Smith v. Walsh

63 Miss. 584

• Court: Mississippi Supreme Court
• Decided: April 15, 1886
• Status: Published

Opinion

Cooper, C. J.,

delivered the opinion of the court.

We are unwilling to disturb the judgment of the lower court in granting a new trial upon the first verdict. The rule that the action of the trial court upon a motion for a new trial is to be favorably considered upon appeal, and supported unless manifest error appears, is peculiarly applicable where the new trial has been granted, since in such cases the rights of the parties are not finally settled, as they are where a new trial is refused, but another trial is had. Dorr v. Watson, 28 Miss. 383.

There is no error in the record of the second trial, nor is the question whether by an equitable estoppel the legal title to land can pass presented. The question was involved in the first trial, but the jury found as a fact that the defendant was not estopped, and the court set aside the verdict because of newly discovered testimony which would show existence of the legal title in the plaintiff by proper conveyances.

Whether Smith was indebted to McCutchen & Co., and whether there had been a re-advertisement of the sale, were rendered immaterial by his acts in soliciting Walsh to appear at the sale and buy in the property at the price of three hundred dollars, which McCutchen & Co. claimed to be due to them. Smith’s request to Walsh was equivalent to a declaration by him that the sum claimed was due and that the acts in pais required to be done by the trustee had been performed. The advertisement of the sale was required for the benefit of Smith, and it might be waived by him without rendering the sale obnoxious to the statute of frauds. There appears in the record a complete chain of the legal title to the land, and this being the case, it is immaterial that the doing of other acts not required to be done by the statute of frauds was waived by Smith.

The. judgment is affirmed.