Gentry v. Gamblin ( 1901 )

Calhoon, J.,

delivered the opinion of the court.

Gentry’s bill in chancery shows that on J une 7, 1885, Gamb-lin secured a debt he owed B. F. Quarles & Co. by trust deed conveying to J. A. Jones, trustee, the land involved in this suit. The debt not being paid at maturity, the land was sold and conveyed by a substituted trustee to B. F. Quarles & Co., the beneficiaries. Seeing that he had lost bis land, Gamblin applied to them to sell it back to him, and they verbally agreed to reconvey if he would pay his debt. Failing to get the money from others to whom he applied, he finally prevailed on R. L. Lee & Bro., a firm, to pay it if he would cause B. F. Quarles & Co. to convey to them, which he did, upon the oral agreement that he (Gamblin) should occupy the land and pay them the amount out of the crop, upon which payment Lee & Bro. were to reconvey to him, and if he failed to pay out of the first crop, he would surrender the land to them. This conveyance from Quarles & Go. to Lee & Bro. was procured altogether by Gamblin. Lee & Bro., acting altogether through sympathy, took no other part in this negotiation than to receive the instrument from him and pay Gamblin’s debt. The bill charges that this conveyance is dated the — day of February, 1898, but the transcript of it in the record as an exhibit shows the date to be February 11, 1888. The' bill proceeds to charge that Gamblin paid nothing out of the crop of 1888, and got another year from Lee & Bro. on a plea of poverty, and this process was continued annually until they conveyed to Gentry, the appellant, and complainant in the bill, by a conveyance, exhibited with the bill, without date, but acknowledged January 23, 1892. Gentry demanded possession, but Gamblin declined to give it up or pay the debt, claiming to be the owner because of some defect in the title from Quarles & Co. The prayer is to cancel any claim of Gamblin, as a cloud on complainant’s title, and for writ of possession, or for subrogation to the rights of Lee & Bro. to the amount they paid Quarles & Co., and general relief. This bill was filed May 9, 1898, and was demurred to by Gamblin on divers grounds, and bis demurrer was improperly sustained. By code, § 500, such a bill lies' where complainant has a perfect title, either legal or equitable. Here is shown certainly a perfect equitable title as against Gamblin. He is estopped to deny that title passed by an instrument he obtained from Quarles & Co. to Lee & Bro., and used as good to cause them to expend money for him. This would be to ask a court of conscience to sanctify an unconscionable fraud. The analysis of the whole understanding between him and Lee & Bro. is that they should take the title he furnished, and he might repurchase from them for the sum they paid for the land to Quarles & Co. It is monstrous if he may defeat them on the ground that he furnished them a defective title, by which he induced them to part with their money. There is no reason and no authority produced to sustain such a view. If he paid, would he be heard to demand a warranty title? Clearly not. Money v. Ricketts, 62 Miss., 209. Under the same circumstances he is equally estopped from setting up the statute of limitations of six years or three years. The land was their property, subject only to his right, by agreement, to repurchase it for a sum agreed on, and he held under them; and nothing under the statute of limitations can save him, short of ten years’ open and notorious adverse possession in repudiation of their claim.

The prayer for relief in the alternative — -that, if the court should hold the apparent conveyance in fee a mortgage to secure a debt, it should then decree a lien to secure the money— is entirely proper. Gamblin cannot in this case both hold the land and avoid the debt. We simply hold that he cannot both keep the land and avoid the debt. He must either yield possession or pay, if the facts maintain the bill.

There is nothing multifarious in the Mil, and the decree sustaining the demuo'rer is reversed, the demurrer sustained, and appellee required to answer within sixty days.