D. Rosenbaum Sons v. Blackwell

Stevens, J., delivered the opinion of the court. This action was instituted by appellee as complainant in the court below. Appellee seeks to cancel a commissioner’s deed executed by a special commissioner of the chancery court to appellants in pursuance of a decree granted appellants in a ease foreclosing a certain deed of trust held by them against I. W. P. Mitchem and wife, father and mother of appellee. The Mitchems executed á trust deed to appellants on forty acres of land in Lauderdale county, claimed and herein sued for by appellee. On foreclosure of this trust deed in chancery, appellants bought in the land. Appellee was not a party to the foreclosure suit, and now questions the title of appellants. The point" relied upon by appellants is the averment and contention that appellee is estopped to deny the validity of appellants’ trust deed and their title claimed there [460] under. At the time this trust deed was executed, appellee was the owner of the land in question, and she, her father, and her mother were living together on this land and in the same house. It is contended she knew the trust deed was being given by Mitcham and made no objection. The record shows that some four years prior to the execution of the trust deed, appellee had signed and» acknowledged a deed conveying this land to her father and mother. But appellee contends: First that this deed was never delivered ; and, secondly, even though delivered, the deed was void because of the non-joinder of the husband. The chancellor held that the, deed had been delivered, but was void because the land at that time was the exempt homestead of Mr. .and Mrs. Blackwell, and the husband did not join in the conveyance. It is practically conceded by appellants that this holding of the chancellor was unquestionably correct. At the time the trust deed was executed, however, the land no longer constituted the exempt homestead of appellee. The testimony of Mose Rosenbaum, a member of appellants ’ firm, is conclusive against appellants on the question of estoppel. It is shown that there were no conveyances of record reflecting the ownership of this land; that appellants admit they madé no effort to find out in whom the title stood; that Mr. Mitcham represented that it was his land, and they relied upon his statement; that they did not examine the records of the county or make any other investigation to ascertain who the real owner was; that Mrs. Blackwell was not present when-the trade with Mitcham was made; that appellants had no knowledge of the void deed executed to Mr. and Mrs. Mitcham; and that appellants had no dealings with appellee whatever. They, therefore, in no wise relied upon anything that appellee did or failed to do. Our court has uniformly drawn a distinction between mere silence and active encouragement. So far as appellants knew, Mr. Mitcham had not been invested by appellee with, any indicia of ownership. Appellee did not request Mr. [461] Mitcham to buy the mules. For all the evidence reflects, Mitcham would have traded with and given appellants the trust deed, regardless of the wishes or even existence of appellee. . 'Affirmed.