Ladner v. Ladner , 2 Miss. Dec. 607 ( 1881 )

Opinion.

Per curiam:

The decree is too broad in that it cancels the patent issued to the appellant, whereas the appellee has no valid claim to more than an undivided two-thirds interest in the land. In order to correct this error and limit the decree to the right of the complainant in the bill, the decree will be reversed and the cause remanded for a decree below in accordance with this view.

The patent should be ordered to be cancelled and the appellant be enjoined from using or attempting to use it as to an undivided two-thirds interest in the land described.

Reversed and remanded.

1 Equity will, by injunction,- prevent a cloud on title by execution or judicial sale. Irwin v. Lewis, 50 Miss. 363; Christian v. O’Neal, 46 Miss. 659.

A conveyance by one tenant in common purporting to convey the whole estate, passes only his interest. (Code 1857, art. 7, p. 307.) His co-tenants may maintain a bill to cancel the conveyance as a cloud upon their interests. Williams v. Tucker, 47 Miss. 678.

Complainant is required to show that he is the legal or equitable owner of the land. If he does not do this, and his title is denied, he will fail, regardless of the defendant’s title. Walton v. Tusten, 49 Miss. 569; Handy v. Noonan, 51 Miss. 412; Griffin v. Harrison, 52 Miss. 824; Hart v. Bloomfield, 66 Miss. 100, 5 So. 620; Chiles v. Gallagher, 67 Miss. 413, 7 So. 208; Soria v. Stowe, 66 Miss. 615, 6 So. 317; Bank v. West, 67 Miss. 729, 7 So. 513; Ricks v. Baskett, 68 Miss. 250, 8 So. 514; Wilkerson v. Hiller, 71 Miss. 678, 14 So. 442; Pierce v. Hunter, 73 Miss. 754, 19 So. 660.

In an action to quiet title, where complainant’s title is put in issue, she must aver and prove that she is the owner of the property, either by a good legal or equitable title. Chiles v. Champenois, 69 Miss. 603, 13 So. 840.

In a suit to remove a cloud on title, the burden is on plaintiff to establish that he.himself has a perfect legal or equitable title. Stevens Lumber Co. v. Hughes, 38 So. 769.