Ezelle v. Parker , 41 Miss. 520 ( 1867 )

Harris, J.,

delivered the opinion of the court.

The defendants in error filed this bill to remove clouds and doubts from their title to certain lands in dispute; also, for an account for the use and occupation of the land by plaintiff in error, and for general relief. The bill alleges that Mary J. Parker, being the wife of the said Elijah Parker, and the owner in fee of the land in controversy, in the absence of her husband in the army, about the 3d day of January, 1865, contracted to sell the same to plaintiff in error by title bond, for Confederate money, of little value, and afterwards by the persuasion of plaintiff in error executed her deeds therefor to said plaintiff in error. That the deeds are void, not b aving been executed j ointly with her said husband, and that they constitute a cloud upon her title.

The answer of plaintiff in error admits these facts, except her paramount title; alleges that the husband ratified" the sale by his wife; prays that the answer be made a cross-bill and for process and answer thereto, and for a correction of any defect in the conveyance to him and a specific performance of the contract of sale, and that defendant in error be decreed to execute a good and valid deed for said land. Or, in the event that such decree cannot be made, that the purchase-money with interest be decreed to be refunded to him.

To this cross-bill there was a demurrer which was sustained, and no appeal is prosecuted from this decree.

The cause was finally submitted on bill, answer and proofs, and a decree entered in favor of complainants below, cancelling said deeds from the said Mary J. Parker to plaintiff in error; directing the delivery of the possession of said land by the said plaintiff in error to the defendants in error, within sixty days from the date of said decree; on failure, that a writ of possession therefor issue ; also referring it to the clerk of said court to take and state an account of the rents and profits of said land, and report the same' to said court. And to take an account of the specie value of Confederate notes at the dates of payments thereof made by said plaintiff in error to said Mary J. Parker, and report the same to said court, &c., reserving all other matters until the coming in of said accounts and reports.

From this decree an appeal was prayed in open court, which was allowed, and bond and sureties approved by the court, and the cause brought to this court.

A motion is now made to dismiss the cause on the ground that the bond is insufficient. That it was not approved by the clerk, and that the necessary steps to give this court jurisdiction have not been taken.

We perceive no irregularity in this appeal, and none is suggested by counsel for the motion, upon which it can be sustained. The motion will therefore be overruled.

The cause is also submitted on the merits upon argument and briefs of counsel.

The first and third errors assigned are not before us. The first relates to the demurrer to the cross-bill, from the decision of which no appeal was prosecuted; and the third relates to a motion to remand the cause to the rules for further testimony. No such motion appears in the record. There is a bill of exceptions, in which it is recited that such a motion was made; but even if the motion had been copied into the bill of exceptions, we have repeatedly held that matters pertaining to the record must be copied into the record and certified as such by the clerk, and cannot be presented here by bill of exceptions; the office of a bill of exceptions being simply to spread on the record such extraneous matters as could not otherwise appear of record.

The only remaining assignment of error is, that the court-erred in granting the decree before us.

To the extent contemplated by our statute, R. Code, p. 541, art. 8, under the decisions of this court, a court of chancery has the undoubted right to have deeds or other evidence of title, constituting a cloud, doubt, or suspicion over the title of the rightful owner of any real estate in this State, cancelled, and such cloud, doubt, or suspicion thereby removed, in a case properly before it for that purpose. But the special limited jurisdiction conferred by the statute does not draw to it the incidental powers which belong to a court of chancery in the exercise of its general jurisdiction, but must be restricted to the special cases and .the particular relief contemplated by the act. Hence the jurisdiction to remove clouds, doubts and suspicions from over the title of the rightful owner of real estate conferred by this act upon the Court of Chancery, does not, as incident to this jurisdiction, authorize the Court of Chancery to take jurisdiction of the whole controversy in relation to the title to the land, the right of possession, the rents, jssues and profits, and thus usurp the jurisdiction belonging to the courts of law.

Under the facts appearing in this record we think the court acted rightly in decreeing a cancellation of the deeds, here complained of. Having been executed by a feme-covert, in her own ■ name, without the joint action of her husband, the deed was void. "We are referred to art. 32, p. 313, R. Code, for the position assumed by counsel for plaintiff in error in argument — that the wife may “jointly, with her husband, or sepmatelyf convey her separate real estate. ~We think this is a misconception of the language employed in this article. In the. same chapter, p. 307, art. 4, provision had been made, enabling the wife by joint deed of herself and husband, properly acknowledged, to make conveyance of her real estate. The construction of art. 32, p. 313, R. Code, here contended for, would render the two articles repugnant; art. 32 has reference to conveyances of the right to dower, which are sometimes by sepa/rate relinquishment — of the wife — while art. 4, p. 307, has reference to the wife's separate real estate.

It is insisted for plaintiff in error, that he is in the adverse possession of the land in controversy, and that it was incumbent on the complainant below, to show a perfect title, and that they were the rightful owners thereof, before they were entitled to this statutory remedy.

Under the facts before us, the plaintiff in error does not occupy the position of one in the adverse possession of real estate. He has not only no color of title, as against the defendants in error, but, holding possession under them by a void deed, or no deed, he is their tenant, either at will or by sufferance, and cannot be heard either at law or in equity, to dispute the title of his landlord. He is estopped from either setting up title in himself, or claiming title under another. Day v. Cochran, 24 Miss. R., p. 272; Griffin v. Sheffield et al. 38 Miss. p. 389.

The' chancellor therefore rightly decreed a cancellation of these deeds, and ordered an account of the value of Confederate money at the respective times of its paymeut. But it erred in ordering an account of the specie value of Confederate money. Under the decision of the Supreme Court of the United States, its legal tender notes occupy the place of specie, in this respect, and the plaintiff in error was therefore entitled to have the value of Confederate notes in legal tender notes, restored to him; and the court should have decreed the cancellation of the deeds, upon the repayment by the defendants in error, of the value of the Confederate notes, in legal tender notes.

The court further erred in decreeing an account for rent as well as the delivery of.possession of the premises to the defendants in error.

The court had no jurisdiction under this statute, as we have already seen, to make such a decree, but must leave the defendants in error to their remedy at law, both for possession and mense profits.

Let the decree be reversed and cause remanded for further proceedings, in accordance with this opinion.