DocketNumber: No. 33550.
Citation Numbers: 186 So. 624, 186 Miss. 323
Judges: <bold>Griffith, J.,</bold> delivered the opinion of the court on suggestion of error.
Filed Date: 2/20/1939
Status: Precedential
Modified Date: 1/12/2023
In our original opinion we held that although it might be conceded that appellants' lease was invalid as a legal lease, it was sufficient as a contract to make a lease, which contract would be fully enforceable in equity, and we thereupon cited and relied on Bolton v. Roebuck,
Appellee has filed an able and elaborate suggestion of error in which he takes the position that since our present statute, Section 1427, Code 1930, as now worded, allows *Page 344
a plaintiff in ejectment to prevail where he "is legally entitled to the possession of the land," no defense whatever is available which in its nature is equitable. But this particular statute adds nothing to the law in this respect, as it already existed from the beginning of the jurisprudence of this state. See Winn v. Cole's Heirs, Walk. 119. The present statute adds nothing in the respect mentioned to what was the law when Bolton v. Roebuck was decided. And all along down the line it has been said that as against a defendant in actual possession the legal title will not prevail in ejectment when the defendant "has a complete equitable title sufficient to draw to it the legal title." Land v. Keirn,
Nothing new was announced, therefore, in Bolton v. Roebuck, supra; nor does appellee contend that it was erroneously decided. He says, however, that in that case the defendant had an equitable estate, by reason of the legal contract to convey the lands, and cites the recent case, Griffin Co. v. Jernigan,
In Collins v. Wheeless,
But back of all this, in so far as the present case is concerned, lies the fundamental principle that no man may recover in any action or suit, whatever may be its nature, when so to do, and in order to prevail therein, he must repudiate or withdraw, for no reason other than his own volition, an existing right which he himself has validly granted to the opposite party. In order to maintain any action or suit there must be (1) a right on the part of the plaintiff, and (2) a wrongful violation of that right by the defendant. Both elements are absent in this case, so far as the present record is concerned. 1 C.J.S., Actions, section 1, p. 939; 1 Am. Jur. pp. 417-419.
Here the plaintiff's grantor had put appellants in possession and had granted to them a valid contract to make unto them a lease for a specified period of time. The grantor could not eject the occupants who went into possession under him, and under such a contract with him which contemplated a continuance of that possession. He could not say that he was entitled to possession as against those he had himself put into possession under such a contract. Under his contract and delivery of possession he had himself agreed by his own act that appellants were rightfully in possession, wherefore he could not say by an ejectment action, or any other action, that they were wrongfully in possession. And since appellants were in actual possession at the time of appellee's purchase, his rights against appellants are no greater than those of the original grantor.
Suggestion of error overruled. *Page 346