Opinion
No. 29918.
March 28, 1932.
1. EQUITY.
Chancery court has no authority to strike out evidence and grant decree because of insufficiency of evidence to sustain bill.
2. PARTITION.
Defendant in partition suit claiming by virtue of foreclosure of deed of trust had burden of going forward with proof of title, in view of statutory replication to answer (Code 1930, section 388).
3. PARTITION.
Chancellor erroneously struck out evidence of complainants in partition suit and granted decree for defendants without evidence sustaining title set forth in answer (Code 1930, section 388).
4. EQUITY.
Allegations of answer in partition suit cannot be treated as confessed, in absence of proof (Code 1930, section 388).
APPEAL from chancery court of Smith county. HON. T. PRICE DALE, Chancellor.
W.U. Corley, of Collins, for appellants.
It may be true, and we suspect it is true, that when Isaac Hays executed the mortgage to the Federal Land Bank, that he did cover one-third interest therein, but no more.
One cotenant cannot purchase to the exclusion of other cotenants property in which they have a common interest. Such a purchase inures to the benefit of all other cotenants.
Gilchrist Fordney Company v. Ezelle, 106 So. 269.
The purchase by a tenant in common of a tax title to the common property, though he is not in possession, operates merely as an extinguishment of such title, for the benefit of all owners, and only giving the right to charge the costs on the property.
Cohea et al. v. John Hemingway et al., 71 Miss. 22; Beaman v. Beaman, 44 So. 987; McGee v. Homes, 63 Miss. 50; Robinson v. Louis, 8 So. 258; Clark v. Rainey, 16 So. 499.
Beaman v. Beaman, 44 So. 987, is not a case of a tax sale "but lands sold under a deed of trust given by a former owner just as in this case, and the wife of a cotenant purchased it in her own name, in order to acquire full title to the land. The court held, that her purchase inured to the benefit of all the tenants.
Freeman v. Freeman, 66 So. 202.
A tenant in common of land cannot acquire a title adverse to that of her cotenants.
Wise v. Hyatt, 10 So. 37; Shelby v. Rhodes, 105 Miss. 255; Coker v. Lewis, 99 So. 561.
A cotenant cannot by redeeming from a mortgage sale, invest himself, with absolute indefeasible title to the joint property as the redemption inures to the benefit of all if within reasonable time they elect to contribute and reinstate their title.
Savage v. Bradley, 43 So. 20; Stevens v. Reynolds, 143 Ind. 467.
In the case at bar, it was sought by Isaac Hays through his attorney, debtor and Federal Land Bank, to acquire a title unto himself, and to thereby oust his cotenants, Thomas Hays and secure the title unto himself, which he cannot do, except that he did give Thomas Hays an order to move off the land, which brought about the institution of this proceeding.
Tanney, 159 Penn. 277.
One tenant in common is not permitted, in equity, to acquire an interest in the property hostile to that of the other, and therefore a purchase by one tenant in common, of an outstanding title inures to the benefit of all.
Ramberg v. Wahestron, 140 Ill. 182, 27 Am. St. Rep. 569.
One cannot do indirectly what the law prohibits him from doing directly. If Isaac Hays could not purchase it indirectly so as to pay off his original personal debt and acquire the title for himself.
Burgett v. Taliaferro, 118 Ill. 503; Burns v. Burns, 45 Iowa, 288; Cohea v. Hemingway, 71 Miss. 22; Faulkner v. Thermon, 23 So. 584; Lloyd v. Lynch, 28 Pa. 419; Batsin v. Woods, 27 W. Va. 58; Hoyt v. Lightbody et al., 8 Ann. Cas. 984.
We submit that the court below, was wrong in everything it did. We say it respectfully, but the questions asked were in response to the defendant's own plea. They were not allowed to testify, when a statement was made by counsel as to what they expect to prove, objection was made to proof any of the facts stated, and everything counsel said for the defendant was sustained.
Homer Currie and Jos. H. Moss, both of Raleigh, for appellees.
Appellants in the court below on the trial of this case undertook to venture out into the realms of speculation, completely leaving and departing from the allegations of the bill of complaint, and undertaking to inject into the record of this case matters foreign and extraneous to the issue involved in so far as could be determined from the allegations of the bill of complaint filed in said cause, and even following up and arguing to this court such matters and things in their brief filed herein.
There is no merit in the first assignment of error made by appellants wherein the appellants charge that the court erred in sustaining objection to the testimony of the complainant as to why the original mortgage of William Hays was given, for the reason that no attack is made on the said mortgage, or no reference made to same in the bill of complaint filed in said cause, and besides such testimony would tend to establish the claim of this complainant against the estate of the deceased, William Hays, and for the further reason under the allegations of the bill of complaint this appellee, the Federal Land Bank of New Orleans, would occupy the status of an innocent purchaser for a valuable consideration without notice, and for other reasons that might be assigned and which are apparent to the court.
Assignment of error number two is without merit, for the reason that there is not an allegation in the bill of complaint filed in this cause whereby any alteration or fraud is charged to have been committed in respect to the deed of trust in question, nor is there any reference made or profert offered of the said deed of trust.
The appellants, Thomas Hays and others, filed a bill in the chancery court for the partition of certain lands, alleging that William Hays, deceased, homesteaded said lands, and that the title passed to him; that he died seized and possessed of said lands; and that the complainants, appellants here, and Isaac Hays, were heirs at law, together with the widow, Louisa Hays, of said William Hays. That Isaac Hays inherited a one-third interest in said land, and that Thomas Hays and Louisa Hays each inherited a one-third interest therein. That Isaac Hays, prior to his death, executed deeds of trust to the Federal Land Bank and to Horn Brothers, to secure a certain indebtedness, but that he only had a right to convey his one-third interest, and that complainants (appellants here) had never consented to said deeds of trust incumbering their land, and that they are entitled to have said land partitioned, and the respective interests of said Thomas Hays, Louisa Hays, and Isaac Hays set apart to them or to their heirs at law; and the bill prayed then for general relief.
The defendants, appellees here, filed an answer admitting that William Hays, in his lifetime, acquired title to the land in controversy, but denying that he died seized and possessed of the fee-simple title to said land, or that the complainants, appellants here, acquired any title from him, because it is alleged that William Hays, prior to his death, executed a deed of trust to J.B. Currie, as beneficiary, on said land, dated March 23, 1914, and duly recorded, and that said J.B. Currie had his trustee to foreclose said deed of trust, which trustee's deed bears date April 2, 1921, and is duly recorded. That said J.B. Currie immediately went into possession of said land, and in 1923, he, with Homer Currie, conveyed said land to Isaac Hays, who, after acquiring such land, executed the deeds of trust to Federal Land Bank and Horn Bros.
Both defendants set up the same reasons, and the same deeds of trust and foreclosure to J.B. Currie, in their answers. They did not exhibit with their answers copies of the deed of trust to J.B. Currie, the trustee's deed to him, or copies of the deed from Currie to Isaac Hays, or copies of the deeds of trust to them.
The complainants offered proof to show their heirship to William Hays, and attempted to prove that William Hays joined in the deed of trust set up in the answer to J.B. Currie in March, 1914, and that it was due October 15, 1914, and that the record had been altered so as to change the due date to November 15, 1915, and that the mortgage was foreclosed April 2, 1921, on which date it was barred by the statute of limitation.
The court refused to permit them to so prove, and when the complainants closed their evidence, after offering to prove said facts, the defendants moved to strike out the testimony of the complainants and grant a decree for the defendants, which motion was, by the chancellor, sustained and decree entered in favor of the defendants, from which decree this appeal is prosecuted.
Under section 388, Code of 1930, and similar sections of prior codes, a replication to an answer is not required, but the cause is at issue when the answer is filed.
The defendant's answer set up their deeds, or chain of title, in recognition of the title of William Hays, and depended thereon for a divestiture of title by the foreclosure of the deeds of trust and conveyances by the purchasers thereat to Isaac Hays.
The chancellor erred in striking out the evidence introduced by the complainants and entering a decree for the defendants. There is no such practice in the chancery court as striking out evidence and granting a decree because of insufficiency of evidence to sustain the bill. That practice does not pertain to the chancery court. Pearce v. Tharp, 118 Miss. 107, 79 So. 69; Carter v. Studdard, 118 Miss. 345, 79 So. 225; and Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653.
As the matter stood when the decree was rendered upon the bill and answer and the statutory replication to the answer, the burden was upon the defendants to go forward with their proof of title under the foreclosure proceedings. Yazoo M.V.R. Co. v. Adams, 81 Miss. 90, 32 So. 937.
It may be conceded that section 388, Code of 1930, only applies to denials, or matters alleged in answers, and that affirmative matters in confessions and avoidances should be properly pleaded; but that did not dispense with the production of proof to sustain the allegations of the answer in the present case, and, as the evidence was stricken from the record by the chancellor, there is no evidence to sustain the defendant's title set forth in the answer, and the decree was erroneous because the allegations of the answer cannot be treated as confessed in the absence of proof.
For these errors the decree will be reversed, and the cause remanded.
Reversed and remanded.