Price v. Foretich

103 So. 791, 138 Miss. 847, 1925 Miss. LEXIS 94

• Court: Mississippi Supreme Court
• Decided: April 13, 1925
• Docket: No. 24643.
• Status: Published

Opinion

McGowen, J.,

delivered the opinion of the court.

Mrs. M. L. Price filed her bill in the chancery court to confirm title to thirty acres of land in Harrison county, Miss., seeking cancellation of a certain deed held by the defendant, A. Y. Foretich, as against any and .all persons claiming any interest in the land.

Demurrer was filed to the original bill which was sustained, and an amended bill was filed asserting* title in the lands by virtue of adverse possession under a tax deed, and further seeking, cancellation of the deed from Wells and others to A. V. Foretich. The proof showed that the land sought to be confirmed is the east -thirty acres in the west half of the southeast quarter of section 7, township 7, range 9 west, that Dr. W. T. Bolton purchased this land at a tax sale in the year 18-97; the land being sold for the taxes due for the year 1896. At that time it was assessed to W. D. Chinn, who with his wife, the complainant here, now Mrs. M. L. Price, occupied the land at the time it was sold. Dr. Bolton purchased the lands at this tax sale, and soon thereafter Chinn and his wife removed from the land, and in 1898 W. D. Chinn died, and later his widow married a man by the name of Price. In 1910, for a consideration of twen ty dollars, this Mrs. Chinn, now Mrs. M. L. Price, purchased the lands-from Dr. Bolton.

■ As the briefs of counsel, the assignment of error, and the record in this case, including the chancellor’s opinion, so far as wé are advised, disclose, the entire case hinges upon the one question of whether or not Mrs. M. L. Price, under those circumstances, could acquire title to these lands.

The chancellor below announced that:

“The law was that a person occupying land to whom it was assessed could not purchase at a tax sale and thereby acquire good title; that Chinn, the former husband of Mrs. M. L. Price, being’ disqualified from purchasing’;, his wife, Mrs. M. L. Price, could not purchase, and that his disqualification extended to her; and that, since they could not purchase directly, they could not indirectly, either of them, acquire the title.”

It is true that a purchaser at a sale of land assessed to said purchaser at his instance acquires no title by purchase at a tax sale. It is also true that one cannot strong-then his title by permitting land to be sold for taxes and then purchase at the tax sale. McLaughlin v. Green, 48 Miss. 175; Faler v. McRae, 56 Miss. 227; Smith v. Cassidy, 75 Miss. 916, 23 So. 427.

In this case there is presented a strict adherence to a rule without regard to the circumstances and conditions upon which the rule is based and in which it has its origin. According' to the record the husband, Chinn, who originally held the title, had been dead more than twelve years when Mrs. Price, Chinn’s former wife, acquired the title. The relation of husband and wife had been broken by death, and absolutely new relations existed when she became the wife of another man.

It must be recognized that in Mississippi, since 1880, woman in her status toward her husband in the ownership of her property has been fully emancipated, and she is under no disability of. coverture such as existed in former days. The reason for the rule invoked and applied by the chancellor in the decision o'f this case was the- relation of trust and confidence which existed between husband and wife, but the trust relations must exist to create the disqualification. In Cameron v. Lewis, 56 Miss. 76, this court held that an attorney employed to examine a title could not avail of information acquired in the prosecution of an investigation to purchase an outstanding title in his client’s interest upon the ground of fiducial'relations. The same case was again before this court (56 Miss. 601), where the court held that the wife who was used as the means by which Cameron acquired the outstanding tax title could not acquire the title for the attorney; the court using this language:

“That Cameron himself could have bought up the outstanding' tax title and used it against his client nobody will contend. Neither can it be tolerated that, upon information furnished by him, and by money forwarded through, if not supplied by him the title has been vested in his wife and her minor brother. To permit him, by such easy evasions, to accomplish indirectly that which the law forbids him to do directly would be a reproach to any system of jurisprudence; nor can. members of his family be allowed to reap the benefit of his breach of professional duty. ’ ’

We have cited these authorities to show that in the oases relied upon by the appellee in the court below and here there was want of g*ood faith as well as the fiducial relation. Quoting from 26 R. C. L. at page 416:

“It is held in most jurisdictions that the obligations and duties of husbands and- wives to each other, both express and implied, create such relations of trust and confidence between them that neither can acquire the property of the other by purchasing it at a sale for nonpayment of taxes. In some states, however, it is held that a wife, not being in possession or receiving the rents, and not being; under any other legal or moral obligation to pay taxes, may acquire title to land owned by her husband and others' by purchase at a sale for taxes, provided such purchase is made\ in good faith and with her own money.” (Italics ours.)

There is nothing in this record to connect Mrs. Price with her former husband in this transaction. There is nothing in the record which tends to show that in the purchase of this land in 1910 she did not do so in perfect good faith with her own amoney. It appears to be a bovafide transaction without any suspicion of a violation of the trust relation, and to hold that, because she was the wife of the husband who had allowed the land to be sold for taxes to another, whether by design on the part of the deceased husband or misfortune or poverty, would be to apply the letter of the rule to the exclusion of the spirit and without any good reason. We think Mrs. Price acquired a good title through the deed from Dr. Bolton, and that under the circumstances, her gpod faith and the bona-fides of the transaction not being impeached, the title vested absolutely in her1 and she was entitled to maintain her bill and have canceled the outstanding title of the defendant, Foretich, and to a decree quieting and confirming her title.

The decree of the court below is reversed, and decree here for appellant.

Reversed, and decree here for appellant.