Hytken v. Bianca , 186 Miss. 323 ( 1939 )

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.