McCarley v. Board of Supervisors

58 Miss. 483

• Court: Mississippi Supreme Court
• Decided: October 15, 1880
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

The position of appellant, as holding the land described in his bill by virtue of his purchase, as described, is such as to preclude him from assailing the title he acquired, either for want of authority in those with whom he dealt, or because of insufficiency in the description of the land. In reference to the accidental failure to affix a scroll to the name subscribed to the note, we are disposed to follow the cases of Wadsworth v. Wendell, 5 Johns. Ch. 224; Thomas Manufacturing Company v. Lathrop, 7 Conn. 550 ; and Rutland v. Paige, 24 Vt. 181. In the first case cited, Chancellor Kent said: “The omission to affix a seal was a mere mistake, contrary to the intention of the parties ; for the instrument concluded with these words: ‘ In witness whereof I have hereunto set my hand and seal.’ ” He regarded these words as evidence of intent to make the instrument a sealed one, and treated it as such.

The note of appellant shows it was intended to be a sealed instrument, and a court of equity will not allow him to claim and obtain a benefit arising from the accident of a failure, through mere inadvertence, to do what the words written show was intended to be done, and which, if it had been done, would have precluded the possibility of the assertion of the right now set up by the appellant.

Decree affirmed.