ESTOPPEL by Silence.—If a person, by the execution of a mortgage on land, secures a loan in the presence and with the knowledge of another, the mortgagee cannot successfully set up an estoppel against such other to claim the land from the fact of his mere silence, if he was ignorant of his rights at the time, or if his title to the land was duly recorded, or if the mortgagee did not rely upon his acts or conduct. (p. 764.)

COTENANCY — Limitations - Ouster.-A mortgage of the whole estate executed by one cotenant alone, possession not being taken under it, does not constitute an ouster nor start the statute of limitations to running against the other cotenants. (p. 766.)

COTENANCY-Conveyance-Rents.-If one cotenant conveys his interest in land to another cotenant without assigning the rents due at the time, and the grantee succeeds thereafter in a suit to remove a cloud from the title, he is not entitled to the rents which were due prior to the conveyance. (p. 766.)

PARTITION- Cross-bill. Cotenants who file no cross-bill praying for partition are not entitled to partition of lands in a suit in equity not contemplating partition. (p. 767.)

JUDGMENTS-Res Judicata.-A decree in a suit that complainant is not the owner of certain land by virtue of certain deeds is not res judicata in a second suit by him against the same defendant, for the same land based on entirely different grounds, wholly independent of the two deeds involved in the former suit. (p. 769.)

JUDGMENTS-Res Judicata.-A judgment, to constitute res judicata, must not be open to argument or inference whether the same cause was decided in the former suit. There must be certainty that the very matter in dispute has been the subject of judicial determination. (p. 770.)

Bill in equity by one cotenant to set aside certain conveyances as clouds on the title to the property in dispute, to which the other cotenants and other adverse claimants were made defendants.

C. Perkins, for the appellant.

T. McKnight, for the appellee.

647 CAMPBELL, S. J. This case was before this court on demurrer to the bill, and was reported in 81 Miss. 599, 33 South. 416. The demurrer was held bad, because it was decided that Albert N. Bunckley, the complainant, was entitled to an interest in the land in his own right as a son of Nathan

Bunckley and also as grantee of his brother, W. R. Bunckley. The cause was remanded, and the bill was answered by the mortgage company and by some of the other defendants, and was heard on pleadings and evidence, and resulted in a decree for the complainant for the interest in the land sued for and rent for the use of it. The grounds set up for the defeat of the claim of complainants are res adjudicata, estoppel by conduct, and the statute of limitations of ten years.

648 The defense of res adjudicata consists of a decree in a case in which complainant exhibited a bill of chancery in which he propounded a claim of ownership of an interest in the land embraced in this suit by virtue of two conveyances set forth in his bill, which are altogether different from the claim he makes in this suit. It was held in that case on appeal to this court that he had no right by virtue of the claim made in that suit. The subject matter of the two suits is different, and the former decree is not a bar to the claim made in this. That case is reported in Bunckley v. Jones, 79 Miss. 1, 29 South. 1000, by reference to which the manifest difference between the two cases will be apparent.

The presentation relied on as estopping by conduct is, as to Albert N. Bunckley, that he was at the home of his father, Nathan Bunckley, when the agent of the mortgage company was there to inspect the land for a loan of money on it by the company, and was cognizant of the proposed loan, and was silent as to any claim of his own to the land; that a large body of some three thousand acres of land was conveyed in 1847 by Ransom Bunckley in remainder, after a life estate to his three sons, of whom Nathan was one; that soon a partition was made between the three grantees and a partition deed executed; that Nathan went into possession of the part allotted to him and soon acquired other interests in the large tract by purchase from co-owners, and from 1873 or before was in possession as sole owner of all the land in controversy, dealing with it as his own, having it assessed as his, paying the taxes, receiving the rents, selling timber-in short, exercising all such acts of individual ownership and control as pertains to complete and undisputed ownership, and that in order to get the loan from the mortgage company Nathan made affidavit that his father had long owned the land and his title had never been disputed, and that he had acquired it from his father by the conveyances in 1847, and had gone into possession 649 in the early '70's, and his title had never

been questioned, and he had, as he believed, a perfect title in fee simple; that an attorney at law employed by Nathan had made an abstract of the title, and given an opinion that it was perfect in Nathan, whereupon the sum of five thousand dollars was loaned and a deed of trust taken on the land, under which the mortgage company acquired title by a sale in accordance with the deed in 1893. Albert N. Bunckley, the complainant, lived with his father, Nathan, on the land, and cultivated a part of it, and was on the land with his father when it was sold under the deed of trust, and was dispossessed with his father by a proceeding of unlawful detainer, after the sale.

The question is, Is he estopped by his silence? The truth is, he did not know that he had any interest in the land. As stated by counsel for the mortgage company, "it was not considered in the family at that time, nor until after 1893, that the children of Nathan had any interest whatever in the property in controversy. His ignorance of his rights precludes the claim of estoppel by his mere silence: 11 Am. & Eng. Ency. of Law, 433, 434b, and cases cited; Pomeroy's Equity Jurisprudence, sec. 805; Houston v. Witherspoon, 68 Miss. 190, 8 South. 515; Hignite v. Hignite, 65 Miss. 447, 7 Am. St. Rep. 673, 4 South. 345; 7 Ballard on Real Property, p. 40. Apart from this, it is by no means certain that he knew of the loan being effected, and if he did, he was under no legal obligation to assert his claim, to interfere with the success of his father's application for a loan. His title, in fact, had not then accrued, so far as he derived from his brother, W. R. Bunckley, and his claim arising from the conveyances of Ransom Bunckley in 1847 was of record and constructively as much known to the mortgage company as to him.

The claim of estoppel as to the interest in the land acquired by complainant by conveyance of W. R. Bunckley is based on the fact that on January 5, 1891, W. R. Bunckley opened a written correspondence with the agent of the mortgage company in 650 behalf of his father about the deed of trust and its payment, and wrote several letters in which he spoke of the land as his father's, and about paying the debt of his father, and made no claim of his own to any interest in it, and as the mortgage company afterward sold the land, and purchased it, W. R. Bunckley was estopped to assert any claim to it, and, he being estopped, complainant, his grantee, is. But W. R. Bunckley was ignorant of his right to the land,

and did nothing by which the mortgage company was misled to its prejudice. It thought it had a lien on the fee simple and a perfect claim on the land by virtue of its deed of trust, relied on that, and could not have been misled by any act of W. R. Bunckley, on which it did not rely. He was not estopped, and his grantee took his title free from estoppel.

The statute of limitations is not a bar, for the reason that, although they did not know it, as before stated, Nathan Bunckley, who thought he was sole owner, was a cotenant with the complainant and W. R. Bunckley, and his possession was, in view of the law, that of all the co-owners, and the statute of limitations could not be set in motion until an ouster or its equivalent, and there was none. "A conveyance alone, without possession taken under it, can never amount to an ouster. The same remark is applicable to a mortgage of the whole": Freeman on Cotenancy, sec. 226; Warvelle on Ejectment, sec. 450 et seq.; Wood on Limitations, p. 621. The intimate relationship between the cotenants here is an important circumstance: Warvelle on Ejectment, sec. 456. In such case much stronger evidence is required to start the running of limitations than among strangers: Wood on Limitations, p. 621.

The complainant is entitled to recover the land, as held by the decree of the chancellor, but is not entitled to rent of the interest acquired in 1898 from W. R. Bunckley prior to that date.

The mortgage company sought to amend its answer, so as to set up the six-year statute as a bar to the claim for rent and to have stricken out of the bill an amendment allowed long before, 651 and was refused, we think properly, because, while amendments are to be liberally allowed, there is a limit to liberality, and it was reached in this case.

On cross-appeal complainant insists that partition should have been decreed, and part of the defendants insist that partition should have been decreed. It was not asked by complainant in his bill, nor did the defendants exhibit a cross-bill. "Ask, and ye shall receive," is still the law to which we are subject, and no complaint against the decree on this ground can be maintained.

The decree will be opened, so far as to correct it by reduc ing it by the amount of the part of the rent accruing prior to the conveyance by W. R. Bunckley to complainant, and with this change the decree will stand.

The costs of the appeal will be taxed on complainant; the other costs on the defendants below.

OPINION ON FIRST SUGGESTION OF ERROR.

CAMPBELL, S. J., delivered the opinion of the court in response to the suggestion of error made by Theodore McKnight, for appellees.

In disposing of this case on a former day, we gave full consideration to the claim of the cross-appellants that the court should declare their rights as to the land and decree partition; and, as they were defendants and had not exhibited a cross-bill, we held they were not entitled to any relief. We are "strenuously" urged by counsel to examine this question, and have done so, and have examined every citation of counsel, and not found one which, according to our apprehension, calls for a change of our view as heretofore announced. Our own cases certainly sustain this view. In Millsaps v. Pfeiffer, 44 Miss. 805, it is said: "It is the settled doctrine that a defendant cannot pray anything in his answer, except to be dismissed, with his costs. If he has any relief to pray, . . . . he must do so by a bill of his own, which is called a cross-bill." In Weeks v. Thrasher, 652 52 Miss. 142, it is said: "It is impossible for us to understand how a decree could be made in this case for the sale by the administrator of the lot. . . . The answer of the administrator could ask no relief, and the court could grant none. To the same effect are Bay v. Shrader, 50 Miss. 326; Edwards v. Hillier, 70 Miss. 803, 13 South. 692; Preston v. Banks, 71 Miss. 601, 14 South. 258.

It is true that a court of chancery will shape its decrees to effect justice between parties, without regard to their attitude as complainants or defendants, but with due regard to the rules above announced. There are cases in which relief will be given to the complainant on terms, as illustrated by Harrison v. Harrison, 56 Miss. 174, and Ragsdale v. Alabama G. S. R. Co., 67 Miss. 106, 6 South. 630, and there are cases where relief may be granted between defendants, as declared in Arnold v. Miller, 26 Miss. 152; but they are exceptional and stand on peculiar grounds, and in our opinion this case does not come within the exception. We found one case which may be claimed as a precedent for the action asked of us in this. In a suit by a vendor of land to reform