higgins, complainant’s father. Whether it was a valid title was a matter of no concern to him, nor since his death to his heirs-at-law. It is not competent for them to controvert the validity of the title he received. Upon the same principle, Gallagher, the purchaser at' the tax sale, cannot call upon complainant to show herself to be the real owner of the land. He is infected with the same disability as was the widow with whom he combined to defeat by tax sale the title of the owner, and,.since she might not have denied the title of complainant, he may not do so.

But these disabilities spring from the relations of trust and confidence in which these parties, in the eye of a court of equity, stand towards complainant. Neither Cameron nor Champenois is shown to have had any knowledge of the existence of complainant’s right; nor have they done anything for the purpose of aiding the trustees, or either of them, in a breach of trust. They are purchasers for value without notice of complainant’s interest in the property. If they must yield to her title, it is because it is superior in law to that asserted by them. Counsel for complainant, appreciating this, strive to show the sale for taxes to Gallagher to be void for want of a valid assessment and sale of the land, wherefore no title passed to him, and consequently that none was conveyed by him to these parties. It may be conceded, for the purpose of this case, that the tax sale was invalid. It does not follow that these defendants must yield to the claim of complainant. Admitting they have no title, they may yet challenge her right to call them to' account, unless she is the owner of the land.

There is no more serious or prevalent error than that which seems to exist in relation to the right of parties to exhibit bills to cancel clouds upon titles. It is frequently assumed that if a complainant can show some antecedent claim, however vague and unsubstantial, he may assail and dispel anything which is a cloud upon the real title. ~We cannot conceive what has given rise to this erroneous view, for it is settled by an unbroken current of decisions, that to enable a complainant to cancel the defendant’s title as a cloud, he himself must show as perfect a title, legal or equitable, as would enable him, the title being a legal one, to recover against the defendant in an action of ejectment.

Tested by this rule, the complainant has failed to establish such title as entitles her to relief against these defendants.

As against the heirs of F. B. Higgins and Gallagher, she prevails, not because she shows title, but because they do not occupy a position to deny her title. As to the other defendants, against whom she must show a sufficient title, and recover on. it, her showing is wholly insufficient.

By her bill she avers that her father bought the land from Gibbs, and entered into possession and so continued until his death. There is no allegation that Gibbs had title, nor even that he was in possession of the land he sold and conveyed. Assuming, as we must do, that she has stated her case as strongly as the facts would warrant, we find nothing but color of title claimed as derived from Gibbs. The averment that her father entered into possession under this deed and died in possession would have been sufficient, if proved, to show a prima facie right of recovery. Unfortunately for her, this allegation is denied by the answer, and is not only not proved, but is disproved by the evidence. It is clearly shown that her father never entered upon the land, and therefore that he was never in possession, unless being the true owner (which is not shown) his title drew to him its constructive possession. The only possession in fact that is ever shown to have existed was long after the death of her father, when her mother took possession, either as widow of John C. Higgins, or in recognition of the adverse title asserted by the heirs of F. B. Higgins, deceased. Viewing the evidence most favorably for complainant, it is more than probable she held in the latter right.

Under such circumstances, it has never been held that the title of a defendant, entering under conveyance from one in possession, who himself claimed under color of title, could be called in question.

The decree is affirmed in so far as it dismisses the hill as against the defendamts other than Gallagher and the heirs of F. B. ITiggins ; os to them, it is reversed, and cause remanded.