McComb v. Gilkey

29 Miss. 146

• Court: Mississippi Supreme Court
• Decided: April 15, 1855
• Status: Published

Opinion

Mr. Justice Handy

delivered the opinion of the court.

■ This was an action of ejectment in the circuit court of Claiborne county, to recover possession of a lot of ground in the town of Port Gibson.

The wife of the lessor of the plaintiff claimed title to the premises as the heir at law of Elijah Bland.

The defendant claimed title from the same source, and in order to show that the title of Bland and his heirs at law had been divested, offered in evidence an act of the legislature of this State, passed in November, 1821, entitled “An Act to authorize the guardians of the infant children of Armstrong Ellis, Elijah Bland, and Francis Nailor, to sell real estate,” in the following words, —■

“ Section 2. Be it further enacted, that the guardian or guardians now appointed or hereafter to be appointed, of the infant children of Elijah Bland, be and they are hereby authorized to sell, under such rules and restrictions as the orphans’ court of said county of Claiborne shall prescribe, three lots of land in said town of Port Gibson.

“ Section 3. And be it further enacted, that the'said guardian, or guardians of said infant children of the said Ellis and the said Bland, be and they are hereby vested with full power 'to execute title or titles, in fee-simple, to the. purchaser or purchasers of said land and lot or lots.”

The 5th section provides, that the guardian of the infant children of Bland should, before selling the lots, enter into bond with security, payable to the judge of the orphans’ court, in such sum as he should direct, conditioned that the guardian would “ apply the proceeds arising from said sale to the payment of the debts of the said Bland, so far as it should be necessary,” and that the balance, if any, should be vested in such property for the said heirs, as Said judge should direct.

A guardian was appointed in January, 1827, by the orphans’ court and gave bond in compliance with the act, and at the same time, an order was made by that court, directing John Coursey, the guardian, to “ sell the three lots in Port Gibson, in the said act named, on a credit of one, two, and three years, provided that he dispose of the same for a sum not less than eight thousand dollars.”

The defendant then offered in evidence a deed from John Coursey, guardian of the heirs of Bland, and Elizabeth Co.ursey, his wife, who was the widow of Bland,' reciting the act of the legislature and. the order of court above mentioned, and, “ in consideration of the sum of eight thousand dollars, to be paid to John Coursey, in three equal annual instalments, commencing from the 12th day of instant,” due on the 12th of February, 1828,1829, and 1830, respectively, conveying to Edward Cronly all the right and title of John Coursey and Elizabeth his wife, and the minor heirs of Bland, to three described lots in the town of Port Gibson. This deed bore date 30th April, 1827, and ‘the defendant offered evidence to show that the sale was made on the 12th February, 1827 ; which will be noticed hereafter.

During the progress of the trial, several questions arose upon the admission of evidence and upon instructions granted and refused by the court; all of which, as well as the action of the court in Overruling the plaintiff’s motion for a new trial, are assigned for error.

We will proceed to consider these several questions.

The first position taken by the plaintiff is, that the act of 1821 was void; 1st, because there was no estate in court and no guardian in existence at the time of its passage to justify the legislature in granting the power to make the sale, and 2d> because the act is void for uncertainty in not specifying the property to be sold.

Upon the first point, it is not denied that the legislature had the power to authorize the guardian, if there had been one, to sell the lands; but it is said that, when there was no estate in court and no person having the lawful custody of the estate, upon whom the power could be”conferred, the legislature was incompetent to act upon the subject. This argument seems to proceed upon the idea that the power of the legislature in such -cases is restricted in the same manner as the jurisdiction of -courts, and that there must be in existence a party, having custody of the property, before the- power can be granted. But this is not true. The powers of the legislature are much more • ample than those appertaining to the courts. They are both •creative and administrative, and are not confined in their exercise to the rules applicable to tribunals merely judicial. Upon prqper representation and due proof made to the satisfaction of the legislature, that it was necessary to the interest of the heirs that the land should be sold, it was as fully within their power to authorize the sale to be made by a guardian to be thereafter appointed by the court having the general power to make the appointment, as by one already appointed. The substantial thing done was to authorize the sale, and that power might have been granted by the legislature to any one, even to the infants themselves. The guardian was certainly the most proper person to exercise it; and if there was no guardian, it was altogether proper and competent for the legislature to provide that the power should be exercised' by such person, when he should be appointed by the court to which such appointments are generally committed. Rice v. Parkman, 16 Mass. 326; Williamson v. Williamson, 3 S. & M. 715-746.

As to the want of certainty in designating the lots to be sold, the power conferred is general, “ to sell three lots of land in the town of Port Gibson.” It is said that under this indefinite power, the lots of any other person might as well have been sold as those belonging to the children of Bland. But by necessary implication, the power must be referred to the lots belonging to those children. And if the lots sold did not belong to them, they have no right to complain of the sale, because they are not injured by it. But if they did own the lands sold, is the power conferred by the act and the sale made under it, sufficient to convey the title ? Assuming that the act had reference to the lots belonging to Bland’s heirs, it appears that the guardian sold “ three lots of land in the town of Port Gibson.” This comes within the words of the power. If it did not appear that the heirs owned any other lots in the town of Port Gibson than those sold, the grant would be sufficiently certain, for it could be rendered certain by location. 4 Cruise’s Dig. ch. 20, § 56. But the evidence goes to show that there were more than three lots belonging to them in the town of Port Gibson ; and this presents the question whether the doctrine of election is applicable to the case.

Without expressing an opinion as to the very doubtful question whether the right of election would have passed under the terms used in this act if they had been employed in a grant or deed made by Bland in relation to the property, we are of opinion that a more liberal rule of interpretation should be applied to the act of the legislature than- to an individual grant or deed. The act was intended for the benefit of the heirs of Bland, and that object would have been wholly defeated by giving to the act any other construction than that it conferred the right upon the guardian to elect which three of the lots in the town of Port Gibson he would sell. It is conceded by the counsel for the plaintiff in error, that the right of election exists where it clearly appears that such must have been the intention in making the grant; and it appears to be clear that when the benefit intended to be derived by the grantor or other party for whose use the grant is made, would be defeated unless the right of election be conferred, it must be presumed that it was intended to confer it. Because the legislature must have intended the act to be effectual in furtherance of its object, and not nugatory; and it could only be effectual by giving the right of election.

The second'objection insisted upon is, that the order of sale by the orphans’ court was void for uncertainty in specifying “ the three lots in the town of Port Gibson, in the said act named,” and because no notice of the proceeding was given, to the heirs.

The power to sell was given to the guardian by the act of the legislature, and he was also vested with the right of electing which three lots he would sell, as is above shown. The order of the orphans’ court very properly did not attempt to interfere with the power thus conferred, but confined itself to what it was required to do by the act, only prescribing the rules and restrictions under which the guardian should sell “ the three lots ” which he was empowered to sell by the act.

As to notice to the heirs, we do not think it was necessary in the orphans’ court. The act of the legislature had already in effect ordered the sale of the property; and all the rest to be done was merely ministerial. That act must be presumed to have been passed by due and proper representation of the heirs, so that the execution of the power thereby conferred cannot be considered as depriving the heirs of their property without due course of law, in the sense of the 10th section of the 1st article of our constitution. The whole proceeding Was for their benefit, and must be presumed to' have been at their instance. The act does not in terms require notice, and we can see no useful object that could have been accomplished by giving them notice, even if the legal presumption did not exist that, as it was a proceeding for their benefit, the action of the orphans’ court was taken at their instance, upon proper representation. Rice v. Parkman, 16 Mass. 326; Watkins v. Holman, 16 Peters, 62.

Another ground of error assigned is, that the court refused to instruct-the jury that the sale by the guardian being private, and not a public sale to the highest bidder, was void.

Both the statute conferring the power to sell, and the order of court carrying it out, are silent as to the manner of making the sale. That appears to have been left to the discretion of the guardian under the sanction of the orphans’ court, and it cannot be brought within the operation of general laws regulating sales by guardians, administrators, &e., becatise it is a special power, and it is to be presumed that if the legislature had intended to bring it within general rules as to sales under the authority of the orphans’ court, it would have been stated in the act.

Again, it is objected that the court erred in instructing the jury that if they believed the legal title to the land in controversy to be outstanding in another person than the plaintiff’s lessor, they should find for the defendant. This was correct. The evidence tended to show a sale of the property by the guardian to Louis Cronly, and if that sale was properly made, it was sufficient to bar the plaintiff’s recovery in this action, though the defendant might not deduce a regular title from Cronly.

The next objection is, that the court erred in admitting in evidence a bill single, executed by Edward Cronly and others, dated 12th February, 1827, for $2,666.66, due 12th February, 1830, which was proved to have been found among the papers in the Claiborne circuit court, in a suit brought by the payee, John Coursey, against the makers; also a mortgage executed by Cronly, dated 12th February, 1827, to indemnify his sureties on the above-mentioned bill single, and two others of like import, which were stated in the mortgage to be each dated 12th February, 1827, and each for $2,666.66, payable to John Coursey, on the 12th February, 1828, 1829, and 3.830, respectively.

This evidence was offered by the defendant below to obviate an objection made by the plaintiff to the admission of the deed executed by Coursey, the guardian, to Cronly, the purchaser, which deed bore date the 30th April, 1827, and recited that the purchase-money was eight thousand dollars, “to be paid in three equal annual instalments,” “ commencing from the 12th day of instant,” (30th April, 1827,) but further recited that the three instalments Were due and payable on. the 12th Februafy, 1828,1829, and 1830, respectively. It was objected that it thus appeared by the deed, that the property was not sold on a credit of one, two, and three years, in conformity to the order of sale of the orphans’ court. The bill single and mortgage were offered in evidence for the purpose of showing that, although the deed bore date 30th April, 1827, yet that the property was really' sold on the 12th February, 1827. For the purpose of explanation, and in connection with the same point, the defendant proved that the deed was in the handwriting of one Davis, who was dead, except .the words “ thirtieth ” and “April,” in the date in the handwriting of Vandorn, the judge who took the acknowledgment ; and that Edward Cronly was dead, and further that there was no order in the records of the probate court authorizing Coursey, guardian of the heirs of Bland, to sell any property except the order above mentioned under which this property .was sold.

The first question arising under this objection is, whether it was competent to show that the deed was executed on a different date from that stated in it,'and on which it was acknowledged. It is clear that such evidence was competent. 3 Stark. Ev. 4th Am. ed. 1846. Secondly, was the defendant estopped by the recital in the deed that the instalments of the purchase-money “ commenced on the 12th of instant.” This point would seem to be settled by the question just stated ; for if a deed may be shown to have been executed at a different date from that appearing on its face, it follows that a recital in it having reference to the date would necessarily be varied.

■ But in order to create an estoppel by recital in a deed, the matter must be directly and precisely alleged, and with certainty to every intent. Coke, Litt. (Butler & Harg.) 352, b ; 2 Smith’s Lead. Cas. 514 and 536, Am. ed. If it be repugnant and contradictory, it can be no estoppel.' Here the recital is that the purchase-money, eight thousand dollars, was “to be paid in three equal annual instalments, commencing from the 12th day of instant, that.is to say, $2,666.66 on the 12th February, 1828, $2,666.66 on the 12th February, 1829, and $2,666.66 on the 12th February, 1830.” Inasmuch as it is impossible that the instalments could be annual, that is to say, on a credit of one, two, and three years, (which is the ordinary understanding of that term,) when they began to run in April, 1827, and became due in February, 1828,1829, and 1830, it is plain that such a recital cannot be conclusive of the fact stated. It is manifest -that there was a mistake which should have been explained.

But it is insisted that the bill single was incompetent, because it did not show that the deed bore an improper date. The true matter of inquiry was, what was the date of the sale, and whether it was made on a credit of .one, two, and three years, in conformity to the order of the orphans’ court. The recital in the deed tended to show to the contrary, and 'thereby to invalidate the sale. Hence the introduction of the note, as tending, to show that the deed was drawn up anterior to the day it bore date, and with reference to the date at which the sale was actually made. The evidence was clearly competent for this purpose, because it was the obligation given by the purchaser, as the circumstances tended to show, for the lots in controversy sold by Coursey, and under the circumstances of the case must -be considered as evidence of the date of the sale.

The mortgage was also competent evidence to the same point, and is not liable to the objection of being res inter alios acta. It was admissible upon the principle of being a written’ declaration or entry made by a person since deceased, against his interest. 1 Greenl. Ev. § 147. That it was against his interest is manifest from the fact that he thereby acknowledges’ his indebtedness to John Coursey, guardian, for the sum of eight thousand dollars, on three specified bills single, and conveys his property to the mortgagees, his sureties, to indemnify them for their liability for him. This mortgage was also a security to Coursey, in the event of non-payment of the debt to him, and that it should become necessary to resort to it. This was clearly against the interest of Cronly, and brings this evidence within the rule.

The last ground of objection is, that the court erred in overruling the motion for a new trial, because the verdict was contrary to the instructions of the court and the evidence in the case.

The fourth instruction given at the instance of the plaintiff is as follows: “ If the jury believe, from the evidence, that the interest of the children of Elijah Bland in the property sold by John Coursey to Edward Cronly, under color of said order of sale, was sold for less than eight thousand 'dollars, and that the dower interest of the widow of Elijah Bland in said property was sold together with the interest of said children, and valued at one third of the whole, and that the interest of said children was sold for the sum of $5,333.33, or any other sum less than eight thousand dollars, then such sale was and is void.”

At the instance of the defendant the court gave the following instructions: —

“5th. The fact that Mrs. Coursey joined in the deed conveying any interest she may have had, did not vitiate the sale, if the guardian sold' the lots for eight thousand dollars.

“ 7th. If John Coursey sold the three lots in his deed to Cronly described, for eight thousand dollars, and took the purchaser’s notes for the purchase-money, payable to himself as guardian, any misapplication made by him of the proceeds of the sale could not affect Cronly’s title.”

At the first view there is an apparent conflict between these instructions given at the defendant’s instance and that given in behalf of the plaintiff. But upon closer examination there appears to be no repugnance between them. The first declares in substance that if the interest of the children in the lots was sold for less than eight thousand dollars, whereby they did not realize the price for which the guardian was required to sell the property, the sale was void. The other instructions declare that the fact of Mrs. Coursey, the widow of Bland, joining in the deed, did not vitiate the sale, if made for eight thousand dollars; and if the guardian made the sale for that sum, and took the purchaser’s notes, payable to himself as guardian, the sale was valid, though he might misapply the purchase-money. The question was then fairly submitted to the jury, whether the sale in behalf of the children’s interest was made for less than eight thousand dollars, with the additional instruction that if the guardian took the purchaser’s notes for that amount, payable to him as guardian, that was evidence that the children’s interest was sold for the sum required, and that his misapplication of the money could not affect the purchaser’s title. We consider this a correct view of the law, and as presenting the point involved justly and fairly for the consideration of the jury. And the verdict settled the point of fact that the children’s interest in the lots was sold for the sum of eight thousand dollars.

Let us see whether'this view of the matter is unwarranted by the evidence, so that the verdict should not stand.

The first piece of evidence touching this point, is the deed from John Coursey, as guardian, and Elizabeth his wife, which recites that said Elizabeth was and is entitled to dower in the lots, whereby John Coursey had also acquired an interest therein ; that the premises had been ordered to be sold by the orphans’ court, in virtue of the act of the legislature. It then conveys for the consideration of eight thousand dollars, to be paid to John Coursey, in three equal annual instalments, all the right and title of Coursey and wife, and of the heirs of Bland, to the premises.

It is said that this deed does not purport to be a relinquishment or gift of the dower interest in the property, and that that must be considered to be a constituent part of the purchase-money, to which Coursey and wife were entitled. We cannot agree with this.view. The deed purports to be made under the authority of the act of the legislature, and of the order of court, which contemplated the sale of the interest of the heirs only. By the order of court the guardian was only authorized to sell that interest, upon the condition that it brought the sum of eight thousand dollars. He cannot be heard to say /that'he violated his authority, and that the sale was void; and if there-be any state of facts to be deduced from his interest in, or connection with, the property, which could justify his action and render the sale valid, it will be presumed. Such a justification is found in the fact that he and his wife surrendered their interest 'in the property for the benefit of the children. And although this is not expressly stated in the deed, there is nothing which negatives it, and it will be presumed, because othérwise the sale and conveyance would be void and in violation of Ms duty, against which every reasonable presumption will be indulged.

This presumption is strengthened by the evidence showing that the three, bills single for the purchase-money were made payable to him as guardian, — a fact entirely irreconcilable with the idea that .the sale was not made' wholly for the benefit of the children, unless indeed he intended to commit a fraud upon his trust, by appropriating to his own use a part of the money for which he had taken notes appearing on their face to belong to his wards. And this presumption, of course, cannot be indulged.

But it is said that his inventory of the property of his wards shows that they were entitled to but two thirds of the money for which the lots were sold. This inventory was made and returned in February, 1829, about two years after the sale and the date of the notes for the purchase-money. Giving to its statements the meaning contended for by the counsel for the plaintiff in error, we do not think that it can be regarded, under the circumstances of the case, but as an effort to misapply the proceeds of the sale. Having made the sale for the benefit of his wards, and taken securities for the purchase-money, payable to himself as their guardian, he would not have been heard to deny that the proceeds of the sale belonged to them, nor permitted to vary his accountability .by any subsequent return made by him to the court, especially by one which, if admitted, would vacate the entire sale. Much less will he be permitted by his subsequent acts, to divest the rights of a bond fide purchaser.

The other views urged by counsel to show that the verdict was not supported by the evidence, have already been considered in what we have said in reference to the note for the purchase-money and the mortgage given by Cronly. Being of opinion. that this evidence was admissible to show the date of the sale, it was, of course, proper to be considered by the jury; and, taking all the evidence together, we think that it was sufficient to sustain the verdict.

Upon consideration of the whole case, we think that the judgment is correct, and it is therefore affirmed.