June 5, 1939. Suggestion of Error Overruled July 7, 1939.
1. QUIETING TITLE.
The owner of land out of possession may resort to an equity court to remove clouds and confirm title (Code 1930, sec. 404).
2. QUIETING TITLE.
In suit in equity to remove clouds and confirm title, deraignment of title from a common source is sufficient.
3. INSANE PERSONS.
A chancery court proceeding authorizing the execution of a trust deed covering land of an owner non compos mentis, and its foreclosure and decree confirming the foreclosure, so far as collateral attack is concerned, are governed by the same rules that would apply if owner had been sane at the time, except a non compos has the right to appeal to the Supreme Court at any time within six months after he becomes sane (Code 1930, sec. 2323).
4. INSANE PERSONS.
As long as chancery court decrees authorizing execution of trust deed covering land of an owner non compos mentis and its foreclosure and confirming foreclosure stood unappealed from, they were not subject to collateral attack, except for voidness on their face or fraud in their procurement.
5. INSANE PERSONS.
Where, in chancery court proceeding authorizing execution of trust deed covering land of an owner non compos mentis and its foreclosure and confirming foreclosure, court had jurisdiction of subject matter and of parties, presumption of validity of the decrees existed.
APPEAL from chancery court of Adams county; HON. R.W. CUTRER, Chancellor.
Brandon Brandon, of Natchez, for appellants.
The amended bill of complaint is in fact one brought only for the purpose of having the alleged title of the complainants confirmed and quieted, and therefore this bill cannot be maintained because it appears that there is adverse occupancy of the premises on the part of the defendants.
Section 403, Code of 1930.
An action to remove clouds upon title under the provisions of Section 404 of the Code lies only: "When a person not the rightful owner of any real estate shall have any conveyance or other evidence of title thereto or shall assert any claim or pretend to have any right of title thereto which may cast doubt or suspicion on the title of the real owner." It was never intended by the Legislature that Section 404 of the Code of 1930 be invoked to confer jurisdiction upon chancery courts to try cases of disputed title to land between parties, one claiming title from the other and such other denying the validity of such asserted claim. In cases such as that presented by the averments contained in this bill of complaint, the remedy afforded by law is either under Sec. 403 of the Code, to confirm title, or under Chapter 25 (Ejectment) of the Code of 1930, or other remedy at law wherein the issues in dispute as to the validity or invalidity of title may be tried by a jury under the constitutional guarantees under the Bill of Rights of the Constitution of the State of Mississippi and the Fourteenth Amendment of the Constitution of the United States. This bill of complaint can be maintained in a court of chancery and equity jurisdiction as above pointed out only as a bill to confirm and quiet title, and, such being so, cannot be maintained in view of the averments contained in the bill of complaint showing adverse occupancy of the lands in controversy on the part of the defendants.
Gambrell Lbr. Co. v. Saratoga Lbr. Co., 87 Miss. 773, 40 So. 845; Easterling v. Howie, 179 Miss. 680, 176 So. 585; Griffith's Chancery Practice, 215, sec. 217.
In Mississippi by virtue of the separate provisions of Section 403 and Section 404 of the Code of 1930 the distinction between suits to confirm title or to have claims to title quieted on the one part, and those to have removed and cancelled pretended claims to title as clouds upon title, has been maintained; and at least in instances where it is sought to have a title confirmed and quieted, the laws of Mississippi have adhered to the ancient common law and chancery rules that gave to courts at law exclusive jurisdiction to try titles by way of actions in ejectment, trespass, writ of entry, or other appropriate proceeding at law, except in such instances as where the complainant seeking to have his title confirmed and quieted was in possession of the lands and premises, wherefore, being in possession, he could not maintain an action at law; and equity in order to afford relief from successive attacks and suits, there being no adequate remedy at law, granted to the complainant in possession the right to file a bill in chancery to confirm and quiet his title.
5 R.C.L. 634, 637; Huntington v. Allen, 44 Miss. 654; Glazier v. Bailey, 47 Miss. 395; Phelps v. Harris, 51 Miss. 789.
The complainants in their bill of complaint have not deraigned their title as required by law, nor shown a perfect legal or a perfect equitable title to the lands, and have not shown wherein the claim to title of the defendant is invalid.
Mr. Justice Griffith in his treatise on Mississippi Chancery Practice, referring to numerous decisions of this court, has said: "Sec. 211. Cloud Suits, In General. . . . but as a condition to that relief it is thoroughly settled by repeated decisions that he must have, and must show by his bill, a perfect legal or else a perfect equitable title, and he cannot recover on the weakness, or even on the entire want, of title on the part of his opponent, or as the phrase is usually framed he must recover on the strength of his own title and not on the weakness of his adversary's and regardless of whether the defendant's title be invalid or even non-existent; and it has even been held that although an answer admit the allegations of a bill respecting a suit for title, the court is yet obliged to look to the bill to see whether it makes a case for recovery, since a complainant must recover on the strength of his own title, wherefore his bill must itself affirmatively show good title, and moreover the bill, similarly to the pleadings in any other case, is construed most strongly against the pleader."
Griffith's Chancery Practice, page 209, sections 211 and 212, page 211, sec. 213, and pages 213, 214, sec. 215.
That it is necessary by a full deraignment of title for the complainant to show that he has a perfect legal or a perfect equitable title and must further show wherein the defendant's claim to title is invalid and totally lacking in substance, is supported by the following cases:
Toulmin v. Heidelberg, 32 Miss. 268; Huntington v. Allen, 44 Miss. 654; Cook v. Friley, 61 Miss. 1; Harold v. Robinson, 61 Miss. 153; Hart v. Blumfield, 66 Miss. 100, 5 So. 620; Childs v. Gallagher, 67 Miss. 413, 7 So. 208; Wilkinson v. Hiller, 71 Miss. 678, 14 So. 442; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Gambrel Lbr. Co. v. Saratoga Lbr. Co., 87 Miss. 773, 40 So. 485; Goff v. Avent, 122 Miss. 86, 84 So. 134; Eastman v. Wyatt Lbr. Co., 102 Miss. 313, 59 So. 93; Russell v. Hickory, 116 Miss. 46, 76 So. 825; Smith v. Deas, 158 Miss. 111, 130 So. 105; Nicholson v. Myres, 170 Miss. 441, 154 So. 282.
We respectfully submit that the complainants have not deraigned their claim to title as by law required, have not shown a perfect legal title or a perfect equitable title to the lands in controversy, and have not shown wherein the title claimed by the defendant lacks substance or is invalid.
When a person owns property, he cannot be divested of his right and title therein or his possession or control thereof if he be of unsound mind, and, though he be of unsound mind, unless he has first been adjudicated to be a lunatic in accordance with the statutory scheme, and until a guardian of his estate has been appointed and qualified in accordance with the statutory scheme.
In any deraignment of title as coming from any lunatic, through any proceeding taken or had by, with, or against a guardian, it is essential that such deraignment include a pleading of and due reference to the proceedings (a) for adjudication, and (b) for the appointment and qualification of a guardian; and, since the jurisdiction of the court and its power to act is statutory, any deraignment of such title must show compliance with the statutory provisions, and thereby vesting in the court jurisdiction of the person of the incompetent, both with respect to the proceedings for adjudication and those with respect to the appointment of a guardian.
But this alone is not enough. Even if it had been shown that there had been a due adjudication of R.H.C. Dana to be a person of unsound mind upon writ of inquiry and proceedings duly had, and if it had been shown that Miss Octavia Dockery had been duly appointed and qualified, and was the duly appointed and qualified guardian of the estate of said R.H.C. Dana by proper proceedings of court, yet the court will not presume upon mere recital that a deed of trust had been executed by such guardian by authority of court, that such deed of trust was validly authorized and executed. For the court must inquire, in considering the deraignment of title by the complainant, whether the court could authorize the guardian to execute the particular deed of trust which it is charged Miss Dockery, as the alleged guardian, did execute.
Sections 1902 and 1903, Code of 1930.
This deraignment utterly fails to show any divestiture of title out of this incompetent appellant or out of his estate by any proceedings authorized by law.
As to complainant's allegation in the bill that the decree authorizing the execution of the deed of trust and the decree authorizing foreclosure thereof and the decree confirming sale, are res judicata, complainants cannot plead res adjudicata upon these decrees. First, because the decrees have not been properly plead, and, secondly, because by this proceeding in which complainants seek to have removed a cloud upon their title, they have put in issue the validity of their title and therefore have put in issue the validity of the decrees and all proceedings necessary to support the same.
Certainly this court will not hear complainants to rely upon the doctrine of res adjudicata to deprive an insane person of his property without there being shown by proper averments of the bill that the court had jurisdiction of the person of the incompetent and jurisdiction of the subject matter, to-wit, his estate.
Finney v. Speed, 71 Miss. 32, 14 So. 465.
L.A. Whittington and Engle Laub, all of Natchez, for appellees.
We submit that Section 404 was the suitable and proper section of the code under which to bring the bill of complaint in question and that Section 403 of the Mississippi Code of 1930 was inapplicable.
Griffith's Chancery Practice, page 204, par. 211, and page 206, par. 209.
In this case the appellees were the owners of a valid equitable title if the deed made by the commissioner, and confirmed by the court, conferred such upon them; they were not in possession of the premises, but the appellants were occupying the premises and these appellants were not the rightful owners thereof if the foreclosure proceedings were valid, all as alleged in the bill of complaint. Further, the appellants were asserting a claim and pretending to have a right to title to the premises in question which might cast doubt and suspicion on the title of these appellees, the real owners, and this claim was set forth specifically in the bill of complaint, to-wit: "Defendant claiming that the foreclosure sale was not valid, as complainants are informed and believe."
Here is an allegation of a pretended claim of title and the court will note that under the provisions of Section 404 that this pretended claim need not be based upon a deed, the language being "When a person not the rightful owner of any real estate shall assert any claim or pretend to have any right or title thereto which may cast doubt or suspicion on the title of the real owner."
We submit with all due deference that the allegations show as plainly and specifically as can be shown that the claim of the complainants and the title of the complainants arose from that of the appellants, that is to say, a common source, and there can be no contention that where the title arises from a common source that there need be a deraignment beyond that common source.
Griffith's Chancery Practice, page 207, sec. 210, and page 211, sec. 213.
Where in a proceeding to cancel clouds it is shown that the parties claim from a common source it is not necessary to show title antecedent to that source, and if the complainants have the better claim the defendant's claim will be cancelled whether legal or equitable.
Griffith's Chancery Practice, sec. 216; Banks v. West, 67 Miss. 729, 7 So. 513.
If there was no legal adjudication of R.H.C. Dana as a person non compos mentis that was an absolute defense in Cause No. 5223. If there was no guardian legally appointed, acting and qualified that was a legal defense in Cause No. 5223. If the deed in trust was unauthorized and illegal then that was a direct defense to the foreclosure of the deed of trust. If there was anything defensive which might have been urged with reference to the adjudication of the lunatic, the appointment of the guardian and the administration of his estate, all those matters should have been urged and litigated in Cause No. 5223 in which the final decree ordering the property sold and confirming the sale of the property was rendered. All these questions are now foreclosed.
If the execution of the deed in trust was invalid and illegally authorized; if the decree of the court authorizing foreclosure was illegal; and if the decree confirming the sale was illegal, the illegalities were matters that should have been urged in defense of the foreclosure proceedings, it being remembered that at that time R.H.C. Dana, who was non compos mentis, had a guardian who was a party to that suit.
We respectfully submit that the decree of the lower court overruling the demurrers should be by this court affirmed.
Argued orally by Gerard Brandon, for appellants, and by S.B. Laub, for appellees.
Appellees filed their amended bill in the chancery court of Adams County against appellants to remove clouds from and confirm their claim of title to forty-five acres of land in that county, the property rather extensively known as "Goat Castle," and for possession thereof, and to recover rents for its use. Appellants demurred to the bill, assigning general and special demurrers. The demurrers were overruled and an appeal granted to settle the principles of the cause.
The questions are: Whether one out of possession claiming title to land may resort to a court of equity to remove clouds; whether in their bill the appellees deraigned their title in accordance with law; whether the chancery court foreclosure proceeding, through which appellees claim title to land, and the chancery court proceeding authorizing the execution of the deed of trust, which was foreclosed, can be attacked collaterally.
The bill sets out in substance the following facts: On the 2nd of August, 1923, and long prior thereto, appellant Dana was the owner of the land involved. On that date appellant Octavia Dockery was duly appointed by the chancery court of Adams County and qualified as his guardian, he being a person non compos mentis. At the time there were certain outstanding debts and obligations "owing by said Dana and his estate to Charles Zerkowsky," to secure the payment of which the court, in its decree, authorized the guardian to execute a deed of trust on the land involved. That was accordingly done. Default was made in the payment of the indebtedness, and thereupon the beneficiary in the deed of trust, Charles Zerkowsky, filed his bill in the chancery court for its foreclosure. Both of these appellants were made parties to that cause. On final hearing a foreclosure decree was entered and a commissioner appointed to make the sale, which was accordingly made on the third day of February, 1930, at which sale Charles Zerkowsky, being highest and best bidder, received a conveyance from the commissioner, which was duly recorded in the chancery clerk's office of the county. Copies of the commissioner's report and the decree confirming the sale are exhibits to the bill. Charles Zerkowsky died on the 14th day of October, 1930, leaving a last will and testament, devising the property involved to the appellees, who own it as tenants in common.
From the time of the foreclosure sale up to the time of the filing of the bill in this cause in 1938, appellants have been in possession of the property involved, during which time various and sundry negotiations have taken place between the parties with reference to its repurchase by appellants, the payment of rent and other matters, in all of which appellees and Charles Zerkowsky, through whom they claim title, were recognized as the true owners of the land. During that period, the property was assessed for taxes to Charles Zerkowsky, which he paid, and after his death it was assessed to appellees, and they paid the taxes. It is averred in the bill that the delay on the part of the appellees in taking the necessary steps to get possession of the property was caused by the depression and the necessitous condition of appellants.
The bill charged that appellants were asserting title to the land upon the ground that the chancery court proceedings referred to were void.
Section 404 of the Code of 1930 appears to be a complete answer to the contention that the owner of land out of possession cannot resort to an equity court to remove clouds and confirm title. The statute plainly authorizes that to be done.
It is true that appellees do not deraign their title from the government down. Instead they deraign it to a common source, appellant R.H.C. Dana. That was all that was required under the law. In Griffith's Chancery Practice, Section 216, the principle is stated thus: "Where in a proceeding to cancel clouds it is shown that the parties claim from a common source it is not necessary to show title antecedent to that source, and if the complainants have the better claim the defendants claim will be cancelled whether legal or equitable." People's Bank v. West, 67 Miss. 729, 7 So. 513, 8 L.R.A. 727.
The chancery court proceeding authorizing the execution of the deed of trust, and its foreclosure, and the decree confirming the foreclosure, so far as collateral attack is concerned, are governed by the same rules that would apply if Dana had been sane at the time, except under Section 2323 of the Code of 1930 a non compos has the right of appeal to the Supreme Court at any time within six months after he becomes sane. As long as those decrees stood unappealed from, they were not subject to collateral attack, except as any other judgment — for voidness on their face or fraud in their procurement. On their face they are valid, and the bill contains nothing indicating that they were procured by fraud.
The court had jurisdiction of the subject matter and of the parties. That results in the presumption of validity.
Affirmed and remanded.