William M. Wildy v. Doe, ex dem. Moses H. Bonney, 26 Miss. 35

Mr. Justice Fishbk delivered the opinion of the court. This was an action of ejectment tried at the May term, 1850, of the circuit court of Yazoo county, in which the plaintiff below obtained a verdict and judgment. A motion was made for a new trial, which was overruled by the court, when a bill of exceptions, containing the testimony given on the trial, was taken. The land in controversy is shown to have been part of the inheritance of Mrs. Pierce, wife of Marcus Pierce. They, on the 29th of June, 1841, conveyed by a quitclaim deed, the land to one A. C. Hall.

This deed contained no separate acknowledgment as to the wife, and, therefore, only passed the interest which the law, by virtue of the marriage, vested in the husband. Pierce died sometime during the year 1844. Hall, after Pierce’s death, still continued in possession, and while thus in possession, the sheriff of Yazoo county having an execution against him, levied on and sold the land by-virtue of the same, when it was purchased by Moses H. Bonney, the plaintiff’s lessee.

After this purchase, Hall made a verbal lease of the land to Wildy, the plaintiff in error, who was to pay rent to Hall, and return to him possession of the land. On the 6th of March, 1849, before this action was commenced, Mrs. Pierce conveyed the land to Laurena Wildy, wife of the plaintiff in error, and to one William Hall. The court, at the instance of the counsel for the plaintiff below, instructed the jury, that Wildy, having leased from A. C. Hall, could not dispute his title, and could not set up a title in a third person.

The first question presenting itself for adjudication is, What interest had Hall in the land at the time of the sale by the sheriff and the purchase by Bonney? “By the common law, the alienation of- a husband who was seized in the right of his wife, worked a discontinuance of the wife’s estate, till the statute of 32 Henry 8, c. 28, provided that no act of the husband alone shall work a discontinuance of, or prejudice, the inheritance or freehold of the wife; but that after his death, she or her heirs may enter on the lands in question.” 3 Bl. Com. 372.

This provision of the English statute has been incorporated into the statute law of this State. Rev. Code, 450. By it the interest which A. C. Hall acquired under the deed, was no greater than that which the law vested in the husband, and his conveyance could have no operation to defeat either the right of property or of possession which on his death reverted to the wife. Hall’s title to the land was terminated by the death of Pierce, and his possession thereafter was only such as the person taking in reversion might permit him to enjoy.

It is said by the counsel for the plaintiff in error, that Hall, after the death of the husband, was a tenant at sufferance of the wife.

Whether he was, according to correct definition, such tenant or not, it is clear that his interest was not greater; and if he did not hold possession as a tenant at sufferance, which is said to be a possession enjoyed by the laches of the landlord, he held by deforcement, which is any species of wrong whatsoever whereby he that has the right to the freehold is kept out of possession, and applies mainly to a case where the party has the right of property, but never had the actual possession under that right. 3 Bl. Com. 173. In this case the right of property and right of possession were complete in Mrs.

Pierce at the time of the purchase by Bonney. These rights were such that she could sell and convey them, while Hall, or those claiming under him, were in possession. Day & Prentiss v. Cochran's Heirs, 2 Cushm. 261. It has been clearly shown that Hall had, at the date of the execution sale, no estate whatever in the land. His interest was only such as could be enjoyed by a tenant at sufferance. Such interest is not capable of transfer or transmission. 4 Kent, 117. The sheriff’s deed could convey no more than Hall’s own deed could, which, under the authority, could convey nothing.

It is thus clearly shown, that no title whatever passed by the sheriff’s deed to Bonney. But it is said that Hall, after the execution sale, having made a lease to Wildy, that he (W.) is estopped to deny the title of his landlord, and that he (Wildy) is in law the tenant of Bonney. It is a very general rule of law, that the tenant shall not deny the title of his landlord. The relation of landlord and tenant is created by contract.

Bonney was, in fact, no party to the lease; and if he be a party by operation of law, it must be because he, at the time it was made, had the title to the land, and therefore the lease was a fraud on his rights. We have shown that he had no title whatever. He could claim no more than Hall himself could convey, and was bound by every estoppel which bound Hall. What, then, was Hall’s attitude? By taking a deed conveying so much of the wife’s inheritance as the marriage vested in the husband, he admitted her title in reversion if she survived him. This Hall will not be allowed to deny.

The purchaser claiming under him at execution sale, and the tenant in possession, are bound by the same estoppel. Her title vested on the death of the husband, and the possession of Hall and all claiming under him, was only an enjoyment of her title in reversion, and to that extent a wrong committed on her rights; and not to allow the defendant below to show that the person in reversion had transferred her title, would be denying to her the right to sell. If she had the right to sell, the party purchasing had the right to enjoy the land purchased.

And, moreover, it is impossible to permit Bonney to enjoy any interest whatever in the land, unless it be an interest carved out of the, estate after it vested in reversion in Mrs. Pierce. Hall had no interest to sell, or which could be sold. His possession was only the enjoyment of her title, either by laches on her part, or by wrong on his part. There is no other but her title shown in controversy. We are of opinion that the court below erred in the instruction to the jury, and therefore reverse the judgment and remand the cause.