Mississippi Sawmill Co. v. Douglas

Cook, J., delivered the opinion of the court. Briefly stated, the bill of complaint filed in this case alleges that Mrs. Buckley, one of the deefndants, on May 5> 1899, being the owner of a ninety-nine year lease of certain sixteenth section lands situated in Lawrence county, executed a warrnaty deed by which she conveyed to Henry Myer ‘ ‘ all timber and timber-like trees ’ ’ grow — 685 — ing on said land, and that, by regular mesne conveyances complainant succeeded to the rights and privileges first conveyed to Henry Myer. It is further stated in the bill that in 1910 Mrs. Buckley executed and delivered to her brother, R. J. Douglas, the other defendant, a deed of conveyance of her leasehold interest in the said sixteenth section lands, for the purpose of vesting the title in her brother; that this deed to her brother was without consideration, and was made in furtherance of an agreement between Mrs. Buckley and her brother that the brother would purchase from the board of supervisors all the merchantable timber growing on said land for the joint account of herself and her brother. It is alleged that R. J. Douglas did secure from the board of supervisors a deed to the merchantable timber growing on said lands.' The bill also alleges that complainant with the knowledge of Mrs. Buckley and her brother at the time she made the deed to her brother, had already agreed with the attorney of the board, of supervisors upon a contract to purchase the merchantable timber on said lands, and that the conveyance of the leasehold interest to Douglas and the purchase of the timber by him was all for the fraudulent purpose of preventing complainant from buying the timber from the board of supervisors, which Mrs. Buckley had conveyed to complainant’s predecessor in title. The bill prays that the deed from the board of supervisors to R. J. Douglas be canceled, and that the title to the timber on said lands be vested in complainant, or that the court, by its decree, compel Douglas to convey the timber to complainant upon payment by complainant to him of the amount paid to the board of supervisors for a deed to the timber. A demurrer was interposed, mainly upon the ground, that there was no equity on the face of the bill. The demurrer was sustained, and appeal granted to settle the principles of law involved in the case. It is the contention of appellant that the title to the timber which Mrs. Buckley attempted to convey to com — 686 — plainant’s predecessor in title should be treated as having vested in Mrs. Buckley when she entered into the above-mentioned agreement with her brother and when her brother obtained title to same from the board of supervisors. In other words, when Mrs. Buckley, by indirection, secured the legal title to the timber she had conveyed, her title thus secured inured to the benefit of her grantee, and equity would vest the title in complainant. It is insisted by appellees that Mrs. Buckley did not own the timber growing on the land -when she executed her warranty deed to same, could not obtain title to same, and her deed to same was void ah initio. We will reverse the order, and first consider appellees’ contention in support of the demurrer. First, it is insisted that the arrangement alleged to have been made by complainant with the attorney of the board of supervisors, whereby the board was to sell the timber to complainant, was merely a tentative agreement between attorneys, and had no binding force upon the board of supervisors. This position is undoubtedly sound. The board of supervisors cannot be bound by agreements of this character, even if made by the individual members of the board, because the board can only bind itself by an order entered upon its minutes at a legal session of the board. However, we do not understand that complainant takes a contrary view of this question. As we understand the allegations of the bill of complaint, the averment concerning this agreement is made solely for the purpose of showing that Mrs. Buckley and her brother knew that complainant was taking steps to secure the legal title to the timber Mrs. Buckley had attempted to convey, and that they forestalled this effort by “beating complainant to it.” It is claimed by complainant that this action by Mrs. Buckley and her brother will not be tolerated by a court of good conscience, and we do not understand it to be insisted that any legal or binding contract had been made with the board of supervisors. — 687 — Next, it is said by appellees that Mrs. Buckley made the warranty deed to Henry Myer in perfect good faith, but under an erroneous conception of the law, that she could lawfully convey the merchantable timber on the lands, and because of this erroneous conception of the law Mrs. Buckley’s deed was absolutely void, and she is not now under any legal, or equitable obligations to her grantees who had parted with their money under the same misconception of the law. This is not a suit upon a breach of warranty, but a bill in equity based upon a warranty of title which the warrantor did not possess at the time the conveyance was executed, but which title the warrantor had secured before the filing of the bill. Mrs. Buckley in good faith attempted to convey the timber to Henry Myer, and Henry Myer and his successors in good faith paid for what they believed was a title to the timber. It was subsequently learned that the original warrantor, Mrs. Buckley, did not own the timber conveyed, and it is alleged in the bill that she combined with her brother to secure the title, but instead of conveying same to complainant as she was in good conscience bound to do, she attempts to put the title in her brother in order that complainant may be prevented from getting what it had paid for and what she had guaranteed to its predecessor in title. Appellees rely on Naval Stores Co. v. Tootle, 96 Miss. 486, 51 So. 801, and Southern Plantations Co. v. Kennedy Heading Co., 61 So. 166, to support their contention that Mrs. Buckley’s warranty was a nullity and that she incurred no obligation thereby. In Naval Stores Go. v. Tootle, supra, the court uses this language: “The sale of this timber by Tootle was a nullity, and there was a breach of the warranty made by bim at the very instant it was made.” Nevertheless, the court held that he was liable for breach of warranty. The fact that his deed was a nullity — 688 — did not absolve Mm from mailing Ms warranty good. That case was a suit for damages for a breach of warranty, and the court used the language quoted in answer to the contention that plaintiff had not been evicted. It was held that plaintiff did not have to wait for an eviction from public lands in order to entitle him to damages for breach of warranty. This point alone was the subject of decision, and we do not think there is anything in that case in any way touching the questions presented by the record in the present case. The case of Southern Plantations Co. v. Kennedy Heading Co., supra, does not offer any comfort to appel-lees, and if it has any bearing upon the questions presented by the record now before the court, it may be construed against appellees’ general views of the law of the present case, especially the observations of the court upon the third point made by appellant. We believe that the fact that we are dealing with sixteenth section lands and the timber growing thereon has but little significance in the proper solution of the principles of law here involved. It is true that Mrs. Buckley’s deed to Myer, in so far as it undertook to convey the timber growing on the lands other than the pine timber, was ineffectual to accomplish its intention, but it does not follow that she could subsequently acquire the right to sell all the timber and set up her after-acquired title to defeat her warranty. By chapter 41, Laws 1898, boards of supervisors in counties having control of sixteenth section lands were authorized to sell merchantable pine timber growing thereon, and Mrs. Buckley, when she executed the deed to Henry Myer, could have bought from the board of supervisors that class of timber. By chapter 124, Laws 1904, the power of the board of supervisors to sell timber on sixteenth sections was broadened by empowering the boards to “sell the merchantable timber of any and all varieties.” By these two acts and by the provisions of the Code of 1906 Mrs. Buckley — 689 — is alleged to have acquired all the merchantable timber on the lands in question by using her brother as a receptacle of the title. The simple question is, Will a court of equity, looking through forms, decree that the title to the timber thus obtained to the benefit of complainant, and to this end further decree that'the legal title shall be placed where it belongs? As before, stated, the bill alleges that Mrs. Buckley conveyed the timber in good faith, believing that she had a right to do so, and appellant accepted the deed and paid the price under the same belief. It seems .to us that good faith and good conscience require that a court of equity grant the relief sought by the bill. There is no conceivable reason why Mrs. Buckley should not be required to carry out her contract to vest complainant with a perfect title to the property for which she received the agreed price, whenever it became possible for her to do so. This appears to be common honesty; and, while it is true, complainant might sue for breach of warranty, we are unable to agree to the proposition that that is the full measure of his rights. When the war-rantor acquires an outstanding paramount title, it cannot be used to defeat the title of the warrantee, but will inure to the benefit of the warrantee. This is a familiar principle of law and needs no citation of authorities. Our books are full of cases announcing the rule of law, but we will cite but one, a case dealing with the purchase of an outstanding title in the government. In Wade v. Barlow, 99 Miss. 33, 54 So. 662, it was held to be a well-established general rule that where the purchaser has been put in possession, he cannot afterwards acquire an outstanding title in the United States and set it up in apposition to the vendor. In that case the title conveyed was in the United States, and of course the vendor could not have made a valid deed — the deed was a nullity, and no title passed, and yet the vendee was not permitted to set up a title obtained from the government — 690 — to defeat a suit for breach, of warranty — and it was held tliat nothing could be recovered by way of offset, except the actual money paid for the paramount title. Turning this rule about, we can see no reason why Mrs. Buckley could acquire the paramount title and set it up- to defeat her own contract, and continue to enjoy the benefits of the paramount title. When Douglas is paid the amount it took to buy the paramount title, she and her codefend-ant should be compelled to. convey the title to her war-rantee. Reversed and remanded.