Wade v. Barlow

McLain, C. This is an appeal from the circuit court of the second judicial district of Jones county. By agreement, the [38] case was tried before the circuit judge; a jury being-waived. The facts of this case are briefly these: In 1908, W. J. Wade and his wife, D. J. Wade, for the consideration of one hundred and fifty dollars, executed and delivered a deed to a certain forty-acre tract of land to Mrs. O. Y. Barlow. She and her husband, Henry H. Barlow, went into possesion of the land under this deed. In 19091, for the same consideration, appellants executed a warranty deed to the same land to Mrs. Barlow, reciting in the body of the deed that “this deed is given for the purpose of correcting a former deed given by W. J. Wade and wife.” Just what is meant by the expression, “this deed is given for the purpose of correcting a former deed given by W. J. Wade and wife,” is not absolutely clear from the record; but from this record it reasonably appears there was some rumor that the land in question was public land,-but evidently appellants did not think so, as W. J. Wade testified that he and wife desired to make good the first deed, and in order to do so executed the second deed to Mrs. Barlow, containing a covenant of warranty. After the execution of the last deed, Henry H. Barlow, husband of Mrs. 0. V. Barlow (appellee), discovered that it was public land, and he made homestead application for this land, and received his receipt from the United States government on the 24th day of January, 19GL01. The record upon the whole shows that the government had never parted with its title. Mrs. O. Y. Barlow, being convinced that the title to the land was in the United States government, instituted suit against appellants on a breach of warranty, and recovered judgment for the purchase price, one hundred and fifty dollars, with ten per cent, damages. The record shows that, while the second deed recited a consideration of one hundred and fifty dollars, yet as a matter of fact nothing was paid. ' The consideration of one hundred and fifty dollars was paid in 1903, when the first [39] deed was executed. More than six years having elapsed since the execution of the first deed up to the time of thé institution of this suit, it is contended that this action is barred by the statute of limitations. We think this last deed is a new promise of warranty, based upon a former valid consideration. The former legal obligation is a sufficient consideration to uphold a new promise based thereon. Section 3115, Code 1906. We think the court below committed error in giving judgment for the entire purchase price. The measure of. damages, under the facts of this case, should be confined to the repayment of the money that the husband of Mrs. Barlow has expended and will necessarily have to expend in getting the title from the government. In other words, she cannot recover anything except the money which her husband, Henry H. Barlow, has been, and will be forced to expend for the protection of his possession and the perfection of his title, and such other damages as may have been caused by the breach of warranty. Full compensation for the breach is the extent of the recovery authorized. This is the universal rule, which is not varied by the fact that the land to which the title failed belonged to the United States government. Galloway v. Finley et al., 12 Pet. 264, 9 L. Ed. 1079; Holloway v. Miller, 84 Miss. 781, 36 South. 531. But it may be said that Henry H. Barlow, her husband, and not" Mrs. Barlow, his wife, secured the title from the government,- that the breach of warranty was upon a deed executed to Mrs. Barlow, and that her husband, Henry H. Barlow, was in no way connected with this deed; and that the husband and wife are separate in property, and may as a rule invest their money or make contracts independent of each other. All this is true. But there is another principle of law, founded upon public policy, that will be invoked in certain transactions to which husband and wife are parties. To explain this, we will begin by stating a rule as’ laid' d.own [40] by this court in the case of Hardeman et al. v. Cowan, 10 Smede & M. 501: “It is a well established general rule that, where the purchaser has been put in possession, he cannot afterwards acquire a title and set it up in opposition to the vendor. If he extinguish an incumbrance, or buy in an outstanding title, all he can ask or require is the payment of the money he has so laid out. This reason is equally operative, whether the purchase of the incumbrance be by the vendee or his wife. There is such an identity between them that what under such circumstances cannot be done by the husband cannot be done by the wife. The privity of estate between the vendor and the vendee is what prevents the purchase. The wife in some degree partakes of this relation. To permit her to purchase, when the husband is forbidden, would be a mere evasion of the rule.” In the case of Robinson v. Lewis, 68 Miss. 71, 8 South. 259, 10 L. R. A. 101, 24 Am. St. Rep. 254, the court said, speaking through Judge Cooper: “If the rule which prevents one spouse from securing a title where the other is disqualified rested only upon a supposed privity of estate between them, it might well be argued that our statutes upon the subject have, destroyed its foundation. But the rule is founded upon considerations of public policy, and conclusively imputes to the one, as derived from the other, knowledge of those facts the existence of which precludes the other from action. The opportunities that would be afforded for fraudulent practices would be so numerous, and the difficulty of exposing them so great, that courts apply the doctrine of estoppel to both, and thus close the door that offers the temptation.” The principle-here announced was again reaffirmed in the case of Hamblet v. Harrison, 80 Miss. 124, 31 South. 580, and also in Beamam v. Beaman, 90 Miss. 762, 44 South. 987. The facts in the above cited cases are somewhat different from the facts in the one under consideration, yet in our opinion the same principle is [41] involved.' Under the facts of this case, we think Mrs. Barlow, the appellee, is estopped by her conduct and that of her husband from claiming the entire purchase price , of this land. As we have already announced, her measure of damages under the facts of this cas'e, should be confined to the repayment of the money that her husband, Henry H. Barlow, has expended and will necessarily have to expend in getting the title from the United States government. Manifestly, if she had secured the title from the United States government, instead of her husband, this is all she could have recovered on her suit for breach of warranty; and the fact that her husband obtained it gives her no greater claim for damages, when considered in' the light of the principles of the law above stated. “To allow her to recover more would be to work a fraud under the guise of law, and this cannot be countenanced. ’ ’ Holloway v. Miller, 84 Miss. 781, 36 South. 533. Reversed and remanded. Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated by the commissioner, the case is reversed and remanded.