Cantzon's Lessee v. Dorr

Mr. Justice Handy delivered the opinion of the court. This was an action of ejectment brought by the plaintiff in error against the defendant, for certain lots or parcels of land situate in the city of Jackson. The declaration contains two counts, one on the demise of Cantzon, and the other on the demise of one Orin D. Battle; and on the trial below, the following evidence was offered in behalf of the plaintiff: a certificate signed by Samuel M. Puckett, State commissioner, dated 3d December, 1833, that O. D. Battle had on that day purchased the lots in controversy, and executed his notes for the purchase-money according to law; also an assignment of that certificate written upon it by Battle to Robert Hughes, dated -day of-, 1838, containing a request that the patent should issue to Hughes; also a judgment rendered in Rankin circuit court in favor of William Royall v. Robert Hughes, on the 16th December, 1840, the execution and forthcoming bond [250] thereon, which was forfeited 18th January, 1841, the execution on bond levied on the lots in controversy, on the 20th May, 1842, the writ of venditioni exponas under which the lots were sold to the plaintiff’s lessor on the 3d June, 1844, and the sheriff’s deed to him dated 5th January, 1846. He also proved the possession of the defendant when the suit was instituted, and the possession of Hughes, in 1841 and 1842; and read in evidence a deed made to the defendant by the marshal for the same lots, dated 17th March, 1846, which were thereby sold under execution against Hughes, in order to show that both plaintiff and defendant claimed title under Hughes. ■ The defendant then- showed a judgment in the circuit court of the United States for the southern district of Mississippi, against Nobert Hughes, rendered in May, 1840, and executions thereon, and a forthcoming bond forfeited 24th April, 1841; also sundry executions which were stayed, and an execution issued in December, 1845, under which the marshal sold the lots on the 26th January, 1846, to defendant; also a patent granted by the secretary of State of this State to Nobert Hughes for the lots,, dated 25th November, 1839; and, in order to prove an outstanding title at the time of the purchase of the lessor of the plaintiff, he offered in evidence a mortgage made by Hughes to Gillespie & Jones, dated 3d May, 1841, and recorded 4th February, 1842, conveying the lots in controversy to secure a debt of $13,270. Under the instructions of the court, the verdict was for the defendant, and hence the case is brought here by writ of error. The determination of the propriety of the judgment below, turns mainly upon the question whether the evidence showed such legal title in Cantzon, the lessor of the plaintiff, as is necessary to maintain the action of ejectment. In the attitude in which the case is presented, we do not think that the plaintiff is entitled to recover on the count upon the demise of Battle. It is true that the certificate of purchase granted to him by the State commissioner, is made evidence of title by the act of 1833. Hutch. Dig. 104, art. 9. But it cannot be used for such purpose in behalf of the plaintiff here, for the following reasons: 1st, he has shown, as a part of the evi [251] dence of his own title, that the certificate had been transferred by Battle to Hughes, and that Hughes went into possession of the premises. The assignment entitled Hughes to the certificate, and consequently deprived Battle of the right to use it as evidence of title against Hughes, as he would have been entitled to do without the transfer of it under the statute. This, together with the delivery of possession to Hughes, estopped Battle from claiming title under the certificate against Hughes. 2d, the plaintiff based his right to recover upon the title of Hughes. He offered evidence óf the title under which the defendant claimed, in order to show that both the plaintiff and defendant claimed title from Hughes. Such evidence would have been incompetent for any other purpose; and after having put his right to recover upon Hughes’ title; he will not be permitted to shift his ground, assert that Hughes had no title, and set up a different title. From the whole course of proceeding on the trial, it is manifest that the case was tried in reference to the title of Hughes, both parties claiming his title. It was so treated by the parties, and so decided in the court below, and must be so considered here. Under the evidence, then, Was the plaintiff entitled to recover on the title of Hughes in the first count in the declaration? He claims as a purchaser at sheriff’s sale under a judgment rendered in Rankin county, not the county of Hughes’ residence, on forthcoming bond forfeited in January, 1841. No abstract of this judgment was filed in Hinds county, where the lots are situate, and no execution under it was levied upon the lots until the 20th May, 1842. In the mean time, and on the 4th February, 1842, the mortgage of Gillespie & Jones upon the lots was registered in Hinds county, and, for aught that appeared in the evidence, was outstanding and unsatisfied at the time of the plaintiff’s purchase at sheriff’s sale; and, of eourse, the mortgage was a superior lien to the judgment. It has been held again and again by this court, that the equity of redemption of a mortgagor is not the subject of sale under execution at law. Thornhill v. Gilmer, 4 S. & M. 153; Baldwin v. Jenkins, 23 Miss. 206; Wolfe v. Dowell’s Lessee, 13 S. & M. 103; Boarman v. Catlett, Ib. 149; Henry v. Fullerton, Ib. 731. And it [252] follows that the plaintiff did not acquire the legal title by his purchase; and, upon the evidence as presented, this was an insuperable obstacle to his right to recover. It is immaterial whether the plaintiff or the defendant had the better right, the one as against the other. Both were liable to this objection, and as the plaintiff was the party seeking to enforce his right, it is sufficient to say, that he has not shown a right to maintain the action. Though the instructions given by the court at the instance of the defendant may be wrong, it is manifest from this view of the case, that the plaintiff was not entitled to recover, and the result was correct. The judgment is, therefore, affirmed.