Robinson v. Lewis , 68 Miss. 69 ( 1890 )

Cooper, J.,

delivered the opinion of the court.

The decree of the court below must be reversed because of the incapacity of the complainant to purchase at a sale for taxes the interest of the co-tenant of his wife in the land. One co-tenant may not thus defeat the title of another to the common estate. Harrison v. Harrison, 56 Miss. 174; Fox v. Coon, 64 Miss. 465 ; 1 South. Rep. 629. The spouse of the co-tenant is equally disqualified. Freem. Co-Ten. § 160; Fee v. Fox, 6 Dana, 172 ; Burns v. Byrne, 45 Iowa, 285; Rothwett v. Dewees, 2 Black, 613 ; Busch v. Huston, 75 Ill. 343. In Cameron v. Lewis, 59 Miss. 134, and Carter v. Bustamente, Id. 559, this court repudiated what had been said in Hardeman v. Cowan, 10 Smedes & M. 486, and Taylor v. Eckford, 11 Ib. 21, to the effect that the wife was in privity of estate with the husband, and that a purchase by her of a paramount title inured by operation of law to the benefit of a prior grantee of the husband. But it was distinctly said in Cameron v. Lewis, that an estoppel in pais, operative against the husband, would be applied against the wife. In Carter v. Bustamente, the land had been struck off to the state, and, after the title had become absolute by the lapse of the period of redemption, a purchase was made by the wife of the former owner.- In an action of ejectment, (involving of course only the legal title), brought against the wife by one who claimed as purchaser under an incumbrance by the husband, we held that the title conveyed by the state to the wife did not inure by operation of law to the plaintiff in ejectment, and therefore that he had no legal title to the land, and, because he did not, could not recover in ejectment. If the rule which prevents one spouse from securing a title where the other is disqualified rested only upon a supposed privity of estate between them, it might well be ai’gued that our statutes upon the subject have destroyed its foundation. But the rule is founded upon considerations of public policy, and conclusively imputes to the one, as derived from the other, knowledge of those facts the existence of which precludes the other from action. The opportunities that would be afforded for fraudulent practices would be so numerous, and the difficulty of exposing them so great, that courts apply the doctrine of estoppel to both, and thus close the door that offers the temptation.

The decree is reversed.