Redus v. Hayden

Simrall, J.: The appellants, in 1860, brought their bill in the chancery court of Marshall county, seeking the sale of a tract of land and slaves, in order that the proceeds might be divided among them. The property came to them as heirs and distributees of Thomas Redus, deceased. The property had been devised by Redus to his wife, for life, or during her widowhood. No other testamentary disposition had been made of it. Redus died in 1844, and his widow in 1859. The court decreed a sale of the land on credits of nine and eighteen months, and the slaves on a credit of nine months* — 633 — and appointed Charles Cocke a commissioner to execute the decree. The sale was made on the 7th of February, 1861, and bonds for the purchase money executed. The commissioner removed to Texas in 1862, and remained there until 1866. Report of sale was not made until 1866. Hull purchased the land at $18 per acre, and gave bonds with A. M. Clayton as surety. F. G. Ayres bought one of the slaves, and gave bond, with Davis as surety. In January, 1867, appellants filed a bill or petition, suggesting the rendition of the decree, the sale under it, the loss of papers from the file of the suit, and asking that they might have the benefits of the decree by a confirmation of the report of sale, and an .enforcement of payment of the bonds, given by the purchasers. To this proceeding the purchasers and their sureties were made parties defendants. On final hearing the chancellor refused to confirm the report as to the lands, but directed Hull to restore possession of the land, and directed an account to be taken charging Hull with the rents of the land for the time he cultivated it, .crediting him with valuable improvements. The report was confirmed as to the sale of the slaves, except as to one sold to F. G. Ayres. From this decree an appeal is prosecuted. Hull, the purchaser of the land, and Clayton, his surety, resist the confirmation of the sale on several grounds. 1st. That the title is incomplete — there being outstanding in Joseph Ayres, who was the husband of Delia, daughter of Thomas Redus, deceased, an estate as tenant by the curtesy. 2d. On account of the lapse of time from the date of sale, before a report was made, and an application to confirm. 3d. The changed condition of the country, induced by the ravages of war, greatly reducing the pecuniary circumstances of Hull and his surety — the depreciation in the value of the lands, etc. First. Is the title imperfect, for the reason alleged ? Tenant by the curtesy, is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee simple or fee tail, and has by her issue, born — 634 — alive, capable of inheriting her estate. Black. Com., 99, 100. It is objected to this title, that Delia, daughter of Thomas Redus, deceased, and one of his heirs, and wife of Joseph Ayres, was seised of an undivided interest in the land, and that upon her death, her husband (still living), is entitled to an estate by curtesy. The seisin must be during the coverture, and by the English common law, in fact. The case is put, of a man seised in fee simple, who dies leaving a daughter, and she marry and die before any entry made by herself and husband. The husband shall not be tenant by the curtesy. And the technical reason of this was, that the wife must have actual' possession of the inheritance. And of things lying in livery, the wife hath not actual entry until the death of her husband. 3 Bacon Abr., 11, title, Curtesy. If the land be in lease for years, there may be curtesy without entry or receipt for rent. The possession of the lessee being deemed the possession of the husband and wife. The necessity of entry, originated in the rule, invariable at common law, “ that an entry must be made in order to vest a freehold.” Co. Lit., 51; and for the further- reason, perhaps, that it was incumbent on the husband to preserve, unembarrassed, the descent to the issue of the marriage. When the descent was cast, the entry of the mother, as heir, was necessary, or otherwise her issue must claim title direct from the grand-father or other person last seised. The doctrine in England and those states, which have strictly followed the mother country is, that where entry or actual possession may be made or taken, it is absolutely necessary in order to give curtesy. 6 B. Monroe, 175; Neely v. Buller, 10 B. Monroe, 48; Petty v. Mallier, 15 B. Monroe, 591. As if a woman be disseised, and then marry, husband must regain the seisin during coverture, to entitle him to curtesy. 1 Roper on Husband and Wife, 8; 1 N. J., 525. In these cases, a seisin in law, which carries with it a right of possession, is not enough to give the husband the estate by curtesy. In this state, and perhaps, now in nearly all the states, livery of seisin, with its attendant ceremonies — 635 — oí' “ breaking a twig,” or turning a “ sod,” is unknown. Freehold estates are transferred by patent, by deed, or by descent oast, without other or further ceremony. In tracing title by inheritance, as successive descents are cast, proof of entry is never deemed necessary to a recovery, or as in anywise affecting the course of descents. A fee simple owner is seised of all his lands, which are notin the actual pedis possessio of an adversary. A deed of conveyance of a freehold estate, of itself, operates to create a seisin of the land in the donee or grantee, unless in adverse possession of another. Davis v. Mason, 1 Peters, 506; Jackson v. Tellick, 8 Johns., 268. It would follow, from this, the estate by curtesy attaches, wherever there was a seisin of the wife, during coverture, with actual possession of husband and wife, or with a right of immediate entry, and such entry could be made by the voluntary act of the husband. The principle resting on the proposition that the owner of the fee, whether by descent cast, by deed patent or devise, is “ seised,” whether he has a pedis possessio or not; provided, there is not an adverse occupant and claimant, and that a formal entry, during the coverture is not necessary. Green v. Leter, 8 Cranch, 249; Clay v. White, 1 Munford, 162; Smott v. Lecatt, 1 Stewart, 590; 23 Missouri Rep., 115. The cases in our reports accord with the authorities cited, which hold that there must be a seisin in fact, or in law ; and if the latter, there must be a right of immediate entry, unobstructed by an adverse holding. Day v. Cochran, 24 Miss. R., 276; Robb v. Griffin, 26 Miss. R., 582. The case of Malone v. McLaurin and others, 40 Miss. R., 162, was, whether the surviving husband was entitled to the curtesy estate in lands devised by the father to the daughter? to take effect after the termination of a life estate in favor of testator’s widow. The wife died before the termination of the particular estate. It was held that the husband took no estate, for the reason that the wife “ never acquired any right to the actual possession and enjoyment of the estate.” The — 636 — rule, as gathered by Chancellor Kent, from the authorities,, is recognized fully, “ that if there be an outstanding estate for life, the husband cannot be tenant by the curtesy of the wife’s estate, in remainder or reversion, unless the particular estate be ended during the coverture.” 4 Kent Com., 29. If the particular estates fall in during coverture, there is a right of immediate entry, and of the pernancy of the profits and rents, which completes the title to this sort of estate, although there may not have been actual entry. A very brief recital of the facts, will show that within the purview of the principles we have stated — Joseph Ayres has no estate by purtesy, in any of the land. Thomas Redus died in 1844. His widow, the devisee for life, died in 1859. Delia, the daughter of Thomas Redus deceased, married Joseph Ayres in 1850, and died in 1856. The widow had been in the enjoyment of her life estate for fifteen years, when the marriage occurred, and survived her daughter Delia, wife of Ayres, three years or thereabouts. 2d. We proceed now to consider the other objections made to the sale, and the relief asked by the complainants. There are material differences in the mode of conducting such sales here and in England. In the Euglish practice the business is conducted by a permanent master of the court; and in all of its stages, is under the direction and control of the chancellor or his officer. As a matter of course, the biddings are opened on a sufficient advanced offer. The purchaser is required to make a deposit, which may be forfeited if he does not complete the purchase. More emphatically may it be said, that the court is the vendor than under our system. 2 Dan. Ch. Pr., 1270, et sequitur. With us the sale is more like those made.by the sheriff under executions. The most important difference being, that the commissioner must report his proceedings, and obtain the action of the court on them. If the commissioner is delinquent, any party in interest, including the purchaser, may apply to the court for confirmation. The purchaser from the moment that the property is struck off to him, is deemed a party in interest, and — 637 — submits himself to the jurisdiction of the court. According to the English practice, it is quite common for him (at his own expense and costs) to move the court for confirmation of sale, or for any other relief necessary to a full investiture of his rights as purchaser. 2 Dan. Ch. Pr. above quoted. The authorities agree that there must be a confirmation of sale made under a chancery or probate decree. Until confirmation the transaction is said to be in fieri, subject to the discretion and control of the court; not an arbitrary discretion, but established in principles defined. Confirmation is a matter of course, and a matter of right also, either at the instance of the complainants or the purchaser, unless good cause be shown against it; such as accident, surprise, mistake, or fraud, in some of the parties connected with the sale, or interested etc., in it. Inadequacy of price alone? disconnected with other circumstances, will not suffice to refuse confirmation. Mitchell v. Harris.* If the sale has been conducted openly and fairly, according to the terms of the decree, the complainants have a right to its fruits, and the purchaser a clear right also to the thing bought, and a title thereto. When the purchaser has done all that he is required to do, and the commissioner is in default, he may invoke the chancellor to adjudge the sale complete, and thereby have his title assured. Whilst the general proposition is true that the sale ought regularly to be reported to and confirmed by the court, in order to its completeness, it'is quite as well established that such confirmation is not an absolute requisite, or condition precedent to the title in the purchaser. A confirmation in pais, may be as effectual to work this result, as the judicial act of the court. If the parties in interest to the sale, have so acted in reference to it, as to regard it as an accomplished fact; a rule, that confirmation by th’e court should nevertheless be essential, would be purely technical, founded in no broad views of policy or reason. The order of confirmation amounts to a judicial ascertainment, and declaration that the com — 638 — missioner has conducted the sale agreeable to the decree, and that the purchaser, on his part has complied also. Now, if the property has been sold at public vendue, bond and surety given by the purchaser, and a deed executed, and he has gone into possession, there has been a substantial execution of the decree and a performance by vendor and vendee of the essential acts of the sale, and pro tanto recognition of it. If the purchaser has continued in possession for several years, sowing and reaping, enjoying the profits and products of the property, this, it seems to us, would be as complete a ratification in pais as could be made by him. In these circumstances, could the. complainants be heard to claim that there should be a re-sale because there had been no confirmation by the court, on the suggestion that the lands had appreciated in value ? On the other hand, could the purchaser be relieved on the showing that the property had depreciated? The question is not whether the price now be high or low, whether there has been an increase or diminution in value ? but rather was the sale fairly made in the mode prescribed by the decree. The fact that the purchaser bid off the property at the price it was sold to him, is very cogent evidence of its market value at the time, and perhaps conclusive of his estimate of its worth. He took the risk of its future fluctuations in value, and was as competent to guess and speculate as to the causes and influences that would spring up in coming years to affect values, as the complainants or the commissioner. An examination of adjudged cases will sustain these views. A formal decree of confirmation, on motion made for that purpose, is not absolutely necessary. Any action of the court in recognition of the validity of the sale is as good as a formal confirmation, as in the case of Conger v. Robinson, 4 S. & M., 221. The dismissal of a supersedeas of the execution on the purchaser’s bond was equivalent to a confirmation. Tooley v. Gridley et al., 3 S. & M., 515, was a confirmation by the parties. The sufficient thing done was the issuance of execution on the bonds. “If,” observed the court, “ the money had been col — 639 — lected and paid over, no one would contend that any further confirmation was necessary to pass the title, yet the complainant has given his assent as fully by accepting the bond and issuing execution. Confirmation by the acts of the parties is as valid as if decreed by the court. The case decided in 5 Paige, 48, the purchaser was allowed the benefit of his bid and to go on and complete the purchase, although the commissioner had reported another person as the successful bidder. We are of opinion that the parties have confirmed this sale by their acts, and that as a consequence thereof, the title of Hull is complete to the land, and that the complainants are entitled to the purchase money. The sale was made in 1860; a deed, duly executed and acknowledged by the commissioner, was put on record. Hull at once went into possession. That year he sowed wheat on the land. In 1862 he offered to pay his bonds in Confederate money and state bank notes. During the war the land was in the line of great army movements. Its fencing was destroyed, and it was unfit for cultivation. After the war the fencing was rebuilt, and the cultivation resumed, which has been continuously kept up. Since the Avar, because of his changed fortune (not alleging any objection to the title, or any inconvenience to himself on account of anything done or omitted to be done by the commissioner), Hull proposed to surrender the land and pay $1,000 to be relieved of his purchase. These acts and facts on his part make the most full recognition of the sale, and of himself as the unquestioned owner of the property, and come under the operation of the principle of confirmation in pais. Nor in this connection can we overlook the fact that shortly after this sale the country became involved in a most destructive and protracted civil war, which seriously interfered Avith, and interrupted the ordinary flow and transaction of business in and out of the courts. Marshall county, the venue of this litigation, was for a long time the theater of active military operations. The legislation of the state, too, during this period, discour — 640 — aged the enforced collection of claims by judicial means. The bonds of the purchaser were taken to Texas by the commissioner, in 1862 — perhaps as a place of greater safety. But of this we are not informed. But it is highly probable, if they had been lodged in the chancery clerk’s office of Marshall county, they would' have been lost, as were many of the papers in the cause. The acquiescence of the complainants in the sale for so long a time, and in the occupancy and use of the property by Hull, ought to be conclusive on them. Their delay to press for the money may well be referred to the disorders and distempers of the times, added to the fluctuations of a depreciated currency. The refusal to accept the proffered payment in 1862 is put by the commissioner on this latter ground.. Most of the principles we have been discussing in reference to the sale of the land, are also applicable to the sale of the slaves. The chancellor confirmed the sale of all the slaves, except as to Joe, bought by F. G. Ayres. Ayres’ bond recites the purchase under the decree, and it is insisted that this is an estoppel. The parol proof shows that Joe was knocked off at the sale, to Cook, or one Cummings, and that F. G. Ayres was not present. This being so, it is evident that Ayres was substituted as the purchaser, and made himself, by executing bond, stand in the shoes of the successful bidder, and assume all 'his responsibilities. By voluntarily assuming that position, and taking possession of the slave, he should he estopped when called upon for paymeDt, from setting up an objection of that sort. It would be to allow a premium for bad faith. The subsequent emancipation by paramount national and state authority, does not furnish a sufficient excuse for non-payment of the price. The decisions on this point are numerous in this court. Wherefore we reverse so much of the decree as refuses to confirm the sale of the land to Hull, and of the slave, Joe, to Ayres, and remand the cause to the chancery court of Marshall county, with directions to make such confirmation. On further proceedings in said court, — 641 — complainants, appellants here, will be entitled to a decree ordering a sale of tbe land purchased by Hull, and if said sale will not realize enough to pay the bonds, less the interest which lias been realized, then a personal decree for the balance against Hull and his surety. Also a like personal decree against the purchasers of the slaves, and their sureties. Footnotes [*] Supra, p. 314.