Mitchell v. Woodson

Handy, J., delivered the opinion of the court. This case is brought up by writ of error to the Chancery Court of Hinds county. It appears that a decree pro confesso was taken, upon publication, against certain of the defendants in the court below; and the first question presented is, whether the notice of publication was sufficient. The statute requires that the notice “ shall be published weekly for one month.” Hutch. Code, 828. The first publication of the notice was on the 7th April, 1854, and the last on the 5th May following, which, including both of these dates, makes but twenty-eight days. According to the rule of computation hold by this court, one of these days should be included, and the other excluded. Hall v. Cassidy, 25 Miss. 48. And this would reduce the period of publication to less than a lunar month. But the general rule, as held in modern cases, and particularly in the United States, is, that when a statute requires a month’s notice, and especially with reference to judicial proceedings, it must be taken to mean a calendar month, because it is the most beneficial to the party to be affected by it. 10 Wend. 393; 1 Bailey (S. C.), 611; 4 Mass. 460; 2 Cow. 518; 2 Const. Rep. (So. Car.) 604; 4 Bibb, 105; 5 Gratt. 285. In cases of constructive notice to non-resident parties, there appears to be good reason for giving the statute authorizing it, such a construction as will allow them the greatest time to avail themselves of the notice. This is manifestly the most just construction, as well as the one sanctioned by modern authority. We — 574 — therefore think that the statute must be taken to mean calendar, and not lunar months; and it cannot be said that the publications here were made weekly for a calendar month. Consequently, the decree pro eonfesso was irregular, and should be set aside. Again, it is objected that the decree pro eonfesso upon the amended bill, was irregular, because the order fixing the day on which the non-resident defendants should appear, was made on the 20th October, 1856, fixing the first Monday of December following as the day of appearance, thereby allowing less than two- months for the appearance after the date of the order. This was insufficient under the Statute of 1856, Rev. Code, 545, art. 84, which requires the time for appearance to be not less than two, nor more than six months; but it was sufficient, if it was governed by the pre-existing law in relation to the Superior Court of Chancery; and the question is, whether the Act of 1856 is applicable to suits pending in the Superior Court of Chancery, as this was at the time the order in question was made. We think that it is not. That act, in its terms, purports to be applicable to the chancery courts, under the system thereby established, and to regulate the practice and proceedings therein, after the jurisdiction of the Superior Court of Chancery should be superseded, or that court become extinct. The mode of proceeding in that court in this matter is not expressly abrogated; and there is not such a necessary repugnance between the two modes of proceeding as to work a repeal of the pre-existing rule in relation to the Superior Court'of Chancery by construction; for the latter statute does not in terms apply to the Superior Court of Chancery. On the contrary, the language of the article referred to, appears to have special reference to the chancery courts of the counties; for it speaks of the order being made by the “judge;” which is inapplicable to the chancellor. This objection is, therefore, not tenable. But the notice and publication upon the amended bill is liable to the same objection as that upon the original bill, as that publication commenced on the 29th October, 1856, and ended on the 26th November following-, so that the decree pro eonfesso on that bill was also irregular, and should be set aside. The next question is, whether the defence of the Statute of Limitations is a bar to the bill. — 575 — It appears by the allegations of the bill, that Hugh Mitchell, being surety on a promissory note made by Stockton & Wagly, and in order to indemnify him therefor, the lot in controversy was conveyed to him by deed of quitclaim, dated 7th March, 1840, with the right to Woodson, who was in partnership in the mercantile business with Stockton & Wagly and another, to redeem the property from Mitchell, by paying the debt; and, on the same day, that Mitchell bound himself in writing to convey the premises to Woodson by deed of quitclaim, when Woodson should release him from the promissory note on which he was surety, provided Wood-son should do so in a reasonable time ; that afterwards the lot was, by the procurement of Woodson, Wagly & Stockton, sold under a judgment against them, and bid off by Mitchell, who paid no money thereupon, but it was conveyed to him by the sheriff by deed, dated 17th May, 1841, and on the 18 th May, 1841, he bound himself by another instrument of writing to convey to Woodson his right and interest in the premises by quitclaim deed, when he should be requested, and after ho should be discharged from all liability as surety on the note. The bill shows that Woodson died in December, 1843, or January, 1844, and it is filed by his heirs, and alleges that he paid the note in his lifetime, and discharged Mitchell from liability upon it. The representatives of Mitchell and those claiming ■under him are made defendants. The answer, among other things, denies that either Woodson or his partners had any title to the lot, either legal or equitable, and alleges that Mitchell and those holding under him have had possession claiming title since the execution of the deeds mentioned in the bill, and this possession and claim are pleaded in bar ; it admits that the first deed was procured by the instrumentality of Woodson to be executed to Mitchell, and to indemnify him for the note; it alleged that the title to the lot was in one Love, who conveyed it by deed, which is exhibited, dated 30th January, 1840, to one Hunnells, as whose property it was sold and conveyed by the sheriff’s deed, which is exhibited, dated 11th December, 1844, to one Grant, who conveyed it by deed exhibited, dated 22d- October, 1845, to Mitchell for a valuable consideration, under which Mitchell and those claiming under him have held possession from the date of that purchase, and this is pleaded as a bar to the bill. — 576 — Several objections are urged in behalf of the defendants in error against the defence of the Statute of Limitations. First. It is objected, that the statute is not sufficiently pleaded, because the answer setting up the defence does not specially rely on the statute as a bar, and because it does not state what particular statute is relied on. The first section of the Act of 1844, Hutch. Code, 829, provides, that all possessory and other actions for lands shall be commenced within seven years next after the right or title thereto, or cause of action, shall accrue. This statute has been held not to be, in terms, applicable to suits in chancery, but that courts of equity would adopt the spirit and substance of the limitation in analogous cases in that court, and apply the principle of the statute, and the limitation thereby created, to such cases. Mandeville v. Lane, 28 Miss. 817; Goff v. Robins, 33 Miss. 153. Hence, it is not necessary to set up the statute in a formal and technical manner in a suit in chancery. * It is sufficient if the substantial matter, which the statute makes a bar to the claim, be set forth and relied on as a defence. Here the answer in substance alleges that Mitchell and his tenants have been in possession of the premises, claiming title, since the execution of the two deeds mentioned in the bill, the latter of which is dated 17th of May, 1841. From that time the answer claims title by adverse possession, a period of about, thirteen years before the filing of the bill. This was sufficiently certain to apprise the complainants of the ground of defence, which was that of adverse possession for a period prescribed by law for barring the claim. The defence of adverse possession, under the deed to Mitchell of 22d of October, 1845, is set up in the answer in the same manner, and for the same reason is sufficient. Secondly. It is objected, that the defence of adverse possession is not available to Mitchell, his tenants, and agents, under the circumstances apparent from the pleadings and proofs in the case; and several grounds are taken in support of this position. 1st. It is said that Mitchell stood in the relation of trustee to Woodson, which precludes him from relying on the Statute of Limitations, as a bar to the performance of his obligation to convey the premises, upon being discharged from his liability as surety on the — 577 — note, and also from acquiring an interest in the premises in opposition to the rights of his cestui que trust. We do not think that Mitchell stood in the position of a trustee in the matter, in a just legal sense, either as a direct trustee, or one by implication. He took the deeds, it is true, to indemnify himself against his liability on the note. But his obligation to convey the premises to Woodson consisted entirely in the positive contracts in writing which he made, binding himself to do so. If, apart from his written obligations, there was any trust raised by the fact' of his taking the deeds for the purpose of indemnity, to be executed by conveyance after he should be discharged from the note, it was for the benefit of Stockton and Wagly, or of Woodson, Creel, Stockton, and Wagly, at whose instance and for whose use the deeds were executed to Mitchell. But instead of this, an express obligation was taken from Mitchell, binding him to convey the premises to Woodson, his heirs and assigns. The whole obligation' to convey, therefore, consists in the contract made between the parties, and which this bill, in effect, seeks to have specifically performed. Such being the attitude of the parties, the rule preventing a trustee from acquiring and setting up an individual interest in the subject-matter of the trust, in derogation of the rights of his cestui que trust, does not apply. 2d. It is insisted, that Mitchell was bound by his contract of 18th of May, 1841, to convey to Woodson, whenever requested, and that this prevented the running of the statute until request made, which was not done until this bill was filed. There is force in this position ; and if the case stood alone upon the defence of the Statute of Limitations set up to the contract of May, 1846, or upon the adverse possession held under the deeds of March, 1840, and May, 1841, it would appear to be a good answer to the defence. But in addition to these grounds of defence, the answer set up an adverse possession under a deed executed to Mitchell, by one Grant, on the 22d of October, 1845, conveying a title apparently paramount to that conveyed by the deeds to Mitchell, of March, 1840, and May, 1841, being deraigned from a deed from Franklin Love to Bunnells, dated 80th of January, 1840. This deed to Mitchell would be at least sufficient color of title upon which to found the defence of adverse possession ; and this is set — 578 — up as a distinct ground of defence to tbe bill, showing an adverse possession under an independent title for more than eight years before the filing of the bill. And this was a good defence to the bill, unless Mitchell was incapable, by reason of the contracts he had made to convey the premises to Woodson, of acquiring a title in opposition to the interest which he had bound himself to convey. Note 1. A week is a definite period of time, commencing on Sunday and ending on Saturday: and where a statute requires notice to be published weekly for a specified time, it is not necessary that the publication should be made on every seventh day; it is sufficient if a publication be made in each week computed as above from Sunday to Saturday. Rokendorff v. Taylor's Lessee, 4 Peters R. 349. It is well settled that if a party covenant to convey with warranty of title, he is incapable of acquiring an interest in the premises in derogation of the rights of his covenantee, and' that any title subsequently acquired by him will inure to the use of the covenantee; because he is estopped by his covenants, which run with the land, from setting up any claim against the title thereby assured. Bush v. Cooper, 26 Miss. 599; Jackson v. Wright, 14 John Rep. 193; Bank of Utica v. Mersereau, 3 Barb. Chan. Rep. 568; Jackson v. Hubbell, 1 Cowen, 613. But in this case, Mitchell had covenanted to convey by quitclaim, deed such title as he had acquired and then held under the deeds to him of March, 1840, and May, 1841. It being a contract merely to do a specific thing, he was not bound beyond its terms; and as he was not bound by any covenant of warranty to defend or perfect the title of Woodson, he had the right to acquire for himself an independent title; for that would not disable him to perform his contract to Woodson, which was to release to him the title which he had previously acquired. This doctrine is well sustained by authority of the cases last cited, and Jackson v. Winslow, 9 Cowen, 18; Nixon v. Carco, 28 Miss. 414-426; 11 Wend. 119. We are of opinion, therefore, that the defence of adverse possession and claim under the deed from Grant was a bar to the bill, and that under it the bill should have been dismissed. And as this defence is applicable to the defendants who have answered, as well as those against whom decrees pro confesso were taken, there is no good reason for remanding the cause for further proceedings as to the latter defendants. The decree is therefore reversed, and the bill dismissed. Note 2. The foregoing rule in relation to the right of the vendor in a quitclaim deed to purchase in a paramount title, in opposition to his vendee, is changed by the Rev. Code, 309, Art. 17.