McCarley v. Board of Supervisors

Mississippi Supreme Court October 15, 1880

McCarley v. Board of Supervisors, 58 Miss. 483 (Miss. 1880)

Campbell

Opinion of the Court

Campbell, J.,

delivered the opinion of the court.

The position of appellant, as holding the land described in his bill by virtue of his purchase, as described, is such as to preclude him from assailing the title he acquired, either for want of authority in those with whom he dealt, or because of insufficiency in the description of the land. In reference to the accidental failure to affix a scroll to the name subscribed to the note, we are disposed to follow the cases of Wadsworth v. Wendell, 5 Johns. Ch. 224; Thomas Manufacturing Company v. Lathrop, 7 Conn. 550 ; and Rutland v. Paige, 24 Vt. 181. In the first case cited, Chancellor Kent said: “The omission to affix a seal was a mere mistake, contrary to the intention of the parties ; for the instrument concluded with these words: ‘ In witness whereof I have hereunto set my hand and seal.’ ” He regarded these words as evidence of intent to make the instrument a sealed one, and treated it as such.

The note of appellant shows it was intended to be a sealed *487instrument, and a court of equity will not allow him to claim and obtain a benefit arising from the accident of a failure, through mere inadvertence, to do what the words written show was intended to be done, and which, if it had been done, would have precluded the possibility of the assertion of the right now set up by the appellant.

Decree affirmed.

Reference

Full Case Name: Mose McCarley v. Board of Supervisors of Tippah County
Cited By: 2 cases
Status: Published
Syllabus: 1. Deed of Trust. Want of title in grantor. Insufficient description of land. Estoppel. Where the purchaser of land, bought at a sale under a deed of trust executed by a third person, gives his own deed of trust on the land thus bought, to secure the purchase-money bid by him, he cannot, while claiming title through such sale, prevent the enforcement of his deed of trust on the ground that the trustee had no power to make the sale at which ho purchased, and he, therefore, acquired no title, nor that the deed of trust which it is sought to enforce is void because of an insufficient description of the land, such description being the same as that contained in the deed under which ho claims title. 2. PROlirssoRX STote. Intended to be sealed. Omission to affix seal. Effect thereof. A promissory note given by M. for the payment of a certain sum of money concluded with these words: “ Witness my hand and sea], this 11th day of J uly, 1872.” But no seal was affixed. After the expiration of six years from the maturity of the note, M. sought to enjoin its collection by setting up the statute of limitation of six years as against an unsealed instrument. Held, that the note shows that it was intended to be made a sealed instrument, and the accidental failure to affix the seal cannot defeat the intention of the parties, but the note must be treated as a sealed instrument.