Scottish-American Mortgage Co. v. Bunckley

Citations

• 88 Miss. 641
• 41 So. 502

Syllabus

<p>1. Estoppel. Failure to assert title. Silence.</p> <p>Where one person executed a mortgage on lands, and thereby secured a loan in the presence and to the knowledge of another, the mortgagee cannot predicate an estoppel to claim the land of the mere silence of that other:</p> <p>(a-) If he were ignorant of his rights at the time he failed to speak; or</p> <p>(6) If his title were duly of record; or</p> <p>(c) If the mortagee did not rely upon what he said or did or left undone.</p> <p>2. Tenants in Common. Adverse possession. Statute of limitations. Mortgages. • Ouster.</p> <p>The execution by one of several tenants in common- of a mortgage on lands, purporting to convey the entire estate, possession not being taken under it, does not amount to an ouster, and does not start the statute of limitations against the other cotenants.</p> <p>3. Same. Removing clouds from title. Rents.</p> <p>Where one tenant in common conveyed his interest in- land to another, without an assignment of rents due at the time, and the grantee thereafter succeeded in a suit to remove clouds from the title, it was error to decrees him rents which were due before the conveyance on the interest acquired from his cotenant.</p> <p>4. Same. Partition. Chancery practice. Cross-hill.</p> <p>Defendants who file no cross-bill therefor are not entitled to partition of lands in an equity suit not contemplating partition.</p> <p>5. Res adjudicata. Matters not m issue.</p> <p>A former suit decreeing the complainant not to be the owner of land by virtue of certain deeds is not res adjudicata of a second suit by him, against the same defendants for the same land, based on entirely different grounds wholly independent of said deeds.</p>