JEFFERSON CO. MS
COURT RECORDS
 

"Reports of cases argued and determined in the High Court of Errors and appeals for the state of Mississippi" by Volney E. Howard, Vol.V, Cases December 1840 and January 1841; Spine title: Howard's Reports, Vol.6 1840-41; ("Mississippi Reports") Vol.6, pgs.305 to 362 (California State Law Library 12/2003, headed JANE B. ROSS et al v. VERTNER et al); AND "Reports of cases decided in the Superior Court of Chancery of the State of Mississippi" by John D. Freeman, Attorney General of the State, Vol.I, Cases decided between December term 1839 and July term 1843; Vol.I, pgs.587 to 702 (California State Law Library, Sacramento, 1/2004, headed ROSS & ROSS v. DUNCAN et al; same v. VERTNER et al) (MAD's extract)
      JANE B. ROSS et al., Appellants, v. VERTNER et al; Supreme Court of Mississippi; 6 Miss. 305; 5 Howard 305; Freem. Ch. 587; December, 1840, Decided.
      Appeal from the Court of Chancery. The appellants, as the heirs of Isaac Ross, and Margaret A. Reed, filed their bills in chancery, to set aside certain bequests of the testator and testatrix, in their respective wills, to trustees, directing that their slaves should be sent to Liberia, there to remain free. There was a demurrer to both bills, and the suits dismissed, from which an appeal was taken to this court. The cases were submitted together, and the opinion applies to both. On the 26th day of August, 1834, Isaac Ross made his last will and testament, to which he afterwards attached several codicils. The said will and codicils are in the words following, to wit: [Jefferson Co.] ... to my grand daughter, Adelaide Wade, ... To carry the above provisions and bequests into full and entire effect, I do hereby nominate and constitute Daniel Vertner, James P. Parker, Dr. Elias Ogden, now of Natchez, Isaac Ross Wade, and John B. Coleman, executors of this my last will and testament. ... Codicil .. Third, I give and bequeath to my grandson Isaac Ross Wade, my secretary and book case, and all my books of every kind and description. Codicil ... desire that my daughter Margaret A. Reed ... for her life ... Isaac Ross died on the 19th day of January, 1836, leaving three heirs, to wit: complainants and one Margaret A. Reed. Margaret A. Reed died before the commencement of this suit, having devised and bequeathed to defendants, Butler and Duncan, all her right and interest in the estate of her father, the said Isaac Ross.
      In the case of Mrs. Reed, the bill was filed by appellants, as heirs at law of Margaret A. Reed, deceased, to set aside the will of said Margaret, and to establish a resulting trust in favor of themselves. It set forth the will of Margaret A. Reed, published on the 14th June, 1838, in which all her estate, both real and personal, was devised and bequeathed to appellees. Also, a codicil thereto, published on the 4th day of September, 1838, in which was devised to said appellees, all the interest of the said Margaret A. Reed in and to the estate of her father Isaac Ross, before that time deceased, in case the will of the said Ross should be declared invalid. The bill further averred the death of Mrs. Reed, and that her said will and the codicil thereto are in fraud and violation of the laws and policy of the state of Mississippi, and therefore void. It was averred that the estate so devised, was given in secret trust that the said Butler and Duncan should convey all the said slaves of testatrix to Liberia, there to remain free. In support of this averment, appellants exhibit in their bill, a letter from testatrix to appellees, dated 14th June, 1838, which they say points out the secret and illegal trust.
      By the seventy-fifth section of the Revised Code, p. 385, it is declared that it shall not be lawful for any person, being the owner of slaves, to emancipate them by last will and testament or otherwise, unless it is proven to the satisfaction of the general assembly, that such slave or slaves, hath done and performed some meritorious act for the benefit of the owner, or some distinguished service for the benefit of the state; and without the sanction of the legislature, the act of emancipation is void. Such is the policy of the laws of this state.
      In the discussion of the case of Jane B. Ross et al. v. Duncan & Butler, we propose to establish: 1. That the devise by the testatrix of her slaves, and her plantation called Ridges, to her executors, in secret trust and confidence, that they would transport the slaves to Africa for the purpose of effecting their emancipation, and sell and dispose of the plantation to defray the expense and provide for said slaves two years in Africa, was in fraud of the policy and laws of the state, and void, and that the trust in confidence for such purposes cannot be executed by the executors.
      (MAD: the court case takes more than 50 pages; much more not included here, including the complete text of Isaac Ross's will.)
 

"Reports of cases argued and determined in the High Court of Errors and appeals for the state of Mississippi" by W.C. Smedes and T.A. Marshall of Vicksburg, Reporters to the State, Vol.IX, Cases for January term 1847 and 1848; ("Mississippi Reports") Vol.17, pgs.596 to 612 (California State Law Library 12/2003)
      JAMISON LIDDELL v. ARTHUR B. SIMS; Supreme Court of Mississippi; 17 Miss. 596; 9 S. & M. 596; January, 1848, Decided.
      Jamison Liddell, in his bill, charges that on the 24th day of November, 1837, having confidence in the veracity and fair dealing of the defendant, Arthur B. Sims, who was his neighbor, and being desirous to purchase the tract of land on which Sims then lived, who avowed a wish to sell the same, and urged him to the purchase, representing said land was his, that he had right to sell it, and was invested with a full and legal title to the same. Complainant, confiding in these representations, agreed to purchase it, containing two hundred and fifty acres, at the price of thirty dollars per acre; and to secure the payment thereof, complainant then executed to Sims three promissory notes, for $2500 each, payable on the first days of January, 1839, 1840 and 1841; and as a further security thereof, Sims required of complainant a mortgage upon the tract of hind on which complainant resided, containing seven hundred and fifty acres; and confiding in the defendant, he executed a mortgage in conformity to defendant's requisition; conditioned to become absolute on failure to pay said notes as they respectively matured, and which was duly recorded. On the same date of the mortgage, defendant executed to complainant a bond for the conveyance of the legal title to the two hundred and fifty acres, which is exhibited with the bill, and is in these words:
      "Know all men by these presents, that I, Arthur B. Sims, of Jefferson county, Mississippi, am held and firmly bound unto Jamison Liddell, in the just and full sum of seven thousand five hundred dollars, to be paid to the said Liddell, his certain attorney, executors, administrators or assigns, to which payment well and truly to be made, I bind myself, my heirs, executors and administrators, by these presents, sealed with my seal, dated the 30th day of November, A. D. 1837.
      "The condition of this obligation is such, that whereas the said Sims has this day contracted to sell, and hath sold to said Liddell a certain tract of land in said county, lying on the North Fork, commonly called Chubby's Fork of Cole's Creek, containing two hundred and fifty acres more or less; bounded on the north, east, and west by lands of Isaac Dunbar, and on the south by said Chubby's Creek, which separates it from lands of said Liddell, granted by the Spanish government to Hunt & Freeman, and by them conveyed to Thomas Sims, saving and reserving to said Arthur B. Sims out of said tract, one half of one acre to inclose the grave yard on said tract of land. Now if the said Arthur B. Sims do, and shall upon the request of the said Liddell, his heirs or assigns, convey and assure, or cause to be well and sufficiently conveyed and assured unto the said Liddell, his heirs or assigns, or to such other person or persons as he the said Liddell shall nominate and appoint, and to such uses as he shall direct, the above tract of land now in the possession of said Sims, by such assurances or conveyances in law as by the said Liddell, his heirs or assigns, or his or their counsel learned in the law, shall be reasonably advised and required, freed and discharged from all incumbrances whatsoever; and shall upon the request of the said Liddell, his heirs or assigns, after the first day of January, eighteen hundred and thirty-nine (until which time the said Sims is to keep possession of the premises above described), deliver and give to the said Liddell, his heirs or assigns, full and perfect possession of said premises, then this obligation shall be null and void; otherwise shall remain in full force. A. B. Sims. [Seal.]"
      That complainant is an unlearned man, wholly ignorant of law, that in making said contract he relied wholly upon the representations of Sims, who was counselled and advised by his attorney, learned in the law, and who, for purposes then unknown to complainant, and wholly unexplained to him at the time, drew the obligation or contract for said land by and with the advice and consent of Sims. That on the 27th May, 1839, he paid to Sims the sum of $1116, which was to have been credited upon the foot of the notes.
      That Sims had ever since the date of said purchase, remained in the sole occupancy of the land, wasting and destroying its timber, clearing and using it as his own, without asking the consent of complainant, and had never offered the possession of said land, or a conveyance for the legal title thereof, although thereto requested; by reason of which complainant had not made the arrangements for the payment of the notes: and because defendant continued to appropriate the issues and profits of said land to his own use and as his own, and refused the possession.
      That the profits were of the annual value of $600 or more, which Sims never accounted for, or proposed or offered to account for; which conduct he insists operated a rescission and disaffirmance of said contract on the part of Sims, and which he was willing so to regard on his part.
      That on the 21st of April, 1842, Sims instituted his action at law in the circuit court of Jefferson county against complainant, on all of said notes, and would prosecute it to judgment unless restrained by this court; that since the institution of said suit, he has made every reasonable exertion to adjust and compromise said matter, and had offered to give up to Sims besides the money he had already paid him, the two hundred and fifty acres of land he bought of him, and the seven hundred and fifty of equal quality to the other, which he had mortgaged to him, if Sims would give him up his notes, so much had the lands depreciated in value; but Sims refused the offer, and finding Sims disposed wholly to ruin him, he was for the first time put upon inquiry as to the right and title of Sims to the land, and an investigation of the written terms of the bond, which had resulted in the discovery for the first time, that Sims had no legal title to the land.
      That the same was not granted by the Spanish government to Hunt & Freeman, and by them conveyed to Thomas Sims, as was fraudulently and falsely represented unto him by the defendant Sims at the time of sale; but upon investigation of the record of land titles, he had for the first time discovered that Thomas Sims never did in his lifetime have any legal title to said land; and that whatever right he had in the same, was by him devised in his last will unto his children, Rebecca, said defendant Sarah, Hannah, Isaac and Lewis; and that at the time of the said sale, the defendant Sims was the owner of only an equitable claim to the one-sixth part of said land; that two of his said sisters were femes covert, without having conveyed to said Sims their interest in said land; that his sister Hannah, one of said devisees, intermarried in her lifetime, and had since departed this life, leaving a family of infant children, without having ever conveyed to the defendant her interest, and that defendant had it not in his power to obtain the legal title of said land if he desired it.
      That he is now satisfied, from the conduct of Sims and subsequent developments, that at the time of making said sale, he, for the purpose of cheating and defrauding complainant, suppressed and concealed from him his (defendant's) knowledge of the defects of his title to said land, and falsely and fraudulently represented to complainant that he had a legal title to sell the same, well knowing at the same time that he had no such right, and that he cunningly, artfully, and fraudulently contrived the phraseology of said bond, whereby to compel complainant to take assurances for title, and that a default of any one payment should make the mortgage absolute; knowing at the time that he had not any title to the land sold, and that complainant was ignorant of the legal effect of the terms used in said bond; that he was without the assistance of counsel, and confided in the good opinion he then entertained toward Sims, that he would not take any advantage of him.
      He charges again more particularly the exclusive occupancy of said land by Sims. the receipt of its profits, and a refusal to give him possession of it, or to release the mortgage on complainant's land, although thereto requested, for the purpose of mortgaging it to raise funds to pay defendant said notes; that Sims is insolvent.
      The bill prays for an injunction against the suit at law, a rescission of the contract, concealment of the notes, that the mortgage be cancelled and delivered up, and the defendant be required to accept said bond which is tendered, and for restitution of the sum of $1116, with interest, and that a lien upon Sims's right in said land be retained for its payment.
      The bill was filed on the 18th day of May, 1842.
      The answer of Sims, filed in May, 1843, admits the sale of the land in November, 1837, at the price of $30 per acre; the execution of the three notes, of the mortgage to secure their payment, and of the bond from him to complainant as recited in the bill. He denies the allegations of the bill as to his taking advantage of complainant, and says the bond was drawn up according to contract. He denies the allegation of the want of learning and ignorance of the complainant; denies that he made any representation which was not strictly true, and denies that any advantage was taken, or attempted to be taken of the complainant; denies the payment of any money on said promissory notes, but admits that about the month of May, 1839, he received from complainant a note of Ross O. Quin, which, as well as he recollects, amounted at that time with interest to the sum of eleven hundred and sixteen dollars or thereabouts, and agreed to credit the same on the first of complainant's notes, which he avers he has done. He admits that he is still residing on said two hundred and fifty acre tract of land, but says he has been at all times, and still is ready to deliver it to complainant whenever he shall desire it; denies that complainant has ever demanded possession, or that he ever refused to deliver peaceable possession. Denies that he has committed waste, but has enhanced its value by various improvements, and repairs, &c., and by the erection of small out-houses; denies that complainant has ever asked him for a title, or that he has ever refused one, but avers that he has been at all times since the first day of January, 1839, and is still ready to execute a deed of conveyance with proper covenants. He admits that he has instituted suit at law upon the notes; denies that said tract has been worth $600 per annum, as charged in the bill, but inasmuch as since the 1st January, 1839, he has been a tenant at will of complainant; he has always been ready and offered to credit the notes with a fair sum, for use and occupation of the land, provided this court should be of opinion the complainant was entitled to any. He denies that complainant ever proposed a compromise; says that the allegations of said bill of defect, and want of title to said land in defendant are wholly untrue, and he exhibits his title as follows:
      1. A copy of a grant from the Spanish government, to Don Juan Murdoch, dated August 4, 1794.
      2. A copy of a paper purporting to be a deed from John Murdoch to Abijah Hunt and William Gordon Forman, for sundry tracts of land, dated July 19, 1802.
      3. A paper purporting to be a copy of a certificate of confirmation to Hunt and Forman by the United States commissioners, for four hundred arpens of land, on Coles Creek, in Jefferson county, granted by the Spanish government to John Murdoch.
      4. A paper purporting to be a copy of an agreement of Abijah Hunt with Thomas Sims, to convey him a tract of land lying on Chubbey's Fork of Coles Creek, originally granted to John Murdoch by Spanish patent for two hundred and fifty acres, be the same more or less, dated 3d January, 1806.
      5. A paper purporting to be a copy of a deed from Joseph Forman, administrator of the estate of William Gordon Forman, to David Hunt, for that tract of land on which Thomas Sims resides, on the north fork of Coles Creek, containing two hundred and fifty acres, being the southern part of a tract of four hundred arpens of land, originally granted by the Spanish government to John Murdoch, &c., bearing date 23d Nov. 1816.
      6. A paper purporting to be a copy of a deed from David Hunt to Thomas Sims, for the land above described, dated 17th March, 1817.
      7. A copy of a paper purporting to be a deed from Isaac A. Sims, Lewis H. Sims, and Eliza his wife, Jacob K. Hill, and Rebecca G. Hill, his wife, Elisha Greenler, and Sarah his wife, to the defendant, for four-sixths undivided part of said tract of land, bearing date the 17th day of November, 1842.
      8. A paper purporting to be a deed from John H. Coller, administrator of Hannah O. Quin, to the defendant, for one-sixth undivided part of said tract of land, bearing date the 18th day of March, 1843.
      The originals of the first six exhibits defendant alleges are not in his power to produce, not being in his possession; of the last two he says he has the possession, and is ready to produce them.
      That Thomas Sims, to whom David Hunt conveyed said tract of land, left at his death six children, and heirs and devisees, to wit, defendant, Isaac A. Sims, Lewis H. Sims, Rebecca G. Hill, wife of Jacob K. Hill, Sarah A. Greenler, wife of Elisha Greenler, and Hannah O. Quin, now deceased, (and at the time of her death widow of Ross O. Quin), to whom said tract of land descended, and was devised. That some two years before the sale to complainant, he had purchased from his co-heirs all their interest in said two hundred and fifty acres of land, and held their drafts for the purchase of the same; but neglected to procure from them a conveyance of their interest, but has since obtained conveyance, and submits that he has thus shown conclusively that complainant's allegations of defect of title are wholly untrue.
      He alleges that Thomas Sims, the father of defendant, held the quiet and undisturbed possession of said tract of land, under the title set up as aforesaid from 3d January, 1806, until his death in 1818, from which time defendant, and those under whom he claims, have held like quiet and undisturbed possession of said land. He denies that he was ever requested by complainant to release his mortgage, as charged; denies all intention or wish to harass, &c.; denies all allegations of fraud, combination and confederacy, and of having taken or attempting to take any advantage whatever of complainant. He prays to be dismissed with his costs, &c.
      Thomas H. Stuart proved that he was acquainted with the tract of land in controversy, that it adjoined him, that it had been occupied and cultivated by defendant from the date of sale to complainant, until the time of taking his deposition; that all of said land was cleared, except about thirty-five acres; that defendant has continued to use and improve the same apparently as his own ever since 1839. He proved the annual value of the land; that he was acquainted with Hannah O. Quin, sister of defendant, that she died some five or six years since; was survived by her husband Ross O. Quin, who died one or two years after her, and that she left a family of children who are yet minors; that Sims had cut timber to repair the fences, &c., nnd the land was so exhausted there was scarcely enough left to keep it in repair; that said land had been materially injured since 1839, by culture and washing into gullies, not resulting from injudicious culture, but from the nature of the soil and situation of the land. That Sims is reputed insolvent; that he has been acquainted with complainant fifteen years, and knew him to be a very ignorant man, very easily imposed upon and of very inferior capacity; has resided neighbor to him all the time; knew him intimately from frequent dealing with him; that defendant still uses said plantation for all plantation purposes, has cleared up some deadened land upon the same, and speaks of the plantation as his own, or as any one else would occupying it.
      John H. Coller, the administrator of Hannah O. Quin, proves that he knew of no debts against the estate of Hannah O. Quin at the time he obtained letters of administration on said estate; that he obtained administration at the request of the defendant, Arthur B. Sims, and of H. B. Harrison, the guardian of her children, and he obtained the order to sell the land at their request; the defendant Sims had never paid him for it.
      John H. Duncan proved the heirs of Thomas Sims to be as stated by defendant in his answer, and the defendant to be insolvent; that Hannah O. Quin left three children, born during her marriage with Ross O. Quin, and that said children are still minors.
      James B. Truly proved that Thomas Sims lived on the land in controversy prior to the year 1810, and resided there until his death, claiming it as his own, and that the defendant has resided on it ever since.
      The complainant introduced as evidence in his behalf, a transcript of all the orders, steps and proceedings of the probate court of Jefferson county, appointing Coller administrator of Hannah O. Quin; they show that all of the steps were taken after the filing of the bill by the complainant.
      On motion of the defendant, the cause was referred by the chancellor to Robert Hughes, Esq., clerk, to report upon the title, who reported that the defendant could make no title as to one-sixth part of said land.
      At the June term, 1845, the cause was heard, and the chancellor decreed that the complainant's bill be dismissed, without prejudice to the bringing of another bill, and that complainant pay the costs to be taxed; from which decree this appeal is prosecuted.
      (MAD: arguments of counsel omitted here)
      Mr. Justice CLAYTON delivered the opinion of the court.
      This is a bill filed to rescind a contract for the sale of a tract of land, and to enjoin a suit at law upon the notes given for the purchase-money. It charges that in November, 1837, the complainant purchased of the defendant a tract of two hundred and fifty acres of land for the sum of $7,500, and gave a mortgage upon another tract of seven hundred and fifty acres to secure the payment of the purchase-money. It charges that Sims, the vendor, represented that he had a full and complete legal title to the land, and that complainant confided in his representation. That complainant gave his three promissory notes for $2,500 each, the first payable 1st January, 1839, and the others in one and two years afterwards. That Sims gave his bond for title in which he agreed to make, upon request, sufficient conveyances and assurances of said land, freed and discharged from all incumbrances whatsoever, and to deliver possession upon request after the 1st of January, 1839, until which time he was at liberty to retain possession. That Sims has always remained in possession of the land, and still holds it, and has never made title thereto, although requested. States that Sims is insolvent, that at the time of the sale he had title to only one-sixth of the land, and fraudulently suppressed and concealed the want of title. That complainant is a man of weak mind; that he relied on Sims, who was his neighbor, and believed he would not take advantage of him. The bill was filed in May, 1842, and avers that the defects in the title had then been recently discovered.
      The answer of Sims denies all fraud; denies the making of any untrue representation; denies that complainant is a man of weak mind, and denies the taking of any advantage of him. Avers that since the 1st of January, 1839, he has at all times been ready to execute a deed with proper covenants. States that he had purchased the shares of his co-heirs before he made the sale to complainant, and had taken their draft for title, which had been lost or destroyed, but that he had not taken conveyances from them until recently, and exhibits their deeds with his answer. This answer was filed in May, 1843, and one of the deeds of his co-heirs bears date in August, 1842, the other in March, 1843.
      The evidence proves the insolvency of Sims, and that he has remained in possession of the land ever since the sale, cultivating it as his own. It also proves that the complainant is a very ignorant man, of very inferior capacity, and very easily imposed upon.
      The chancellor dismissed the bill.
      If this were a bill on the part of the vendor to enforce a specific performance of the contract, it would be dismissed without hesitation. The delay, the change of times and circumstances, the depreciation in the value of the land, and the inability of the vendor to make a valid title at the time agreed, and for a long period afterwards, would have clearly required the court to refuse its aid. It is not at this day to be taken as true, that time is regarded as of no moment in equity. (MAD: much more omitted here)
      We think the complainant has made out a case for rescission. He will be entitled to a lien on that part of the land to which the vendor has title, for the amount of money which he has paid under the contract. The case will be reversed and remanded, that an account may be taken of the payments so made, with interest. The contract will be rescinded, the agreement and mortgage cancelled, and the suit at law perpetually enjoined.
      The decree is reversed and the cause remanded.
 

"Mississippi Reports, Vol.46, Being cases argued and decided in the Supreme Court of Mississippi" Vol.IV, by J.S. Morris; Vol.46, pgs.725 to 728 (California State Law Library, Sacramento, 1/2004)
      BERNARD HYMAN v. A. J. CAMERON et al; Supreme Court of Mississippi; 46 Miss. 725; April, 1872, Decided.
      Appeal from chancery court of Jefferson county. Ellis, Chancellor.
      (opinion:) SIMRALL, J.: Bernard Hyman complains in this court, of the decision of the chancery court, sustaining a demurrer to his bill of intervention, and dismissing it. This is the state of the pleadings: Henry C. Lindsay brought his bill in chancery against Duncan, Burch, Cameron and Mrs. M. J. Wade, in which he alleges, that, in 1861, he bought at the sale under probate decree, made by Robert Duncan, the administrator of S. B. Owens, deceased, a parcel of real estate in the town of Fayette, with John H. Duncan and Burch his sureties on the bonds for the purchase-money; and, in order to indemnify his sureties, he executed a deed in trust to Cameron, trustee, covering this and other property, and that Cameron, the trustee, was about, at the request of the sureties, to make a sale of the property. When neither of them had paid the debt or any part of it, neither had been damnified, nor could be, because both were insolvent to this bill. A demurrer was sustained and leave given the complainant to amend.
      At this point Hyman applied by petition for leave to file a bill of intervention, stating that he was a purchaser from Lindsay of the premises, and in possession. That Lindsay had abandoned his suit with a view to defraud and injure him; that there were good causes of amending Lindsay's bill, which he desired to make. The court permitted him to file his bill, in which he states, that he had paid Lindsay the purchase-money, and had brought suit to force him to make a deed; that a decree to that effect had been rendered. Referring to Lindsay's bill and its contents, the demurrer sustained thereto and the leave granted to amend. He alleges that Lindsay had declined to amend for the purpose of defrauding and oppressing him, and, therefore, asks that he may be allowed to intervene and make the amendments to Lindsay's bill; and thereupon, in addition to the allegations to the bill, he proceeds to set out additional matter as amendments thereof, to wit: that Duncan, the administrator of Owens' estate, had deceased, and that Mrs. Wade, his sister, had been appointed administratrix in his stead, and had become possessed of the bonds given by Lindsay for the land; that she had no title to these bonds; that if a sale should be made the money would be paid to Mrs. Wade, which would be no satisfaction of the debt to Owens' estate. That no notice of the trust sale was given by Mrs. Wade or on her behalf. She further states that he has lost part of the land recovered from him in an ejectment suit, having a front width of eighteen feet, which was worth $1,600, which ought to be credited on the debt to Owens' estate; that one Adair is the administrator de bouts non of Owens' estate.
      It is a novel proceeding in chancery to allow a stranger to a suit to become a party for the purpose of amending a bill which the complainant has abandoned, and then conduct the suit in his own name. Intervention is a civil law term, a pleading familiar in that system. It is the act by which a person, not originally a party, "comes between them," claiming an interest in the subject-matter, and interposes his claim, which is generally adverse to one or both of the original litigants. It is unknown to the common-law courts of law and equity, but has been admitted in the practice of the ecclesiastical courts, which closely resembles that of the civil law.
      The only remedy for a wrong threatened or done, or to enforce a right in a court of equity, is to bring the appropriate original suit, and interplead with the adversary in respect of it; or, if a suit is already pending touching the subject-matter, to apply to be made a party thereto, and either as a co-complainant or defendant introduce into the suit the right which is claimed.
      Where there are two or more claimants of a debt or other matter, a party may resort to chancery for his protection against the conflicting claimants, and the harassment of several suits, and insist that the claimants shall litigate their demands, and submit to the decision of the court their respective rights. But the bill of interpleader rests upon the fundamental principle that the complainant is the mere holder of a stake, which is to be contested for by the other parties, he standing wholly indifferent between them. If the complainant seeks relief in the premises against either party, or asserts a right or claim against either or both of them, it would be fatal to his bill.
      The objects of this proceeding by Hyman are to oppose the right of Cameron, the trustee, to sell the property, and, secondly, if that should be done, to settle what is due of the original purchase-money to Owens, administrator, by crediting the bonds with the paymeat made by Lindsay, and also with $1,600, the value of the fraction of land recovered in the ejectment suit.
      Hyman, as purchaser of the property from Lindsay, is deeply interested in the subjects brought into this litigation. If the terms and conditions of the indemnity executed by Lindsay for the protection of his sureties is like the deed in trust in a case decided at this term (See Osborn et al. v. Noble, supra, p. 449) he would be concerned to prevent the sale by the trustee Cameron, for until the sureties had paid, or been damnified, there would be no breach of the condition, and no right to sell. On demurrer to the bill, we must gather the terms of the deed in trust, from its allegations, and not by a reference to the deed which is made an exhibit. So, too, if there was a combination and conspiracy to pay the proceeds of a sale to Mrs. Wade, administratrix of Duncan, instead of Adair, the administrator de boats non of Owens, he would be interested to disembarrass his land from the statutory lien, by having a proper appropriation of the money raised by the trust sale. As to the credit claimed for the value of the land recovered from him by a paramount adversary title, that claim would not be well founded, unless the administrator, as such, warrants the title, and thereby binds the estate. We understand the opposite to be the settled doctrine, and caveat emptor applies. The purchaser takes the risk of the title being in the intestate at the time of his death. But whatever may be the equity in any view of the allegations made in Hyman's bill, we are satisfied that such a pleading has no place in equity jurisprudence, and that the only remedy which he could resort to was an original bill against all these parties.
      Upon this appeal we cannot notice the decision of the court, upon the demurrer, to the original bill.
      Let the decree be affirmed.
 

"Reports of cases in the Supreme Court for the State of Mississippi" by Harris & Simrall, Vol.LII, containing cases decided at the April and October terms 1876; Vol.52, pgs.367 to 374 (California State Law Library, Sacramento, 1/2004)
      M. J. WADE v. WILLIAM THOMPSON et al; Supreme Court of Mississippi; 52 Miss. 367; April, 1876, Decided.
      Error to the Circuit Court of Jefferson County. Hon. Uriah Millsaps, Judge.
      All the material facts are stated in the opinion of the court.
      The following errors are assigned:
      1. The court below erred in not allowing plaintiff in error to read in evidence the deed from Robert Duncan, administrator of S. B. Owen, to H. C. Lindsey.
      2. In allowing defendant Hyman to read in evidence the deed to him by J. J. Owen, the same having been obtained after the institution of this suit.
      3. In awarding judgment for the defendants instead of for the plaintiff.
      4. In refusing to grant a new trial.
      COUNSEL: T. J. & F. A. R. Wharton, for plaintiff in error: The general rule in ejectment is that the plaintiff must recover on the strength of his own title. But we submit that this case comes within the exception to the rule which applies when both parties derain title from a common source. Whilst they need not go further back than the common source, the defendant may set up a title drawn to the common source. We insist that the title to the property in controversy was divested out of the estate of S. B. Owens, from whom both parties claim title, by the sale by his administrator, and consequently the deed from J. J. Owens conferred no title upon defendants, and that the rule when both claim from a common source applies to the case at bar, and plaintiff was not compelled to prove title against the world. See McLaughlin v. Green, 48 Miss. 175. It was not necessary for him to show that Lindsey had any title himself, and that the title vested in the trustee, Cameron, was ever legally conveyed to him.
      As to the objection that it was not shown by the evidence of plaintiffs in the court below that notice of the sale was posted at the court house door for twenty days, and ten days' previous notice, etc., of the sale from Lindsey, the grantor in the deed of trust, we submit, 1st, that the deed from the trustee, Cameron, to plaintiff, recites that notice was published in the "Chronicle," etc., and by posting in five public places in the county, etc., for thirty days.
      Cameron says he gave notice by posting in three or four public places, and by notice in the "Chronicle" for thirty days. This was sufficient. Who but Lindsey could object that the directions as to giving him special notice, and by posting at the court house door, were not literally complied with? Neither he nor the grantor nor the beneficiaries in the deed have complained.
      H. Cassidy, for defendants in error:
      The law is clear that the plaintiff in ejectment must recover on the strength of his own title, but there is an exception where both parties trace title to a common source.
      For the purpose, doubtless, of laying a foundation to invoke the aid of the exception, plaintiff introduced a deed from Lindsey to Hyman, the defendant.
      If Hyman had claimed exclusively under that deed there would be some ground for invoking the exception. But he set up his purchase of the outstanding title of the only heir of S. B. Owen, deceased. This restored the rule, and placed the onus on plaintiff of showing a perfect title. Hyman was authorized to do this to protect his possession.
      The onus being thus placed upon plaintiff, she fails in two respects: 1st. In failing to show that Lindsey, as a purchaser, under whose trust deed she claims title, had any title himself. 2d. That the title vested by that trust deed in the trustee, Cameron, was never legally conveyed by him for failure to proceed upon the conditions on which alone he was authorized to sell and convey. There is nothing to show title in the trustee, or that he was ever in possession of the property. There is a pretense that he claimed title from Duncan, the administrator of Owen. This suspicion is strengthened by one of the grounds of motion for a new trial: "Because the court erred in refusing to admit the plaintiff to read the deed from Robert Duncan, administrator of S. B. Owen, to H. C. Lindsey."
      A deed from an administrator to real estate arises out of an exceptional power to convey, and must rest on a strict compliance with the law giving the power. Prima facie an administrator has no authority over the land, and a deed from him comes in questionable guise, and must depend upon proof of the facts out of which the authority to sell alone arises. As the record fails to show why the deed was excluded, this court will presume the court below acted properly unless the error is made to appear affirmatively by the record. The bill of exceptions fails to show that the deed was ever offered in evidence.
      SIMRALL, C. J., delivered the opinion of the court.
      An action of ejectment was brought by Mrs. M. I. Wade, to recover from the tenant in possession a lot of ground in the town of Fayette. Henry Hyman, as landlord, was admitted to defend, and pleaded the general issue.
      The bill of exceptions, considered in connection with other parts of the record, does not, perhaps, present the case as fully as it was developed on the trial.
      On the (blank) day of (blank), 1861, Henry Lindsey executed a deed of trust, embracing the lot and some personal property, to A. J. Cameron, trustee, to secure John H. Duncan and Isaac Burch, sureties on three bonds or sealed notes, payable to Robert Duncan, administrator of S. B. Owens, deceased, and also the notes themselves. On the 26th of August, 1872, the trustee sold and conveyed the property to Mrs. Wade, the plaintiff.
      H. C. Lindsey, in execution of the decree of the chancery court of Adams county, on the 24th of May, 1871, executed a deed for the same property to B. Hyman, the defendant. The deed recites that Lindsey was required by the decree to make the conveyance in accordance with a contract theretofore entered into between the parties -- that is, himself and Hyman. Hyman also read in evidence a deed executed to himself (after suit brought) by John Jennings Owens, who was the only heir of one S. B. Owens.
      The petition of Henry Duncan for letters of administration on the estate of S. B. Owens, deceased, was also read in evidence.
      A motion for a new trial was overruled. The jury was waived, and the case was tried on the law and facts by the court.
      In the action of ejectment, if both parties trace title to the same source, it is not necessary for the plaintiff to go further, and prove that it is good against all the world. Both litigants tracing their rights to a common origin, the inquiry is limited to the ascertainment of which has the elder and better title.
      At the time suit was brought Hyman was in possession by his tenant, Thompson. This possession may be legitimately referred to the executory contract with Lindsey, consummated into a legal title by the decree of the chancery court, and Lindsey's deed executed in pursuance of it in 1871.
      Having entered under Lindsey's title, and being protected by his covenants, he could not procure from another source an adverse and better title, and set it up in opposition to that under which he got possession, and to the prejudice of his vendor.
      When both parties derive title from the same person it is not competent for either, as a general rule, to dispute that title. That principle, when it applies, is an exception to the general rule that the plaintiff must prove a complete title in himself. Ordinarily, the defendant may rest on his possession merely or he may show an outstanding title in a stranger. In either case he will succeed, unless the plaintiff has shown such right of possession as is good against all the world. This rule has no application where both parties trace title to a common source. In that case the defendant cannot protect his possession by setting up a paramount title in another person, with which he has no connection.
      Here both parties derain title from Lindsey -- Mrs. Wade through the trust deed and purchase at the trust sale, Hyman by direct contract with Lindsey, and his conveyance in obedience to the chancery decree. In this aspect of the case the inquiry is, upon whom was Lindsey's title devolved? On that question the parties are antagonized, and there is no priority of title between them in such sense that Hyman would be estopped or precluded from obtaining whatever support he might from another and independent title. It was competent for Hyman to take a deed from John J. Owens, the heir at law of S. B. Owens, deceased. But, in order that it may avail him in his defense, he must show that S. B. Owens had a complete legal title, paramount to that received by him from Lindsey.
      The rule is, if the defendant did not derive his possession from the plaintiff, but claims adversely to her, he may buy in an outstanding title to defend his possession. But such title will not suffice unless the defendant shows that it was subsisting and available, on which a recovery could be had in ejectment. The deed from John J. had no greater effect than to transfer to the defendant such right as descended to him from his ancestor. What that right was, its quality and value, was the subject of proof. The only testimony conducing to show title in S. B. Owens came from the witness Torry, who deposed that S. B. Owens died in 1860, claiming to own the property, and in possession. In the absence of written muniments of title, mere possession with a claim of ownership does not suffice to establish a title, unless such possession had begun under color of right, and had continued long enough under the statute of limitations to consummate a title. The record is barren of evidence as to when the possession of S. B. Owens began, how long it continued, and under what claim it initiated. All that we know of it is that Owens died seized and possessed in 1860.
      We may conjecture that Lindsey bought the property at a sale by his administrator, for among the grounds of the motion for a new trial is the allegation of error in excluding the deed of the administrator to Lindsey, when offered in evidence. But the bill of exceptions omits to show that such evidence was offered and excluded. That ruling of the circuit court is assigned in this court for error, but we cannot notice it, as it is not certified to us by bill of exceptions.
      The plaintiff, Mrs. Wade, being a purchaser under the deed in trust to Cameron, executed in 1861, can refer her title back to the date of that incumbrance, so that her right takes rank and precedence from that time. All we know with certainty about Hyman's title is, that in 1871 Lindsey was under an obligation to convey the legal title to him, and did actually convey in 1872.
      It was thus shown in evidence that Mrs. Wade's acquisition of Lindsey's title was prior in time to any right derived from the same source, and that she ought to recover unless one or both of the propositions made by the defendants has been sustained, viz.:
      1. That the deed from John J. Owens, the heir of S. B. Owens, vested in him a perfect and paramount title. That, for the reasons already given, was not established in evidence.
      2. Unless, as objected by the defendants, the sale and conveyance by Cameron, the trustee, did not pass the title, because certain irregularities occurred in giving notice of the sale.
      It was in evidence that the trustee had observed all the requirements of the deed in that particular, when his proceedings were arrested by injunction at the suit of Hyman. After the injunction had been dissolved the property was again advertised and sold to the plaintiff. Among other things it was made the duty of the trustee to give ten days' notice to Lindsey. This was not done. Nor was it made certain that notice was posted on the court house door. It was proved that the trustee moved in the matter at the written request of one of the sureties on the bonds, and that the sum bid at the sale, less the expenses, was credited on one of them held by Mrs. Wade's attorney for her.
      It is true, as held in Walker v. Brungard, 13 S. & M. 763, that the power of the trustee to sell is conditional, and that he must pursue the directions prescribed. If he act unfairly, or goes contrary to the powers conferred, the grantor or other parties interested may arrest his steps or set the sale aside.
      But can Hyman, the defendant, complain of irregularities of the character evolved by the testimony? In Wightman v. Doe ex dem. Reynolds, 24 Miss. 675, it was held that only the parties to the trust deed, or some person interested therein, and injured by an omission to give the notice, or irregularities in that or other particulars, could object to the sale. "As to third persons, the sale will be regarded as valid." In Walker v. Brungard, suppose the controversy was between parties interested in the trust, and was begun before the sale was consummated by the conveyance; the general observations of the court must be construed with reference to that state of case.
      The conclusion from these views is that there is error in the judgment of the circuit court.
      It is reversed and cause remanded.
 

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