Green v. Irving.

title by the true owner will not ordinarily amount to a sufficient assertion against a vendee holding under a defective title, to justify an abandonment and suit by him on his covenants; but as between

ate persons we would qualify this doctrine by the remark, that *i is the immediate grantor in the defective conveyance who has made a subsequent valid conveyance, his vendee under the first deed might abandon and bring suit; and in such case the covenantor would not be allowed to say that there had been no hostile assertion of the true title, because his act would amount to a disaffirmance and annulment of the only title the vendee had. Thus, in the case at bar, if Green had made to Irving an invalid deed, and subsequently had conveyed by proper deed to another, Irving could maintain his suit. Can he do so because Green's vendor has made such conveyance? If Green's vendor were a private person he could not, because such a transaction would be as to him res inter alios acta, and could not give him any new rights against Green. But in this case Green's vendor, who had first made an invalid patent to him, and subsequently a valid one in disaffirmance of the first, was the State of Mississippi. Does this change the result? Upon mature reflection, we think that it does. Our conclusion is, that wherever the paramount title to land resides in the State, a sale by the State amounts to a hostile assertion of that title against all the world; and that persons in possession under defective titles may at once abandon as upon eviction, and institute suits against their covenantors, even where their own titles are not derived from the State.

Several considerations lead to this conclusion. A sale by the State must be regarded as a hostile assertion against all in possession of its lands, because ordinarily it is the only way in which the State can make it. Its impersonal character renders it impossible for the State to make demand of possession, nor could it be surrendered to it save by leaving the land unoccupied. It has no officer whose duty or right it would be to make such demand or receive possession. If the State can bring an action of ejectment, it would be impossible to execute in its behalf a writ of habere facias possessionem. In making a sale, the State declares in the most authentic and public manner that it claims title, and by the act conveys it to a person other than the one in possession. It is not perceived how else the State could assert its title, except by an act of the legislature; and it could not be expected that there should be a legislative act for every separate parcel of State land

Green v. Irving.

When by patent the

citizens; and all of

wrongfully occupied by a private individual. State conveys title, the act is that of all its them, therefore, must be supposed to be aware of it, so far as their rights can be affected thereby. A vendee in possession under an invalid deed may abandon whenever the true owner has said to him, "You are on my land, and I want it." The State must be considered as having said this whenever it makes a sale. It claims the land by making out the patent. It declares that it wants it when it receives the money for it; because ordinarily the State has no use for land except to sell it, and can use it in no other way.

These views have special force as applicable to the lands in question. They were a portion of the donation made to the State by the general government for internal improvement purposes. By the terms of the grant from Congress, the State could use them in no other way than by selling them, and devoting the proceeds to the purposes indicated in the act. In a peculiar sense, the State held them for sale, aud for no other purpose. A valid assignment of its title to a purchaser was, therefore, if not the only method, certainly the most natural and appropriate one by which it could assert its title; and of this assertion every occupant of the land must be deemed to have had notice. The point is expressly so ruled in McGary v. IIastings, 39 Cal. 360, 368; s. c., 2 Am. Rep. 456; in which it is said that the mere passage of a law making public land liable to entry was such assertion of the title of the government as authorized an abandonment by a vendee under an invalid title. So, also, in Schulenberg v. Harriman, 21 Wall. 44, 63, 64, it was declared that a sale of land by the government, or even an offer of sale by act of the legislature, would amount to such assertion of the title as would defeat a previous grant on condition subsequent, where the condition had been broken, upon the ground that it was equivalent to actual entry by the government. This, in effect, makes a sale by the State an entry by it, which, of course, is an assertion of the title against whomsoever is in possession.

[Omitting a minor consideration.]

Judgment of reversal heretofore entered vacated and judgment affirmed.

CAMPBELL, J., dissented, adhering to the opinion first delivered.

A married woman exchanged lands and received a perfect deed, but gave one the certificate of acknowledgment to which was fatally defective; discover. ing the defect nine years thereafter, she undertook to assert her title. Meantime she had sold the lands received, and with the proceeds purchased others; and her grantee had sold part of the lands deeded by her, with warranty, and made valuable improvements on the rest. Held, that she was estopped. (See note, p. 374.)

ILL to quiet title. The bill, by Thomas Simmons against Nancy

J. Shivers and her husband, alleged that, by agreement he conveyed to her a tract of his land for $1,000, and she conveyed to him a tract of hers for the same sum, on Dec. 16, 1867; that the acknowledgment of her conveyance failed to show a separate examination of her; that this defect was discovered in October, 1876; that in the meantime Mrs. Shivers had conveyed away the lands received by her. and with the proceeds purchased others, which she then owned; that complainant applied to Mrs. Shivers, who, with her husband, promised to rectify the defect; but that now they pretend that she never signed or acknowledged the deed, and refusing to correct it, threaten to sue for the land, which, with her knowledge, the complainant has partly conveyed by warranty deeds, and on the remainder of which he has made valuable improvements. Prayer that Mrs. Shivers be decreed to hold the legal title as trustee for the complainant, and be perpetually enjoined from asserting it against him. Defendants

demurred to the bill, the demurrer was overruled, and thev appealed.

Harris & George, for appellants. 1. The deed of Mrs. Shivers without proper acknowledgment is void. Willis v. Gattman, 53 Miss. 721. 2. A married woman cannot be estopped, so as to have the effect of a conveyance of her property. She can only convey in the mode prescribed by the statute. Palmer v. Cross, 1 S. & M. 48.

L. O. Bridewell, for appellee.

Shivers v. Simmons.

CAMPBELL, J. Upon the facts stated in his bill, the complainant is, in the view of a Court of Chancery, the real owner of the land, and Nancy J. Shivers should be estopped from ever asserting title against him. Her conveyance without proper acknowledgment did not divest her legal title, but she received its price in the conveyance of land by the complainant to her, and she has conveyed that land so as to place it beyond the reach of a decree for rescission; and this precludes her from claiming the land bargained to the complainant. To allow her now to repudiate the act by which she obtained the land of the complainant would be to sanction a gross fraud. Handy v. Noonan, 51 Miss. 166.

Mrs. Shivers has not made any movement against the land the complainant obtained from her, but she pretends to have some right or title thereto, which casts doubt or suspicion on the complainant's title; and, under § 975 of the Code, he is entitled to bring her into the Chancery. Court to have such doubt or suspicion removed.

Decree affirmed, with leave to answer within sixty days. CHALMERS, J., delivered the following opinion on the petition for reargument:

It is suggested by counsel that our decision virtually works a repeal of the statutes regulating the conveyance by married women of their real estate. A private examination and acknowledgment by a married woman is not more essential to a conveyance of her real estate, than is the signature of a man to an instrument purporting to convey his; and can there be any doubt that if a man who had attempted to exchange his lands with another, but who, from an unnoticed oversight, had failed to sign the deed, would be estopped to recover his lands after he had conveyed away those which he had received in exchange for them? An equitable estoppel, so far from operating to repeal the law, proceeds upon a full recognition of the legal rights of the party against whom it is invoked, but declares that his conduct has been such that he shall not claim the benefit of the law. The court says to him, in effect, we admit your legal title, but we shall not permit you to assert it, because it would be a fraud in you to do so. Is this repealing the law? If so, then statutes of frauds, of limitation, of registration, of wills and of every other conceivable character, have, time out of mind, been abrogated by Courts of Chancery. It is not too much to say that no statute was ever drawn sufficiently rigid in its terms to pre

Shivers v. Simmons.

clude a court of equity under some circumstances, prohibiting a party from claiming its benefits.

The only question for us to decide in this case was whether, under the facts disclosed in the record, we would apply this salutary principle to a feme covert. This court, by a long and unbroken series of decisions, has established the doctrine that, where the real estate of a married woman has been sold under judicial proceedings absolutely void as to her, she will be estopped from reclaiming it after she has received the purchase-money. We do not say that a mere reception of the purchase-money would estop her where she has attempted to convey by an invalid deed, though it seems difficult to see how the purchaser's title is void in the one case and not in the other. It is true, on the other hand, that a man who has made a conveyance wholly inoperative under the statute of frauds will not always be estopped by a reception of the purchase-money, and that the remedy of the vendee ordinarily is by an action for its recovery. But that is not the case before us. Mrs. Shivers bargained for an exchange of lands with the appellee. They mutually exchanged possession. She received from him a perfect deed, and delivered to him a defective one. Nine years elapsed; she has conveyed away all the lands which she received from him, and with the proceeds has purchased other lands, which she now holds; and when, after all this, the defect in the deed made by her is discovered, she refuses to correct it, and threatens to bring suit for the lands which she thought she had conveyed nine years before. Under such circumstances, justice can only be accomplished by enjoining the prosecution of such a suit; and this remedy we have no hesitation in applying. Precedents for such a decision are not wanting, but, if none existed, as our State took the lead in 1839 in conferring rights of property upon married women, it would be eminently proper that this court should take the lead in declaring that they cannot use those rights to defraud others. The enlarged rights of married women with respect to their separate property must carry enlarged responsibilities.

Reargument denied.

NOTE BY THE REPORTER. -For an illustration of the application of the doctrine of estoppel to a married woman, see Taddiken v. Cantrell (69 N. Y. 597), 25 Am. Rep. 253.

In Graham v. Meek, 1 Oregon, 325, a married woman was held estopped by recitals in her deed Contra. Hempstead v. Easton, 33 Mo. 142. In Bemis v. Call, 10 Allen, 512, it was held that a married woman cannot during coverture be barred of her estate, held without any limitation to her sole and separate use, by estoppel in pais. In Glidden v. Strupler, 53