Opinion
No. 33550.
February 20, 1939.
1. FRAUDS, STATUTE OF. Landlord and tenant.
Where power of attorney to make lease was not duly acknowledged, lease made by virtue of such power constituted in equity a contract to make a lease, even if void as a lease, and hence was admissible in ejectment action to show defendant's right to continue in possession (Code 1930, secs. 2949, 3343).
2. FRAUDS, STATUTE OF.
Contracts by an attorney in fact for the making of a lease are governed by the statute of frauds, not by the statute governing conveyances by attorneys in fact (Code 1930, secs. 2949, 3343).
3. FRAUDS, STATUTE OF.
Under amendment of statute of frauds requiring authorization of agent to be "in writing," former rule, that lease made by attorney in fact under oral authority is valid in equity as a contract to make a lease, is modified only by requirement that agent's authority be in writing (Code 1930, sec. 3343).
4. EJECTMENT. Landlord and tenant.
Though equitable defenses are not generally admissible in ejectment, possession by defendant under a contract of purchase or for a lease is a defense so long as defendant is not in default.
ON SUGGESTION OF ERROR. (Division A. May 1, 1939.) [188 So. 311. No. 33550.]1. EJECTMENT.
Under statute allowing a plaintiff in ejectment to prevail where he is legally entitled to the possession of the land, a defendant is not precluded from interposing an equitable defense (Code 1930, sec. 1427).
2. EJECTMENT.
A legal title will not prevail in ejectment as against a defendant in actual possession where defendant has a complete equitable title sufficient to draw to it the legal title.
3. ACTION.
Where the equitable estate of a defendant is such that he would be entitled in an equity court to have a transfer of the legal title, he may defend in an action at law brought by the holder of the legal title.
4. LANDLORD AND TENANT.
A contract to make a lease to a person in possession operates to vest an equitable estate for the specified duration of time.
5. ACTION.
There can be no recovery where plaintiff, to prevail, must repudiate or withdraw, for no other reason than his own volition, an existing right which he himself has validly granted to the opposite party.
6. ACTION.
To maintain any action or suit, there must be a right of plaintiff a wrongful violation of that right by defendant.
7. LANDLORD AND TENANT.
Where plaintiff's grantor had put defendants in possession of realty and had granted to them a valid contract to make a lease for a specified period of time, neither grantor nor plaintiff, who purchased realty when defendants were in actual possession, could contend that defendants were wrongfully in possession, since plaintiff's rights were no greater than those of grantor.
APPEAL from the circuit court of Sunflower county; HON. S.F. DAVIS, Judge.
Cooper Thomas, of Indianola, for appellants.
The lower court erred in excluding from evidence the original, or parent, lease contract between Antonio Conguista, through Paul Conguista, his agent and attorney in fact, as lessor, and defendant Hytken, as lessee, the renewal letter extending the life thereof, and the subcontracts between defendants Hytken and Andrews, inter se.
Thomas v. Ferrell, 184 So. 425; Richard v. Kings Daughters Sons, Circle No. 2, 182 So. 101; Palmer v. Fair Co., 140 Miss. 294, 105 So. 513.
The actual possession of land is notice to all the world of whatever rights the occupant really has in the premises and the vendor cannot convey to any other person without such person being affected with notice.
Frye v. Rose, 120 Miss. 778, 83 So. 179; Russell v. Scarborough, 155 Miss. 508, 124 So. 648; Bass v. Estill, 50 Miss. 300; Buck v. Paine, 50 Miss. 648; Wailes v. Cooper, 24 Miss. 208; Harper v. Reno, Freem. Ch. 323; Taylor v. Lowenstein Bro., 50 Miss. 278; Dixon Starkey v. Doe ex dem. Lacoste, 1 S. M. 70; Kirby v. Bank of Carrollton, 102 Miss. 190, 59 So. 10; Palmer v. Fair Co., 140 Miss. 294, 105 So. 513; Perkins v. Swank, 43 Miss. 349; Lyon Co. v. Carr, 119 So. 306, 151 Miss. 850; Breland v. Parker, 150 Miss. 476, 116 So. 879; Horton v. Misso, 157 Miss. 371, 128 So. 103; Stovall v. Judah, 74 Miss. 747, 21 So. 614; 66 C.J., page 1116, sec. 942, and page 1168, sec. 1014; Bratton v. Rogers, 62 Miss. 281; Levy v. Holberg, 67 Miss. 526, 7 So. 431; Kalmia Realty Ins. Co. v. Hardy, 164 Miss. 313, 145 So. 506.
The rule of law is admitted and recognized that since, in the making of a lease for a longer term than one year, it is essential that it should be by deed, the appointment of an agent to make such lease was also required to be by deed.
Lobdell v. Mason, 71 Miss. 937, 15 So. 44; Hutchinson v. Platt, 119 Miss. 606, 81 So. 281.
We must admit that the power or instrument drafted by Judge Everett, as attorney for Paul Conguista, in 1933, at the latter's request, was effectual to confer the necessary power on Paul Conguista to execute the lease with Hytken for the terms therein specified insofar as the language and terms used therein are concerned. We must admit further that under the undisputed evidence in this case that said power, as a deed, was "signed and delivered." The paper thus prepared by Judge Everett was handed to Paul Conguista, and by the latter forwarded to his father, Antonio Conguista, in the United States mails from Rosedale, Mississippi, by registered mail, with sufficient postage, and addressed to his said father thusly, "Antonio Conguista, Esquire, Cefalu, Italy," his postoffice address and where he lived in 1933 and through 1936. About thirty years later, said power came back through the mails to said Paul Conguista duly signed in the genuine handwriting of his said father. Without more being said, said facts conclusively show the same was "signed and delivered," even though the word "delivery" eo nomine was not used, and even though said instrument was not acknowledged.
10 R.C.L. 878, sec. 24; Jones on Evidence, Civil Cases, (3rd), page 56, sec. 52; 22 C.J. 97, sec. 36.
Should we concede, for the argument's sake merely, that the facts adduced on the trial did not conclusively show delivery, the law, again, would presume as much from the facts thus presented, for possession of a deed by a party claiming under the grantee is evidence of delivery to such grantee until the contrary is shown.
Morris v. Henderson, 37 Miss. 492; McAllister v. Richardson, 103 Miss. 418, 60 So. 570; Devereux v. McMahon, 12 L.R.A. 205; Burditt v. Colburn, 13 L.R.A. 676; Sections 1453 and 1587, Code of 1930.
Inasmuch as our court holds that a power of attorney to execute a lease of lands for more than a year must be by deed, we, therefore, state that the law as to deeds with reference to the necessity of acknowledgment and recordation controls as to said power of attorney. We know of no law or decision that, as to the parties, privies or those taking with notice, a deed between private persons or individuals need be acknowledged or recorded, except a conveyance from husband to wife, or vice versa.
Section 1944, Code of 1930; Snider v. Udell Woodenware Co., 74 Miss. 353, 20 So. 836.
The rules of law relative to deeds and the necessity of acknowledgments therefor are well established. Acknowledgment and recording are not made compulsory. They are only for the purpose of registration and constructive notice.
Mexican Gulf Land Co. v. Globe Trust Co., 125 Miss. 852, 88 So. 512; Hill v. Samuel, 31 Miss. 307; Finch v. Tanner, 2 Miss. Dec. 209; 1 C.J.S., page 780, sec. 6; Hutchinson v. Platt, 119 Miss. 606, 81 So. 281; Patton on Titles, page 674, sec. 201; 1 R.C.L., pages 253 and 257, sec. 3.
Our court has conclusively stated that the validity of a power of attorney is not dependent upon legal acknowledgment and recordation, but the statutes relative to powers of attorney, being Chapter 56, Code of 1930, in no instant or by any verbage expressly or mandatorily requires as a condition for the validity thereof for said powers to be acknowledged and recorded. The specific contention that said power of attorney should be acknowledged and recorded in order to be valid was made but was expressly overruled and found untenable in the case of Lobdell v. Mason, 71 Miss. 937, 15 So. 44.
Valentine v. Piper, 22 Pickering 85, 33 Am. Dec. 714; Caley v. Morgan, 114 Ind. 350, 16 N.E. 790; McAdow v. Black, 4 Mont. 475, 1 P. 751; Wilson v. Troupe, 2 Cow. 195, 14 Am. Dec. 458; Tyrell v. O'Conner, 41 A. 674, 56 N.J. Eq. 448.
We respectfully state that the learned trial judge was in error in the rulings made as to said power of attorney and its lack of validity or existence for the reason that it is patent that his exclusion of profferred evidence thereasto was based on an opinion that it was necessary under our laws for said power to be both acknowledged and recorded.
Plaintiff was put on notice of power of attorney and terms thereof because of (a) possession of premises by Hytken or subtenant, and (b) notice imparted by rental checks delivered by Hytken to plaintiff.
1 C.J.S., page 792, sec. 6 b (2); Ladnier v. Stewart, 38 So. 748.
Recorded copy of power was erroneously excluded by court, for (a) it was best evidence available, and admissible in ejectment proceedings.
Jones on Evidence, page 810, sec. 521; 22 C.J., page 832, sec. 965, and page 833, sec. 966; 17 R.C.L., page 1179, sec. 16; Harper v. Tapley, 35 Miss. 506.
(b) It was admissible as secondary evidence, for proper foundation had been first laid, and further plaintiff did not object on this point.
Harper v. Tapley, 35 Miss. 506; DeLane v. Moore, 14 How. 253, 14 L.Ed. 409; Winn v. Patterson, 9 Pet. 663, 9 L.Ed. 266.
(c) No question as to the sufficiency of the proof showing existence of power.
Harper v. Tapley, 35 Miss. 506; Newman v. Bank, 67 Miss. 770, 7 So. 403; 22 C.J. 86, sec. 28.
Because Hytken and/or subtenant Andrews in possession and occupancy of premises, and not in default as to rent, under the original lease contract, which if not properly a "lease" was at least "contract for lease" for based on power of agency in writing, and not within statute of frauds, empowering Paul Conguista to so execute — if we argumentatively conceded that power of attorneys must be acknowledged and recorded to be valid, appellant, defendants Hytken and Andrews, should have prevailed in lower court.
Conceding power of attorney proper must be acknowledged and recorded, original lease executed by agent who had authority in writing, and hence said agency instrument not within statute of frauds.
Chapter 152, Laws of 1926; Rogers v. Foley, 139 Miss. 327, 104 So. 78; Curtis v. Blair, 26 Miss. 322; Lobdell v. Mason, 71 Miss. 937, 15 So. 44; Hopper v. McAllum, 87 Miss. 441, 40 So. 2; Hutchinson v. Platt, 119 Miss. 607, 81 So. 281.
Hytken and subtenant Andrews in possession and occupancy of premises under at least a "contract for a lease," if not "lease," and not in default as to rent, and hence entitled to retain possession as against plaintiff, which possession is protected even in ejectment proceedings, or at law.
Moring v. Ables, 62 Miss. 263; Bolton v. Roebuck, 77 Miss. 711, 27 So. 630; Lobdell v. Mason, 71 Miss. 937, 15 So. 44; 66 C.J. 547, sec. 89.
Bianca is not purchaser without notice, because of said possession by Hytken and subtenant, and because of contractual notice imparted by rent checks from Hytken which he accepted.
Because of plaintiff's permitting Hytken and subtenant Andrews to remain in possession of premises after he acquired title thereof, and acceptance of rental checks from Hytken, both before and after, institution of suit, bearing notations thereon substantially reading "Rent as per Contract and Agreement," plaintiff is estopped to bring this suit, as he thereby adopted and ratified original lease contract with Hytken as made by Paul Conguista and is bound thereby, regardless of whether power of attorney or agency was defective, or not acknowledged or recorded, or any irregular or illegal incidents surrounded said power or its procuration.
Aaronson v. McGowan, 180 So. 738; 2 C.J., page 500, sec. 120; 35 C.J., page 1169, sec. 445; Sanders v. Sutlive Bros., 174 N.W. 267, 6 A.L.R. 1053; Witherspoon v. State, 138 Miss. 310, 103 So. 134; Planters Mer. Co. v. Armour, etc., 109 Miss. 470, 69 So. 293.
It cannot be doubted then that under the modern rules of agency any written contract, not required to be under seal, is binding on the principal, if from the instrument itself it is apparent that the agent was making the contract for the principal and it matters not whether the agent puts his name before that of the principal or afterwards. As Restatement on Agency puts it even in an instrument required to be under seal, the modern rule is if the principal "be named as such therein" it is sufficient. It does not say signed in name of principal. The rule, if it ever was otherwise, is a relic of the distant past when in some instances form was considered more important than substance, and courts forgot justice in their slavery for form, — blinding themselves in their construction of contracts to the intention of the parties.
Restatement on Agency, sections 154, 155, 156, 157 and 158; American Jurisprudence on Agency, sections 240 and 241; C.J.S., page 1351, sec. 128 b (1), and sec. 131.
Any defendant who can show that he has the right to immediate possession of land has a good defense to an action of ejectment. It is not necessary to draw any fine distinction between legal and equitable defense. The test is: Is the defendant in rightful possession? If he is, then the plaintiff in ejectment has not shown that "he is legally entitled to the possession of the land sued for" (Section 1427 of the Code of 1930) and he is not entitled to recover.
That is why our court has clearly decided that the holder of a bond for title, in possession of the premises and not in default, cannot be ousted in ejectment. That principle is not in conflict with another general principle that equitable defense cannot be made in ejectment. They are two distinct principles of law. One is not an exception to a general rule. The reason for the general rule against equitable defense in ejectment is that the defendant is not oft times entitled to immediate possession until he receives other relief which only a court of equity can grant. In other words, his right of possession does not exist when the suit is filed and only arises after granting of independent relief in a court of equity. But that rule does not exist in any case if the defendant shows the plaintiff is not entitled to immediate possession and that the defendant is so entitled.
66 C.J., page 547, sec. 89.
The only essential difference between a bond for title, which is a contract for a deed, and a contract for a lease, is that one gives the right to a deed and the other to a lease. In both cases if the holder is given possession in the instrument, he is in rightful and legal possession. And that is a perfect defense in ejectment.
Brown v. Weast, 7 How, 181; Land v. Kern, 52 Miss. 349; Barner v. Lesley, 61 Miss. 392; Bolton v. Roebuck, 77 Miss. 710, 27 So. 630; Morgan v. Blewitt, 72 Miss. 903; Graham v. Warren, 81 Miss. 330; Goyer Cold Storage Co. v. Wildberger, 71 Miss. 438, 15 So. 235.
It is significant that in Kirk v. Hamilton, 26 L.Ed. 79, holds that equitable estoppel is a good defense in ejectment, and bases it on the ground that since ejectment involves the rightful possession of premises, the plaintiff by his conduct had given to the defendant the right to the immediate possession of the premises. That of course is our situation here. If a man by conduct amounting to estoppel can give rightful possession, then he can do so by agreement.
We are not contending that the general rule is that equitable defenses are proper in ejectment. In all those cases where a defendant, to show his right to immediate possession, must establish a trust, must have a conveyance declared fraudulent, or must set up an equitable claim, in all of which only a court of equity can grant that relief, then such defense cannot prevail. There is a good reason for this. The defendant must, in each case, show his right to the immediate possession or the reverse that the plaintiff is not entitled to the immediate possession. In the cases mentioned, the defendant has failed to show either of these, but it is likewise the general rule, and not the exception, that whenever the defendant is in rightful possession of the premises no plaintiff can prevail against him in ejectment, no matter how perfect his title may be. So says the statute. So says our Supreme Court. So says the United States Supreme Court. Moody Davis, of Indianola, for appellee.
The lease in controversy, and on which the defendants relied, was signed "Paul Conguista, Agent of and Attorney in fact for Antonio Conguista, Lessor." It was not signed by Antonio Conguista, who owned the property at that time. The defendants (appellants here) offered in evidence the record of what purported to be the letters of attorney from Antonio Conguista to Paul Conguista authorizing him to execute the lease relied on, yet the same was not acknowledged nor proved by Antonio Conguista.
To the introduction of the above mentioned record, the plaintiff (appellee here) objected, which objection the lower court sustained. Hence the first question is whether the lower court erred in sustaining the objection. Of course, this was no error.
Sections 2135 and 2139, Code of 1930; Ligon v. Burton, 40 So. 555; Smith v. McIntosh, 170 So. 303; Sec 2949, Code of 1930; Holmes v. Carman, Freem. Ch. 408; 2 Am. Jur. 197, sections 245 and 246; Restatement, Agency, Sections 151 and 158; 2 C.J.S., page 1351, sec. 128 (b), sec. 130 (a), and Sec. 131; McCaleb v. Pradat, 25 Miss. 257; Lutz v. Linthicum, 8 Pet. (U.S.) 165, 8 L.Ed. 904.
The lease was invalid because it was not formally executed in the name of the principal, and Section 2949, Code of 1930, does not make it binding unless the appointment was duly acknowledged or proved and recorded, the words "or proved" meaning proved in the manner conveyances of land are required by law to be proved or acknowledged. (See Section 1180, Code of 1880). The power of attorney in this case was not acknowledged, nor proved, nor witnessed, nor recorded.
It cannot be said in answer to the foregoing that the lease contract was a simple contract, or that the foregoing applies only to sealed instruments and the use of seals has been dispensed with in this state. The law of this state is that the making of a lease for a longer term than one year must be by deed, and further that the contracts and conveyances referred to in Section 2949, Code of 1930, are those which Section 2111, Code of 1930, requires to be in writing, signed and delivered.
Lobdell v. Mason, 15 So. 44; Hutchinson v. Platt, 81 So. 281.
The case at bar is not a case in equity and it is not an action of unlawful entry and detainer, but it is an action in ejectment. This being true, only the legal title to the premises in question is involved, and appellants could not interpose any equitable defenses. As to this the court said, in Morgan v. Blewitt, 72 Miss. 903, 17 So. 601; "In ejectment, in a court of law, only the legal title is involved, and equitable defenses are inadmissible. There may be cases where it would be very convenient and advantageous, and would seem to be proper, to permit an equitable defense in a court of law in resistance of an action to recover land; but the difficulty of drawing the line between cases where such defense may or may not be allowed suggests the wisdom of denying it in all cases, and leaving parties to the appropriate forum for the assertion of equitable rights; and so long as the state maintains two sets of courts to administer justice, where one would do it better, and without questions as between law and equity, it is the duty of the courts to maintain the distinction between legal and equitable rights and remedies, and that each shall avoid any invasion of the province of the other."
Brown v. Weast Heirs, 7 How. 181; Dixon v. Porter, 23 Miss. (1 Cushm.) 84; Graham v. Warren, 81 Miss. 330, 33 So. 71; Littelle v. Creek Lbr. Co., 54 So. 841.
This rule of law just mentioned was also affirmed and recognized by this court in Lobdell v. Mason, 15 So. 44, and in rendering its decision in that case the court made it clear that it was only because equitable defenses could be interposed in an action of unlawful and forcible entry and detainer that they were holding as they were, and that, if the action had been in which the legal title was involved then such equitable defense could not have been availed of. As to this the court said: "The action of unlawful entry and detainer is a statutory action and is given to anyone deprived of the possession of land . . . The action is possessory only and does not involve title . . . and can only be brought in cases specified in the statute . . . the defendant is in possession, claiming under a contract by which she is entitled to compel the specific execution of a lease, and consequently is also entitled to the possession of the premises. A different question would be presented if the action was one in which the title to the property was involved."
In view of this we submit that the case at bar is governed by the foregoing. Section 2949, Code of 1930, declares what is necessary for the lawful appointment of an agent to execute for his principal the conveyances required by Section 2111, Code of 1930, to be in "writing, signed and delivered." The lease in the case at bar is one of the conveyances that comes under Section 2111, Code of 1930, and according to Lobdell v. Mason, supra, Section 2949, Code of 1930, requires that the appointment of such an agent to make such conveyances must be in writing duly executed by the principal and acknowledged or proved in the manner conveyances of land are required by law to be executed and acknowledged or proved. In addition thereto, Section 2111, Code of 1930, requires that the lease in question be by deed. Hence, the appointment of an agent to make such a lease must, independent of statute, also be of equal solemnity or by deed.
Humphrey v. Wilson, 43 Miss. 328; Adams v. Power, 52 Miss. 828; Hutchinson v. Platt, 81 So. 828; 2 Am. Jur., pages 74 and 75, secs. 91 and 94; 2 C.J., pages 455 and 457, secs. 55 and 61, and page 459, sec. 64.
Since the decision in Lobdell v. Mason was rendered, the legislature has seen fit to add an additional requirement to the appointment of an agent to execute for his principal the conveyances required by Section 2111 of the Code of 1930 to be by deed, and that additional requirement is that the appointment of such agent must also be recorded.
Sections 2111 and 2949, Code of 1930.
It may be true that if our statute of frauds had not been amended by Chapter 152, Laws of 1926, and provided, of course, if A. Conguista lawfully authorized Paul Conguista to execute the lease in question, such lease may have been, under the decisions rendered in Lobdell v. Mason, 15 So. 44, and Hutchinson v. Platt, 81 So. 281, valid in equity as a contract for a lease. But the action at bar being an action in ejectment this defense was not available to the appellants and they could not interpose such a defense.
Dixon v. Porter, 23 Miss. (1 Cushm.) 84; Morgan v. Blewitt, 72 Miss. 903, 17 So. 601; Brown v. Weast's Heirs, 7 How. 181; Graham v. Warren, 81 Miss. 330, 33 So. 71.
A ratification of an act must be of equal solemnity with the act done. The least in this case, by statute, had to be by deed and any ratification thereof also must be by deed.
2 Am. Jur., 172 and 173, sec. 215; 2 C.J.S., page 1088, sec. 45, and page 1091, sec. 46 (c) and (d).
The record presents no such ratification, and certainly no estoppel under the rule stated in Lucas v. New Hebron Bank, 180 So. 611, even if such pleas were available to appellants in the case at bar, which they are not.
Moody Davis, of Indianola, for appellee on Suggestion of Error.
Comes appellee, by his attorneys, and respectfully suggests that this court erred in rendering its opinion herein and the judgment entered thereon, in that the court failed to apply the law of this state to the facts presented by the record; and more particularly erred in holding that the possession of lands under a void lease, which lease would be in equity valid as a contract to make a lease, is admissible as a defense to an action of ejectment at law, such being an exception to the general rule that equitable defenses are not admissible to an action of ejectment.
The opinion in the case at bar does not hold nor can it be said that appellants have a legal right or title to the possession of the land involved. To the contrary the opinion complained of states that, "if the lease here under consideration is void as such, as to which we express no opinion, it is valid in equity, as a contract to make a lease . . ." At the most, as this court undoubtedly recognizes, the only right, claim, or title that appellants have in the case at bar is an equitable right or claim to remain in possession. Now by applying the law of this state to these facts, as this court fully recognizes it must do regardless of the consequences, but one conclusion can be reached, viz: appellants claim or title is but an equitable one and cannot be availed of in an action of ejectment at law.
Morgan v. Blewitt, 17 So. 601, 72 Miss. 903; Davis v. Davis, 72 F. 81, 18 C.C.A. 438; Brown v. Weast's Heirs, 7 How. 181; Bonner v. Lessley, 61 Miss. 392; Graham v. Warren, 33 So. 71, 81 Miss. 330; Littelle v. Creek Lbr. Co., 54 So. 841, 99 Miss. 241.
If in Bolton v. Roebuck, 77 Miss. 710, 27 So. 630, the bond for title (contract to convey) had been void, then Roebuck would have had no legal right and he would have had to resort to chancery to enforce such rights as he might have had. But as it was Roebuck had a good and valid contract agreeing to convey him land and which valid contract gave him the right to occupy the land until the conveyance was executed. But such is not true in the case at bar.
In the absence of any express or implied provision therefor a bond for title or contract to convey land does not carry with it the right to the possession of land until the contract has been consumated, it being only an agreement to convey.
66 C.J. 1034, sec. 784; 27 R.C.L., page 463, sec. 177, and page 549, sec. 285; The Agricultural Bank of Miss. v. Rice, 11 L.Ed. 224; Moody v. Farr's Lessee, 33 Miss. 192.
It was only by virtue of the fact that Roebuck was by a valid contract vested with the legal right of possession to the lands that he could plead his claim as a defense to an action of ejectment. His right was a legal right and entirely different from the rights of the appellants in the case at bar, who according to the opinion complained of possess only an equitable right or title.
Littelle v. Creek Lbr. Co., 99 Miss. 241, 54 So. 841.
As far back as 1843 this court held in Brown v. Weast Heirs, 7 How. 181, that at common law an equitable defense is not available in an action of ejectment, the only exception being that of a resulting trust.
Rice v. Wright, 46 Miss. 679; Bonner v. Lessley, 61 Miss. 392; Lockhart v. Camfield, 48 Miss. 470; Graham v. Warren, 33 So. 71; Littelle v. Creek Lbr. Co., 54 So. 841.
Appellants right to possession, if any, is based solely and alone on a void lease, and it will be noted that counsel for appellant do not, and could not, argue that by virtue of this void lease appellant is "legally entitled to the possession of the land sued for and demanded." Yet, appellee, who obtained his valid deed from the same source from which appellant obtained his void lease, is, by virtue of that valid and legal deed, legally entitled to the possession of the land sued for and demanded.
Under the old line of Mississippi cases it was only when a party set up a trust that an equitable defense was admissible. Yet counsel say this is not now admissible. We think this is correct. Then counsel say that if the defendant must set up an equitable claim before he can establish his right to possession then such a defense is not admissible. Such being true, what then does appellant expect this court to reverse the case at bar on.
The legislature finally passed a law in 1892 to settle the question once and for all and to do away with all the confusion brought about by the earlier cases. The more recent cases define and limit the doctrine (if it can be said there was such a doctrine after 1892) in keeping with the intent of the legislature; and for this reason we find that for the past forty seven years, the cases have been in perfect harmony, and that the applicable law remains clear, unambiguous and in perfect accord with the statutory law on ejectment.
The first case that attempts to lay down a definite rule on the doctrine under discussion is Brown v. Weast, 7 How. 181, decided by this court in 1843. In fact it is this case that creates this doctrine. In Brown v. Weast, an action of ejectment, the lower court in effect instructed the jury that a defendant having an equitable title cannot set such equitable title up against the legal title of the plaintiff. But on appeal the Supreme Court held: "We are of the opinion that Weast held as a trustee for Brown; that Brown having paid the purchase money it is a satisfied trust, and being such, neither he (Weast) nor his heirs can maintain this action for possession."
Thompson v. Wheatley, 5 S. M. 499; Dixion v. Doe, 23 Miss. 84; Coulter v. Richards, 24 Miss. 278; Servis v. Beatty, 32 Miss. 52; Moody v. Farr, 33 Miss. 192; Heard v. Baird, 40 Miss. 793; Lockhart v. Camfield, 48 Miss. 470; Rice v. Wright, 46 Miss. 679; Bonner v. Lessley, 61 Miss. 392.
At the most Bonner v. Lessley marks the end of this old line of cases. From this old line of cases we see that much confusion was brought about by the doctrine created by Brown v. Weast. Two years after the doctrine was originated this court in Thompson v. Wheatley stated that it was of dangerous tendency to give the doctrine farther latitude or extent, and caused the plaintiff to dismiss and proceed in equity.
Section 1626 of the Code of 1892 reads as follows: "The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the land sued for and demanded."
The enactment of this section into the Code of 1892 marks the beginning of this new line of cases, in which cases it will be seen that this court has adhered to the new principle without deviating therefrom one iota, although, in two of the cases which were decided, this court could have and possibly should have followed the doctrine first announced in Brown v. Weast, if it had not been for this section of the code, and possibly, the earlier cases, such as Rice v. Wright, overruling this dangerous doctrine.
The first case before the court after the adoption of the Code of 1892 in which this doctrine was presented was the case of Edwards v. Edwards, 15 So. 42, which was before the court in 1894. This was an action for "recovery of land" filed in the circuit court. Whether it was an action of ejectment the opinion does not state, but from the statement of the facts in the opinion we presume it was an action of ejectment. In this case the defendant claimed to be the owner by virtue of a resulting trust, it being his money that went into the purchase of the land. On the trial in the lower court, the following took place: "The defendant filed his petition in the court below, praying that the cause might be transferred to the chancery court, to the end that he might interpose his claim to have the title of the land divested from the plaintiff, and vested in himself, to which relief he insists he is entitled in equity. The court below rightfully declined to transfer the cause as prayed. In this action the legal title to land is alone involved, and that should be tried in a court of law. Whatever equitable rights the defendant may have will remain to him unimpaired by the result of this action, and may be effectually asserted in a court of equity."
Morgan v. Blewitt, 72 Miss. 903; Graham v. Warren, 81 Miss. 330; Bolton v. Roebuck, 77 Miss. 710; Griffin Co. v. Jurnigan, 143 So. 342, 170 Miss. 343; Littelle v. Creek Lbr. Co., 99 Miss. 241.
The legislature adopted the Code of 1930 and brought Section 1626, Code of 1892, and Section 1801 of the Code of 1906 into the Code of 1930 as Section 1427, thereof.
From what has gone before and from the number of cases heretofore decided by this court and in view of Section 1427 of the Code of 1930, we see no reason why this court should have any difficulty in deciding to sustain the suggestion of error filed herein. As we see it this court is not called upon to determine "under which of the two foregoing lines of cases does" the case at bar fall, for the very obvious reason, that, if there ever were two lines of cases, the first line or the old line was done away with by the legislature in adopting Section 1626, Code of 1892, and by bringing that section forward into the Codes of 1906 and 1930. And if this be not a fact, then this court has overruled the "old line" of decisions by the more recent cases referred to.
Appellant being in possession of the land sued for by a void lease, which may in equity be considered as a contract for a lease, his only right is an equitable one. The legal right to possession as contradistinguished from this equitable right is in the appellee and according to Section 1427, Code of 1930, appellee may maintain an action of ejectment and recover this possession. Under Morgan v. Blewitt, Graham v. Warren, Littelle v. Creek Lumber Co., Moody v. Farr, Heard v. Baird and Rice v. Wright, all supra, to say nothing of the other authorities mentioned, the appellant cannot defeat appellee's action of ejectment with any equitable claim. If appellant has any equitable right he must submit to this judgment in ejectment and proceed in equity to enforce such rights as he may have.
This is an action of ejectment by the appellee to recover from the appellants the possession of a house and lot in Indianola, Mississippi. In support of his claim to possession of the property, the appellee introduced in evidence a deed to him thereto from Catherine Conguista, executed on September 9, 1936, who had purchased it from Antonio Conguista, in July, 1936, both of whom are citizens and residents of Italy. The appellants then introduced in evidence a two-year lease to the property to the appellant, Hytken, with an option for the renewal thereof for a period of not exceeding three years, at a monthly rental of $15, executed on May 14, 1936, for and in the name of Antonio Conguista, the then owner of the property, by Paul Conguista, as his attorney in fact; that Hytken immediately entered into possession of the property and paid the rent thereon when due to Antonio Conguista's agent until it was purchased by the appellee, and thereafter to him. They then introduced a record of the chancery clerk's office setting forth Paul Conguista's power of attorney from Antonio Conguista, but, as it was not acknowledged, it was not properly of record, and, on objection by the appellee, was excluded from the evidence. The appellants then introduced parol evidence that the original of his power of attorney had been lost, but was identical with the record copy thereof, and that the signature thereto was that of Antonio Conguista, but was identical with the record copy thereof, and that the signature thereto was that of Antonio Conguista, that it had been prepared by an attorney at law in Indianola, mailed to Antonio, and thereafter received by the attorney in due course of mail, and delivered by him to Paul.
On objection by the appellee this lease and its accompanying power of attorney were excluded by the court. In support of this ruling the appellee says: (1) The lease was void as such for the reason that Paul Conguista's letters of attorney were not "acknowledged or proved and recorded" as required by Section 2949, Code of 1930; (2) the lease if void as such cannot be held to be a contract to make a lease for the same reason, and; (3) if the lease should be held to be a contract to make a lease the appellants' rights thereunder are equitable only, and that equitable defenses are not admissible in an action of ejectment.
The first of these questions may and will be pretermitted and no opinion expressed thereon for the reason that we are of the opinion that under the cases hereinafter cited the lease, if void as such, constitutes in equity a contract to make a lease, and is admissible in evidence in support of the appellants' claim to continue in possession of the property.
Section 2949, Code of 1930, according to Lobdell et al. v. Mason, 71 Miss. 937, 15 So. 44; Hopper et ux. v. McAllum, 87 Miss. 441, 40 So. 2; and Hutchinson v. Platt et ux., 119 Miss. 606, 81 So. 281, has no application to contracts by an attorney in fact for the making of a lease, but that such contracts are governed by Section 3343, Code of 1930. That section provides:
"An action shall not be brought whereby to charge a defendant or other party:
. . . . . . .
"(c) Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year;
. . . . . . .
"Unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing."
The words "in writing" at the end of the section first appeared therein by Chapter 152, Laws of 1926. In Lobdell et al. v. Mason, supra, decided before this amendment to the statute was made, this Court held that a lease for more than a year made for his principal by an attorney in fact under verbal authority so to do was void as a lease but valid in equity as a contract to make a lease. The only change in this decision wrought by the addition of the words "in writing" to the statute is that the agent's authority must now be in writing. It follows that if the lease here under consideration is void as such, as to which we express no opinion, it is valid in equity as a contract to make a lease, the agent's appointment being in writing.
It is true that equitable defenses are not generally admissible in an action of ejectment. This Court, however, and some others recognize this exception thereto, viz: "possession by a defendant under a contract of purchase, so long as he is not in default." 19 C.J. 1084. Bolton v. Roebuck, 77 Miss. 710, 27 So. 630. There can be no difference in this respect between a contract of purchase and a contract for a lease.
The lease and power of attorney should have been admitted in evidence.
Reversed and remanded.
In our original opinion we held that although it might be conceded that appellants' lease was invalid as a legal lease, it was sufficient as a contract to make a lease, which contract would be fully enforceable in equity, and we thereupon cited and relied on Bolton v. Roebuck, 77 Miss. 710, 27 So. 630, wherein it was held that possession under a bond for title was a good defense in ejectment, although such a defense might in some of its aspects be denominated as equitable; and we said, in such reliance, that there can be no difference in this respect between possession under a contract for the purchase of the land as against possession under a contract for the lease thereof.
Appellee has filed an able and elaborate suggestion of error in which he takes the position that since our present statute, Section 1427, Code 1930, as now worded, allows a plaintiff in ejectment to prevail where he "is legally entitled to the possession of the land," no defense whatever is available which in its nature is equitable. But this particular statute adds nothing to the law in this respect, as it already existed from the beginning of the jurisprudence of this state. See Winn v. Cole's Heirs, Walk. 119. The present statute adds nothing in the respect mentioned to what was the law when Bolton v. Roebuck was decided. And all along down the line it has been said that as against a defendant in actual possession the legal title will not prevail in ejectment when the defendant "has a complete equitable title sufficient to draw to it the legal title." Land v. Keirn, 52 Miss. 341, 351, citing Lockhart v. Camfield, 48 Miss. 470, 484, and Thompson v. Wheatley, 5 Smedes M. 499. Or, as expressed in Bonner v. Lessley, 61 Miss. 392, 397: "Where the equitable estate of the defendant is of such character that he would be entitled in a court of equity to have a transfer of the legal title, that he may defend in an action at law brought by the holder of the legal title.
Nothing new was announced, therefore, in Bolton v. Roebuck, supra; nor does appellee contend that it was erroneously decided. He says, however, that in that case the defendant had an equitable estate, by reason of the legal contract to convey the lands, and cites the recent case, Griffin Co. v. Jernigan, 170 Miss. 343, 154 So. 342, 344, as being analogous in principle, wherein it was said: "It has long been the settled rule in this state that, when possession has been delivered to the vendee under a binding contract of sale and purchase, and so long as that contract remains in force, the retention of title by the vendor until purchase money paid in full is in legal effect the same as conveying the title and taking security by mortgage," — citing previous cases. But appellee says that appellants here have only an equitable right as distinguished from an equitable estate.
In Collins v. Wheeless, 171 Miss. 263, 267, 157 So. 82, we said that a lease operates as a demise or conveyance of the property for a specified period of time, citing Rich v. Swalm, 161 Miss. 505, 515, 137 So. 325. If a contract to make a sale of land to a person in possession operates to vest an equitable estate, it follows that a contract to make a lease to a person in possession operates also to vest an equitable estate, — for the specified duration of time, and in a sufficient measure to satisfy the rule.
But back of all this, in so far as the present case is concerned, lies the fundamental principle that no man may recover in any action or suit, whatever may be its nature, when so to do, and in order to prevail therein, he must repudiate or withdraw, for no reason other than his own volition, an existing right which he himself has validly granted to the opposite party. In order to maintain any action or suit there must be (1) a right on the part of the plaintiff, and (2) a wrongful violation of that right by the defendant. Both elements are absent in this case, so far as the present record is concerned. 1 C.J.S., Actions, section 1, p. 939; 1 Am. Jur. pp. 417-419.
Here the plaintiff's grantor had put appellants in possession and had granted to them a valid contract to make unto them a lease for a specified period of time. The grantor could not eject the occupants who went into possession under him, and under such a contract with him which contemplated a continuance of that possession. He could not say that he was entitled to possession as against those he had himself put into possession under such a contract. Under his contract and delivery of possession he had himself agreed by his own act that appellants were rightfully in possession, wherefore he could not say by an ejectment action, or any other action, that they were wrongfully in possession. And since appellants were in actual possession at the time of appellee's purchase, his rights against appellants are no greater than those of the original grantor.
Suggestion of error overruled.