Fitzgerald v. Allen , 126 Miss. 678 ( 1921 )

W. H. Cook, J.,

delivered the opinion of the court.

F. H. Fitzgerald, L. C. Franklin, attorney, and May-' nard & Fitzgerald, a law firm composed of George F. Maynard and Gerald Fitzgerald, exhibited their bill of complaint in the chancery court of the Second district of Coahoma county against Henry Thomas Allen and his wife, Jane Stuart Allen, defendants, and from a decree dismissing the bill, the complainants prosecuted this appeal.

The bill of complaint charged that many years ago B. L. A. Cammack died testate in Coahoma county, Miss., seized and possessed of about one hundred and sixty-five-acres of land; that, under the terms of the will of the said B. L. A. Cammack, this land was devised to John S. Cam-mack for his use and benefit for and during his life, with remainder to the surviving child or children of the said John S. Cammack if he should die leaving issue, but, if he should die without issue, then the property was to be equally divided between the living children of the testator’s brother, B. S. Cammack; that immediately after the death of B. L. A. Cammack the said John S. Cammack, together with his wife, Lula Faye Cammack entered into possession of this land and occupied it until December 18, 1908, when the said John S. Cammack and wife conveyed the land by deed to appellees, that Lula Faye Cam-mack joined her husband in the conveyance to appellees in conformity with the statute which requires a wife to join with her husband in the conveyance of the homestead, but that she joined under protest and under compulsion of her husband; that Lula Faye Cammack had no interest in the property other than the veto right of the wife in a conveyance of the homestead; that John S. Cammacjc had only a life estate in said land, the remainder being vested in his children; that on January 9, 1919, John S. Cammack died, leaving surviving him his wife, Lula Faye Cammack, and an only child, Leonard Cammack; that six days later Leonard Cammack died intestate leaving surviving him as his sole heir at law his mother, the said Lula Faye Cammack; that on January 26, 1919, Lula Faye Cammack died intestate leaving as her sole heir at law her father, F. H. Fitzgerald, and her mother Mrs. F. H. Fitzgerald; that shortly thereafter Mrs. F. H. Fitzgerald died intestate leaving as her sole heir at law her said husband, the complainant, F. II. Fitzgerald; that by reason of the claim of appellees to the land under and by virtue of the deed dated December 18,1908, executed by the said John S. Cammack and Lula Faye Cammack, and which purported to convey the fee in said tract of land, the said F. H. Fitzgerald and-wife were forced to employ attorneys to1 bring such proceedings as would he necessary to put them in possession of the land and- remove the cloud from the title thereof; that on Jan-nary 29, 1919, for such purposes, they employed the complainants Maynard & Fitzgerald and L. C. Franklin, attorneys, and in consideration of the services rendered and to be rendered by them in the matter, the said F. H. Fitzgerald and wife executed to these attorneys a deed conveying to them an undivided one-half interest in the said lands. The bill prayed that the deed of conveyance from John S. Cammaek and wife to appellees be set aside and declared void as against the complainants as a cloud on their title to said lands, and that an accounting be had of the rents and profits of said land since the death of John S. Cam-mack. The answer of the respondents was in effect a, general denial of the allegations of the bill.

Upon the trial of the cause oral and documentary evidence was introduced, and in much of the testimony offered by the parties there is no conflict. It appears from this testimony that, after John S. Cammaek and wife entered into possession of the land in controversy, they executed a deed of trust on the land in favor of the Colonial & United States Mortgage Company, Limited, to secure the sum of fifteen hundred dollars, the deed of trust being dated July 22, 1902, and the indebtedness due January 1, 1907; that the note secured by this deed of trust was executed jointly by the grantors, and that the deed of trust contained covenants of warranty of title on behalf of the grantors; that thereafter, on January 10,1907, the said John S. Cammaek and wife executed a second deed of trust, covering the same property, for the benefit of one W. S. Campbell, to secure the payment of an indebtedness of two thousand seven hundred and fifty-eight dollars, due November 1, 1907, and that this second deed of trust likewise contained general covenants of warranty of title, and the note secured thereby was signed by both grantors; that, the indebtedness to the said W. S. Campbell not being paid at maturity, the deed of trust securing this indebtedness was foreclosed, "and the said W. S. Campbell became the purchaser thereof at the foreclosure sale; that thereafter, in December, 1908 the said John S. Cammaek entered into negotiations with appellees to become the purchasers of the land; that a conference was had with W. S. Campbell, and, in order to complete the transaction, the said Campbell agreed to re-convey the property to John S. Cammack and wife upon the payment to him by appellees of the full amount of the indebtedness originally due him by the Cammacks; that appellees demanded that the wife, Lula Faye Cammack, join in the deed, and that on the 18th day of December, 1908,-the said John S. Cammack and wife executed their general warranty deed conveying said lands to appellees for a consideration of ten thousand seven hundred and eighty-two dollars; that as a part of such consideration appellees paid to W. S. Campbell the amount of the original indebtedness to him, and also paid the indebtedness due by the Cammacks to the Colonial & United States Mortgage Company, as well as some other smaller items of indebtedness against the property, the balance of the consideration being paid in cash to John S. Cammack; that on December 19, 190S, the said W. S. Campbell reconveyed the said land to John S. Cammack and wife, Lula Faye Cammack. There was much testimony offered by both parties upon the question of whether the land in controversy was in fact the homestead of the Cammacks at the time of the sale to appellees, and the testimony on this point is in sharp conflict. The testimony as to the alleged coercion of the wife is.also conflicting, and the decree of the chancellor expressly found the facts in favor of defendants. A. finding that the land in controversy was not the homestead of the vendors at the time of the sale, and that the wife was not coerced into signing the deed, is amply supported by the testimony.

The sole question persented for decision is whether, under the facts in evidence, the title acquired by Lula Faye Cammack by inheritance from her son, Leonard, passed to her vendees by virtue of her express warranty. That an outstanding paramount title acquired by a warrantor cannot be used to defeat the title of the warrantee, but will inure to tli,e benefit of the warrantee, is established by á long line of cases in this state, and, as said in Saw Mill Co. v. Douglas, 107 Miss. 678, 65 So. 885, this is- a familiar principle of law, and needs no citation of authorities. Do the facts in evidence here remove this case from the application of this familiar principle? We think not.'

Since the enactment of our statute abolishing the disabilities of coverture (section 2517, Code of 1906; section 2051, Hemingway’s Code) it is, of course, conceded that a married woman is as free to contract and is bound like and to the same extent as a man would be under the same circumstances, and etiher the husband or the wife may convey his or her land, except the homestead, without the joinder of the other. Under the finding of the chancellor that the land in controversy here was not the homestead of the vendors at the time of the sale thereof, there was no sort of necessity for the wife to join the husband in the conveyance of this land for conformity, and since, upon the demand of the proposed purchaser that she should do so, and in order to effect a sale and recover something out of land which had already been lost to them by reason of a trustee’s sale thereof, she did join in a warranty deed purporting to convey the fee, she and her heirs are now estopped to assert an after-acquired title against her warrantees. Kaiser v. Earhart, 64 Miss. 492, 1 So. 635; Leflore County v. Allen, 80 Miss. 298, 31 So. 815.

In Leflore County v. Allen, Supra, Allen and his wife both deeded certain; lands to the county to repay a shortage of Allen as county treasurer. Allen joined with his wife in the conveyance of her separate property, and after the death of Mrs. Allen her children brought an action against the county to recover the lands, and, so far as the interest of the children was concerned, Mrs. Allen’s deed was set aside on the ground that it had been signed under duress, but it was held that, by reason of Mr. Allen’s joinder in the wife’s deed, he was estopped to assert the one-sixth interest when he inherited from his wife, and that the county acquired a good title to the interest which Allen inherited from his wife. Judge Calhoon, speaking for the court, said:

• i‘When Mrs. Allen died' her husband, J. K. Allen, with her five children, each became the owner of a one-sixth interest in her lands. As soon as it thus inured to him, as the chancellor correctly held, he and his heirs were es-topped, because of his deed to the county, from claiming this one-sixth interest from the county. There was no sort of necessity for him to join his wife in her deed for conformity. Under the law, then, either might convey his or her land, not being homestead, without the joinder of the other. But he did join, and used the word ‘convey.’ ”

It is said by counsel for appellants that, while it is true that the courts of those states in which the disabilities of married women have been completely removed have generally held that a married woman is estopped by joinder in the husband’s deed, these cases all proceed upon the assumption that the woman had an interest in the property or, received the benefit, or misled and induced some one to rely on her covenants in her deed to their injury. Measured by this test, appellant’s case must fail. If it be conceded that Mrs. Cammack received no part of the six thousand dollars paid to her husband and received no benefit therefrom, yet it clearly appears from the evidence that she was jointly liable with her husband on certain promissory notes for large sums, and that, as a part of the consideration for the sale of this land, the purchaser paid these notes and thus discharged her personal liability thereon, and to that extent Mrs. Cammack received the benefit of the sale.

It follows from the views herein expressed that the decree of the court below must be affirmed.

Affirmed.