Jones v. Rogers

85 Miss. 802

Opinion

Houston,

* J.,

delivered the opinion of the court.

This was a bill filed November 11, 1903, by appellees, William O. Rogers, et al., against J. T. Jones and Harrison county, and also against the five parties constituting the board of supervisors of said county, as individuals and as members composing said board, to remove clouds from the title of complainants to certain lots in Gulfport, Harrison county, upon which the county courthouse and jail have been erected, specifically praying that a deed from S. -S. Bullís to J. T. Jones, dated March 1, 1902, and one from J. T. Jones to said defendants, members of the board of supervisors, dated June 24, 1902, to said lands, be canceled and declared void as against complainants; that a writ of assistance issue to put complainants in possession of said lands, and that a» accounting of the damage, destruction, and waste of a permanent nature committed by defendants be taken, and personal decrees be rendered against them for the amount found due, and also for a reasonable rent from the date of their occupation of said land.

The bill alleges that complainants “are the lineal descendants and sole surviving heirs at law of John Martin, deceased, who was their rancestor ’ and who died intestate in New Orleans, La., in 1848, seized and possessed in fee simple” of said land. And they deraign their title as follows:

1. A sale of said land to James McLaran, December 11, 1834, and a patent issued to him by the United States government January 5, 1841.

2. A purchase by their said “ancestor” at a sale made by United States Marshal G-win, on October 28, 1839, at Jackson, Miss., under an execution issued June 11, 1839, on a judgment rendered by the United States circuit court at Jackson, Miss., November 16, 1837, in the case of Wanzer & Harrison et al. v. McLaran & Hammond; that said lands were duly advertised and sold in the city of Jackson at the front door of the statehouse, at which sale they aver that “said John Martin became the highest bidder for $!60; that said lands were knocked off to him, and he then and there paid the purchase money to said United States marshal, and that he (Martin) owned the same until his death, and that his heirs had never sold or disposed of same in any manner whatever;” that said James McLaran, defendant in execution and also patentee of said land, yielded up possession of said land after sale of same on October 28, 1839, and never afterwards during his life exercised any acts of ownership or claim whatever over same; that divers persons set about to defraud and cheat complainants out “of said lands, and did, without authority of law, sell and convey same and concealed as far as possible all facts of this sale, when they knew that John Martin was the owner by virtue of said sale of all the right, title, etc., which said Mc-Laran had in and to said lands; and they knew when Martin •died, in 1848, that his said heirs became vested with all right and title thereto which said Martin and McLaran had to same, but, notwithstanding this fact, and that they knew of the residence of complainants, yet they did combine and confederate to get possession and dispose of said lands, and did conceal and secrete all the facts from complainants, who were then infants; and that complainants have just of recent years learned the facts in connection with the sale and purchase of said lands, and, after learning that they had been defrauded and cheated of their liona fide property, they at once set about establishing their claim; hence the delay in bringing this suit.”

It further alleges that J. T. Jones, under a spurious deed, duly recorded, pretends to have title to said lands, and has gone into possession thereof, and, although he had no right or title, he made a deed thereto to Harrison county, or to the members composing its board of supervisors and to their successors in office, conditioned that if said county shall at any time cease to use said land for a courthouse and court purposes, then the title shall cease and revert to said grantor; that said board did then and there combine and confederate with co-defendant, Jones, to cast a further doubt and cloud on the title of complainants, and did then and there record an 'order on their minutes, accepting this conditional deed of gift in their own name, over the objection and protest of complainants; and that said deed and order of acceptance are void under § 303, Code 1892, as being ultra viresj that said board has erected on said land a courthouse, etc., against the consent and protest of said complainants, which constitute a public and private nuisance and ought to be abated. Copies of both of the above deeds, and also of the judgment, execution, and return thereon, are made exhibits'to the bill.

In view of the importance of this suit and of the fact that we have been informed that this is a test case as to many others involving the same question, we have thus fully set out all of the material allegations of the bill, in order that the grounds upon which our decision is based may be manifest.

To this bill separate demurrers were interposed by J. T. Jones and by his co-defendants, the members of the board, both in their individual and official capacities; but the main grounds of both demurrers are substantially the same. Aside from the general ground of want of equity on the face of the bill, for the sake of brevity and perspicuity, the special causes of demurrer assigned may be grouped as follows:

1. That the allegations of the bill do not warrant the legal conclusion that complainants are all the heirs at law of John Martin or that they have any title or interest in said lands.

2. That the bill seeks to divest the legal title out of the heirs at law, devisees or leg’al representatives of James McLaran, the patentee and defendant in the execution, but does not make any of them parties; and, hence, there is a non-joinder of parties.

3. That, upon the facts averred in the bill and exhibits, the alleged sale of October 28, 1839, was not made either at the time or place fixed by law for making such sales, and was void, and John Martin acquired neither the legal nor equitable title to said lands thereat.

4. That whatever right or interest complainants or John Martin acquired under said sale is now barred by the ten years’ statute of limitations.

5. That the alleged-fraudulent concealment that has, for a half century, kept complainants in the dark as to their rights, is not alleged to have been the act of any of defendants or any one in privity with them.

6. No facts stated from which any conclusion can be drawn that complainants have been defrauded by any one acting in concert with, or in knowledge'of, defendants.

Both demurrers being overruled, the defendants were granted, and prosecuted, this appeal.

We waive a discussion of the first and second causes of demurrer as above set forth, as, in our opinion, the case can and should be decided upon broader lines.

In bills to remove clouds from title certain general principles have been so well and so long settled in this state as to have become almost axiomatic. In fact, it would hardly be necessary to state them, but that their proper application to tbe facts alleged in the bill and exhibits in this cause will, in our opinion, be determinative of this controversy.

Those general principles are that when a party comes into a court of equity and asks its active intervention to vest title in him or to remove clouds from his title and cancel the title of a defendant, it is incumbent upon him to allege and show that he has a perfect legal or a perfect equitable title to the property; that if he fails in this, he must necessarily fail in his suit, as, without such a title, he is not the "real ovmer” within the contemplation' and the very language of our statute (Code 1892, § 500), as was expressly held as far back as 1873 in the case of Carlisle v. Tindall, 49 Miss., 229, in construing the words "real owners” used in Code 1871, § 975.

And this, regardless of whether the title of defendant be good or load, valid or invalid. Complainants in such cases have no reason to concern themselves about the title of the adversary, and cannot even bring it in question. In fact, a complainant need not even ¡joint out any defects in defendant’s claim, even though he may describe in his bill the instrument on which such claim is based. lie cannot maintain his suit because of. any defects that may exist in defendant’s title. He must recover, if at all, on the validity of his own.

It would be a vain parade of research to cite all of the decisions of this court sustaining these propositions, which of course are recognized by learned counsel for appellees. Many cases will be found in the annotations under Code 1892, § 500.

We only deem it necessary to cite the following (not annotated), which distinctly and specifically announce these principles: Hart v. Bloomfield, 66 Miss., 100; Goff v. Cole, 71 Miss., 46; Wilkinson v. Hiller, 71 Miss., 678; Gregory v. Brogan, 74 Miss., 699; Wilberger v. Pucket, 78 Miss., 650.

Now, waiving any discussion as to the validity or invalidity of the title of defendants under their respective deeds, which would be but a consumption of time, in view of the conclusion we-have reached, let us consider whether the bill and exhibits allege such facts as show that complainants have either a perfect legal or a perfect equitable title to the lands for which they bring this suit.

It will be observed that the bill does not aver, and complainants do not claim, that they or their ancestor, John Martin, have or ever had a deed of any kind whatever to said lands, or that they became the real owners by adverse, open, and notorious possession thereof.

Upon what, then, do they base their claim that they are the real owners, either legal or equitable, of the lots in controversy ? This is answered not only by the brief of counsel for appellees, but, after alleging the marshal’s sale of October 28, 1839, before mentioned, the bill expressly and explicitly alleges “that they” (complainants) “are claiming their rights and title to this property under this marshal’s sale.”

Without considering or deciding as to whether McLaran, to whom no patent was issued until January 5., 1841, had any title subject to sale under execution on October 28, 1839, or as to whether the pleadings show that this was a sale under a valid execution, based upon a valid judgment — and, if so, whether said judgment had been previously satisfied — we proceed to consider “Exhibit A,” filed with the bill, which, under Oode 1892, § 528, “must be considered on demurrer as if copied in the bill.” Indeed, the bill specifically states that the “facts of this sale will more fully and at large appear” by reference to “Exhibit A,” which is prayed to be made a part thereof. This “Exhibit A” is a certified copy of the following papers:

1. A judgment by default, rendered November 16, 1837, by the United States circuit court in the case of Wunzer & Harrison v. McLaran & Hammond, for the sum of $4,121.86.

2. The execution issued, June 11, 1839, on said judgment.

3. The marshal’s return on said execution. This return shows that the marshal made two separate, different, and independent sales of lands under this execution. The recitals of the return which relate to the sale of the lands in controversy, on October 28, 1839, are as follows:

“This execution, together with the others mentioned above, was also' levied on the following’ described lands — to wit: Sees. 35 and 36 in T. 7, R. 11, west, and fractional secs. 1, 2, 3, 8, 9, and 10 in T. 8, R. 11, west — all lying on or near the seashore in the vicinity of Mississippi — which said lands, after having been duly advertised, were sold in Jackson, on the 28th day of October, 1839, to John Martin, for the sum of $760, he being the highest, best, and last bidder.” Signed “Wm. M. Gwin, Marshal, per F. 8. Hunt.”

It will be noted that this return does not even recite or show that John Martin, through whom complainants claim, ever paid his $760 bid for said land; but the bill does allege this, and hence, on demurrer, this fact must be taken as admitted.

It will also be observed that this sale and return purport to have been made and the return is signed not by the United States marshal himself, but by “Wm. M.-Gwin, marshal, per F. 8. Hunt ,” while the bill alleges that the “sale Avas made by the marshal of the United States, Wm. M. Gwin.”

Of course, it is well settled in this state that when an exhibit is made' a part of the bill, by Code 1892, § 528, and is contradictory to some averment in the bill, the fact will be taken in conformity with the exhibit. House v. Gumble, 78 Miss., 259; McNeill v. Lee, 79 Miss., 459.

It is insisted by appellants that the question as to whether the alleged return by the United States marshal is in fact such a return by said officer or by some private person, and the legal construction to be given this return, are questions for the court, regardless of the averments of the bill; that the so-called return is not signed by any person claiming or assuming to act as the United States marshal, or by any person styling himself the deputy or properly authorized agent of such officer; that ivho UF. 8. Hunt” was, nowhere appears from this record; and that, therefore, the sale Avas void.

We refrain from deciding the question thus presented, preferring to predicate our conclusion upon other and more important grounds; for, in our opinion, this sale to John Martin is absolutely void, under well-recognized principles, for many reasons, inter alia;

1. Because the land alleged to have been sold was insufficiently described. The return on the execution utterly fails to show the county or the state in which said lands were situated, nor does it show anything from which this can be determined.

It described all of the lands sold at that sale as “lying on or near the seashore in the fvicinity’ of Mississippi.”

According to this description, none of this land was in this state at all, but was “in the ‘vicinity’ of Mississippi.”

Certainly, to be in the “vicinity” of a certain county or state is not to be in that county or state, but to be outside of it, though near it, only in the neighborhood of it.

Etymologically and by common understanding, “in the vicinity” means in the neighborhood, and “neighborhood,” as applied to place, signifies nearness.

“In the vicinity” does not even mean adjoining to or abutting on, but merely close by or neighboring country. Webster’s International Dictionary, revised and enlarged; Anderson’s Law Dictionary, title, “Vicinity;” English’s Law Dictionary, title, “Vicinity;” vol. 8 of “Words and Phrases Judicially Defined,” p. 7317; 29 Am. & Eng. Ency. Law (2d ed.), p. 1056.

We deem this so clear as to require no further elucidation.

The other descriptive words, “on or near the seashore” cannot help the description, for the land might be “on or near the seashore” and still be in any state, from Mexico to Elorida, except Mississippi; for the recital describing the land as being “in the vicinity of Mississippi” shows absolutely that it is not in this state.

2. This sale was not made at the place prescribed and required by the law under which it was made. The language of tbe statutes in force at tbe time this sale was made, as to where such sales should occur, is clear and unmistakable.

Section 3 of act of congress, approved May 19, 1828, provided : “That writs of execution and other final process issued on judgments and decrees rendered in any of the courts of the United States and proceedings thereon shall be the same . . . in each state, respectively, as are now used in courts of such states,” etc. Beers v. Haughton, 9 Pet., p. 337 (Lawyer’s ed., book 9, 149); Smith v. Cockrell, 6 Wall., 756 (L. ed., vol. 18, 973). This statute is the origin of sec. 914 of the Rev. Stats. U. S.

Section 4 of a special act of Congress, approved February 16, 1838, provided: “That the marshal of the several districts of the state of Mississippi, in addition to the several sale days, now allowed by law, may be authorized to sell property at the courthouse in each county on Monday of each week and on the first and second days of each term of the district court; and he may, at the written request of the defendant, change the sale of jDroperty to the place where .the United States court for the district is holden; provided, in the opinion of the marshal, the interest of the plaintiff is not compromitted thereby.”

The Mississippi statute, which governed such sales at the time this one was made, provided that all sales of land should be made at the courthouse of the county, and on the first and third Mondays of each month. Sec. 17, Act June 22, 1822;. How. & Hutch. Dig’., 633. Decisions of the supreme court of the United States, as well as of various states, have placed beyond the realm of controversy the proposition that United States marshals in the sale of property under execution must sell it in strict conformity to the state law, otherwise it is void and can confer no title whatever. Smith v. Cockrell, 6 Wall., 756 (L. ed., vol. 18, 973); Boneman v. Norris, 49 Fed. Rep., 438.

Statutes fixing the place of sale of lands under executions are mandatory, and not merely directory; and it is the imperative duty of officers to make such sales at the very place designated, and a sale made at any other place is not voidable merely, but absolutely null and void. The place of sale is the very essence of the sale, and strict compliance with the statute is absolutely essential in order to transfer a good title to realty. Koch v. Bridges, 45 Miss., 257; Loudermilk v. Corpening, 101 N. C., 649; Sinclair v. Stanley, 64 Tex., 67. In Moody’s Heirs v. Moeller (Tex.), 13 Am. St. Rep., 839 (the Texas statute being the same as Mississippi’s as to the place of sale), a United States marshal made the sale, not in front of the door of the courthouse of the county, but in front of the door of the United-States court building, standing just on the opposite side of the street from the county courthouse. The court held that the sale was not simply and merely voidable, but was absolutely void, incapable of ratification and subject to a collateral attack, and that the acquiescence of the defendant in the' execution in such a void judicial sale gave no validity to it.

It is, perhaps, proper in this connection to call attention to the allegation of the bill that the lots in controversy were, at the time of the sale, in fractional sec. 9, T. 8, R. 11, west, of Hancock county, though they are now, of course, situated in Harrison county, which was formed out of Hancock county in 1841.

The return of the marshal expressly recites that these lands were sold, not at the courthouse in the co'unty of Hancock, where the land was then situated, but “in Jackson.”

The law (which was mandatory, and not merely directory) made it the imperative duty of the marshal to sell the land at the county courthouse of the county where the land was situated, except where the defendant in execution should make a written request otherwise, in which event only was the' marshal legally authorized or empowered to “change the sale of the property to the place where the United States court for the district is holden.” The existence of this “written request” on the part of James McLaran, the defendant in the execution, was a necessary prerequisite and a condition precedent to tlie power of the marshal to sell this land “in Jackson” or at any place other than at the courthouse of Hancock county. It was the sine qua non of his authority. Without it he was, by the very provision, and language of the statute, only “authorized to sell property at the courthouse in each county” where the land was situated. Being a condition precedent, and a vital> jurisdictional fact, his return must have shown and proved it. Its existence cannot be presumed. Only the writing proves it. Congress certainly would never have required not only that such a request be made, but that it should be a written request, if it had intended that it could be established by presumptions or suppositions or inferences. But even if it were permissible to indulge in vague presumptions in regard to vital, jurisdictional facts affecting the title to land, we think the presumptions which could be drawn from this record would all bo against the existence of a “written request.”

'As stated, this same marshal or party made two separate and independent sales of land under this execution; and in his return as to the -first sale (of lands other than those here involved), made October 7, 1839, he not only expressly recited that this first sale was made at the front door of the statehouse, in the city of Jackson, but also specifically recited that the “defendant had consented in writing that said sale should take place at Jackson;” and yet, although in his return as to the sale in controversy, made three weeks later, he sets out, or purports to set out, all of his acts as to this last sale, not one sentence or syllable is said as to the existence of any such written request, or of any character of request, of James McLaran that the land should be sold in “Jackson.”

This return, setting out with great particularity the existence of the “written request,” and all the facts as to one sale of certain other lands, and being noticeably and strangely silent as to the existence of any request relative to the sale of the land in question, would seem to be presumptive evidence of its nonexistence. But even if we should presume or assume that there was a “written request,” then the marshal only had authority, under the statutes cited, to change the sale of this land from the county courthouse “to the place where the United States court for the district is holden.”

While the first sale is recited to have occurred in the city of Jackson at the front door of the statehouse, the second sale is merely recited to have occurred “in Jackson,” though the bill does aver that the sale occurred at the front door of the statehouse in Jackson.

In our opinion, the word “place,” as used in the statute, did' not mean any or every place in the town in which the court might be holden, but the particular place, the special house, in which the United States court held its sittings. Surely, the statute ought not to be construed to mean that the mere naming of the city in which the court sat and the sale of land anywhere within the broad limits of that city would sufficiently designate the “place” where it was held or be a strict compliance with the statute as to the sale of realty, and it nowhere appears either in the bill or exhibits that the statehouse in Jackson was, at the time of this sale, the “place” where the United States court was holden. Hartley v. Cazye, 38 Minn., 325.

Taking the pleadings as to all of these matters most strongly against the pleader, we hold that the marshal, instead of strictly conforming to the statutes in the sale of this land, palpably violated their plain provisions. While it is admitted that the bill and exhibits do not allege or show that the marshal executed a deed to John Martin, the alleged ancestor of complainants, or that he or they ever had a deed of any kind whatsoever to said land, or that any such deed ever existed, still able counsel for appellees contend (to use their own language)-“that the bill alleges circumstances and facts from which the court is compelled to presume that a deed was made in this instance, after an interval of sixty years,” inasmuch as it was the habit of said Martin to record his other deeds and. as the bill alleges that the records of Hancock county were destroyed by fire in 1853 and that the records of the judgments of' the United States court were taken away, lost, or destroyed in 1861 to 1865.

Even if the habit of John Martin to record his other deeds would be presumptive evidence in favor of the pleader (against whom the pleading must be taken most strongly) that this particular deed existed and was recorded (where the pleader fails to so allege), still we find nothing in this record to show that such was the habit of said Martin. As to the destruction of the records, while the bill alleges “that no part of the records of land can be found in the said county of Hancock or of Harrison, in which said lands were situated,” yet it totally fails to show that any such deed was ever recorded on those records or that any such deed ever in fact existed. As a matter quite of course, if no such deed ever existed (and the pleader does not allege that it did), then it could never have been recorded on those records, and hence the allegation as to the records being destroyed becomes immaterial; at least we are not authorized, under the law, to presume therefrom that this particular deed was actually executed, and also that it was actually recorded thereon, and after thus creating one presumption in order to supply the facts which the pleader has failed to allege, then go a step further, and on this presumption raise and found another presumption, that all of the prerequisites and jurisdictional facts existed, authorizing the execution by the marshal of this very deed. However, it is further insisted that, after an interval of sixty years, the court should presume that this deed' was actually executed, because in the first part of the bill it is alleged “that complainants’ ancestor, John Martin, at the time of his death, in 1848, was seized and possessed in fee simple of these lands,” and because the bill afterwards avers “that the defendant in the execution and the patentee of said lands yielded up possession of same after the sale of said lands on the 28th day of October, 1839.”

In. our opinion, the first allegation just quoted must be construed to mean simply, merely, and only that constructive possession which the law imputes to the holder of the legal title, and not that John Martin even then (away back in 1848) was in the actual possession of said land. At best it was but the statement of the legal conclusion of the pleader, and not a statement of the fad, that said Martin was in truth in the actual possession thereof, and, therefore, it is not admitted by the demurrer. This same observation applies to other averments of the bill, many of which are merely legal conclusions.

It will be perceived that the second allegation just quoted merely says that the defendant in execution “yielded up possession” of these lands “after” their sale. It does not show when or to whom he “yielded up possession,” whether to John Martin or to some one else, and, if to John Martin, how long this was after the sale. If it he said that this means immediately after the sale, in 1839, he “yielded possession,” then how long did Martin remain in possession, and what time, and by whom, and how, was he dispossessed ? Not one of these facts is alleged, nor is there a sufficiently distinct and positive allegation even that Martin or any one claiming under him was ever, at any time, in the actual possession of these lands, as could' easily have been done, and as the rules of pleadings require should have been done, if they were facts and complainants desired to rely upon them.

IJnder elementary principles of law, requiring us to construe pleadings most strongly against the pleader, we do not feel authorized to supplement the pleadings with our suppositions or to supply the facts with our presumptions, and assume that a certain state of facts existed in favor of the pleader which he himself does not allege, in order to presume that a certain deed in his favor was duly and legally executed and delivered. On the contrary, after sixty years have elapsed since this sale, and when the complainants fail to aver that there was any deed duly executed, or that their ancestor ever took possession, or that be or they remained in possession (especially when they allege that defendants are now in possession), and when they rely solely and merely on the return of an' officer under an execution, it would seem that if any presumptions should be indulged, it should be against the complainants and against the existence of the deed.

In the case of Cooper v. Granberry, 33 Miss., 117, the court said that “in the absence of a showing that his (complainant’s) bid was consummated by a deed, it will be presumed after this lapse of time (fifteen years) that he transferred his bid or did some act renouncing it,” holding also that a return on an execution does not transfer the title, but at most only gives a right to demand a deed conveying the title.

The case of Normant v. Eureka Co. (Ala.), 39 Am. St. Rep., 45, expressly holds that, before the court will presume that a deed was made by the officer, the purchaser must establish the fact that he not only went into possession under the sale, but continued in possession.

But even if this sale was' a valid one, still we are clearly of the opinion that whatever rights complainants or John Martin may have acquired thereunder have been lost, and that they were barred by the statute of limitations when this suit was instituted on November 11, 1903, which was over sixty-four years after the sale occurred. Even if we could presume or infer from the allegations of the bill that John Martin went into possession and was in possession until his death, in 1848, still that was fifty-five years before complainants brought this suit to recover this land; and Code 1892, § 2731, requires “a person claiming land in equity” to bring his suit to recover same within the “period” of ten years after the right to recover- ir accrues, and this without regard to any question of adverse possession or whether the defendants have been in the adverse possession of the land or not. The adverse possession of defendant has nothing to do with the question or with the operation of this particular statute. A complainant has a right to bring his suit in equity for land whether he is in possession or not and whether defendant is in possession or not; and if he does not bring it -within the period of ten years after his right of action in a court of equity accrues, he is barred. The provisions of sec. 2731 relate to a “period" of time within which suits to recover land may be brought by any one “claiming the same in equity.” This sec. 2731, in our opinion, is in the nature of a statute of rest. The complainants here are “claiming this land in equity,” and, not having brought their suit to recover within the “period” prescribed by sec. 2731, are clearly barred, unless the allegations- of their bill bring them within the last clause thereof, which is as follows: “But in every case of a concealed fraud the right of any person to bring suit in equity for the recovery of land, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at, and not before, the time at which the fraud shall, or with reasonable diligence might, have been first known or discovered.”

The bill only avers in a general, vague, and indefinite way that “after the sale” (which was over sixty-four years ago) “divers persons” (without stating who) set about to cheat and defraud complainants out of the lands (without stating how), and that these divers persons combined and confederated to get possession and dispose thereof, and concealed and secreted so far as possible ail facts of this sale from complainants, who have just of recent years learned the facts.

These allegations immediately follow the statement in the bill as to the purchase of the land by Martin in 1839 ; and, construing the pleadings most strongly against the pleader, it would seem that these “divers persons” must have set about at once to cheat and defraud, get possession of this land and dispose of it, or it may be that it was not until the more recent year of the death of Martin, in 1848, as his death is expressly alluded to in this same sentence and connection, and just before the charge of the combination and confederacy is set forth; and although this last date, even, was fifty-five years ago, yet complainants aver only in a general way that they learned of the facts just of “recent years,” without stating how long they had known of it or what diligence they exercised in trying to discover it sooner.

To prevent this statute from beginning to run against them in favor of defendants, complainants must not only allege first fraud and the facts or acts constituting it; second, that these acts of fraud were committed by defendants or some one in privity with them; third, that they were concealed from complainants by defendants or their privies; fourth, that complainants did not discover or know of this fraud over ten years before instituting their suit; but, fifth, they must also allege and show that they exercised reasonable diligence to discover it sooner, or that they could not, with reasonable diligence, have discovered it sooner.

In our opinion, the bill in this case fails to sufficiently aver or show all or any of these necessary facts.

The bill does not disclose who the “divers persons” were who combined and confederated to cheat and defraud complainants and to conceal and secrete the facts; but the defendant, Jones, was hardly one of them, as the bill alleges that he was formerly of Buffalo, New York, but now of Gulfport, Miss., and the first connection that he or the other defendants had with these lands, so far as shown by the bill and exhibits, was in 1902. But, however this may be, the bill wholly fails to connect Jones or any of the defendants or their privies with these alleged acts of fraud, and this was absolutely necessary in order to prevent the running of the statute of limitations against complainants or to affect the rights of defendants. Edwards v. Gibbs et al., 39 Miss., 166; Fleming v. Grafton, 54 Miss., 79.

In addition, the particular acts which constituted the fraud, combination, or confederacy are not alleged in the bill, but mere vague, indefinite, general, and uncertain averments are made.

And no principle is more firmly settled or more familiar to the profession than that fraud will not be inferred or presumed, and cannot be charged in general terms, but that the specific and positive facts which constitute it must be distinctly and definitely averred, and it must be shown that defendants participated therein.

This doctrine is nowhere more clearly, concisely, and forcibly stated than by Judge Truly in the recent case of Weir v. Jones, 84 Miss., 602 (s.c., 36 South. Rep., 533, 534), where the decisions are collated and cited. It is too well established and too widely recognized to require a further citation of authorities.

This opinion has been extended beyond ordinary limits, but as this appeal was prosecuted to settle the principles of the cause for future guidance, not only in this suit, but in others now pending, we have deemed it necessary to sacrifice brevity in order to attempt to attain perspicuity, especially as, after a careful consideration of this record, we have found ourselves unable to concur with the learned chancellor in his conclusions. We think the demurrer ought to have been sustained.

The decree is reversed, the demurrer sustained, and cause remanded.

Chief Justice Whitfield, owing to illness, was off the bench when this case was argued, submitted, and decided. W, D. Houston, Esq., a member of the supreme court bar, ivas duly appointed, and presided not only in this case, but generally in the absence of the chief justice.