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Selected Court Cases 1843-1903...


Supreme Court of Mississippi.

ROGERS v. STATE.

May 18, 1903.

Appeal from Circuit Court, Neshoba County; G. Q. Hall, Judge.
H. H. Rogers was convicted of murder, and appeals. Reversed.
*320 S. A. Witherspoon, W. T. Houston, and L. M. Southworth, for appellant.
Woods, Fewell & Fewell and J. N. Flowers, Asst. Atty. Gen., for the State.

PRICE, J.

The grand jury of Neshoba county, March 8, 1902, indicted H. H. Rogers *321 for the murder of Tom A. Byrd, and on December 23, 1902, he was tried, convicted, and sentenced to life imprisonment; and the case is here on appeal, with a record challenged by the defendant with forty-four assignments of error. We will consider but one of the numerous errors assigned, in so far as it relates to two charges given for the state--Nos. 2 and 5.

Charge No. 2 is in the following language: "If the jury shall believe from the evidence, beyond all reasonable doubt, that, in the difficulty in which Byrd lost his life, that the defendant was the aggressor and provoker of the difficulty, and that he prepared himself for it by arming himself with a deadly weapon, to wit, a pistol, and sought out the deceased and provoked the difficulty, intending to use his pistol and overcome his adversary, if necessary, and that he then shot and killed Byrd, he is guilty of murder, and the jury should so find." This instruction charges the jury, in substance, that if they believe that the defendant was the aggressor and provoked the difficulty, and armed himself for it, and sought out Byrd, intending to use the pistol and overcome Byrd, if necessary, and that he then killed Byrd, he is guilty of murder. This charge is erroneous, in that it denies the defendant the right of self-defense. All the facts assumed or alleged in the instruction may be true, and yet the killing may not have been in pursuance of such former design, or that it may have been done in necessary self-defense.

The fifth instruction given for the state is as follows: "If the jury shall believe from the evidence, beyond all reasonable doubt, that there was trouble or misunderstanding at the time of the homicide between Byrd and Rogers, and that they agreed to face each other about it, and that in pursuance of the purpose to meet and face each other, each of them armed himself with a deadly weapon, to wit, a pistol, and that they then met and faced each other, and that Rogers in that meeting shot and killed Byrd, he is guilty of murder, and the jury should so find." This instruction told the jury that they should convict Rogers of murder if they believed there was trouble or misunderstanding between Rogers and Byrd at the time of the homicide, and that they agreed to face each other, and each armed himself with a pistol, and that they did so face each other, and Rogers killed Byrd at the meeting. The error in this instruction is too manifest for argument or citation of authorities. There is no evidence in the case on which to base such a charge. There is no evidence that the parties had agreed to such a meeting. The preliminary negotiations of the friends and relatives of the unfortunate girl, and the part played in this effort to get matters amicably adjusted, by Rogers, were all consistent with a lawful purpose. Such a meeting as subsequently took place between Rogers and Byrd, in which Byrd lost his life, falls far short of a prearranged meeting for a duel. In the one case the meeting was to adjust a misunderstanding, and remove, if possible, all stain from the character of the girl. But in the other all efforts to peaceable settlement are known to have passed, and the parties meet only to do battle.

The state asked nine instructions, and, as is usual in such cases, falls an easy victim to too many instructions. "The old paths are the best paths." As said by this court in the Patterson Case, 23 South. 647, by Judge Whitfield: "Persons at their country's bar are not to be charged into the penitentiary by a court as matter of law, but to be put there by verdicts of juries, finding their guilt as a fact." A circuit judge can hardly keep a nisi prius trial free of error where counsel, unconsciously swayed by their interest in the case, demand so much at his hands, and at a time when both time and opportunity preclude an examination of the authorities. Prine v. State, 73 Miss. 842, 19 South. 711; Patterson v. State, 75 Miss. 675, 23 South. 647.

For the errors assigned, the case is reversed and remanded.
82 Miss. 479, 34 So. 320
End of case ------------


Supreme Court of Mississippi.
BARRIER v. KELLY et al.

March 24, 1903.

Appeal from Chancery Court, Yazoo County; H. C. Conn, Chancellor.
Suit by B. J. Barrier, Jr., against I. M. Kelly and another. From a decree of dismissal on sustaining a demurrer to the bill, plaintiff appeals. Affirmed.

Exhibit C.
"This indenture made and entered into this 4th day of June, 1890, between Mary Ann Ray, of Madison county, Mississippi, of the first part, and I. M. Kelly, of Yazoo county, Miss., of the second part, witnesseth: That the party of the first part in consideration of the love and affection which she bears to her beloved son, Jackson Harvell Ray, now a minor, and for other and divers good and lawful considerations thereunto moving the said party of the first part, not herein expressed, she hereby gives, grants, bargains, sells and conveys to the party of the second part the following real estate, to wit: An undivided half interest in the east half of the southwest quarter, section seven; the east half and southwest quarter, and east half of northwest quarter, section eighteen, T. 10, R. 2 west, situated in Yazoo county, Mississippi. Also the following tract or parcel of land known and described as follows: North half of section three, township 8, range 3 west; east half of lot 7, section 18, township 8, range 4 east, situated in Madison county, Mississippi. Also the following personal property: A one-half undivided interest in all the cattle and household effects (except one bedroom set and clock, conveyed in deed of this date to the party of the second part for B. J. Barrier), and one horse and buggy being now owned by the party of the first part, and on the place on which she now lives in Madison county, Mississippi, now on my home in Madison county, Mississippi. To have and to hold the same until the said I. M. Kelly and his successors in the trust as hereafter set forth in succession, and subject to the limitations, terms, conditions, uses, and purposes hereinafter specified. But this conveyance is in trust and on the following terms and conditions, and for the following uses and purposes, and subject to the conditions, limitations, powers, and provisions following: Said party of the second part is to take charge of, control, manage, and direct the property herein conveyed to him as he may see proper, in the interest of said minor, until he shall become of age, when the said property herein conveyed, and still remaining in the hands of said trustee, shall be delivered to him; and said trustee is hereby directed to make a deed, in fee simple, to said lands, to said Jackson Harvell Ray, who shall thereafter hold the same absolutely. The said trustee is hereby authorized to make any improvements on said property he may see proper, rent out and control the same, and to invest any surplus money he may have, belonging to said minor, in property, which shall in all things follow the trust. Said trustee may resign his trust and appoint a successor in writing, duly acknowledged and recorded, or by last will and testament, and, should he die or resign without appointing a successor, the chancellor of the district may, on the application of said minor, or any one in his behalf, appoint a successor, but said minor may have the right to designate such successor, subject to the approval of the said trustee, and such successor shall have all the rights herein conferred on said Kelly, and be subject to all the requirements and conditions of this instrument. Said trustee shall render to the court, which has jurisdiction of the matters of guardianship an annual account, showing the condition of his trusteeship, but will not be required to show receipt for expenditures, but his account book shall be sufficient evidence of all receipts and expenditures. Said trustee may lease said land in Madison county to the father of said minor on such terms as he might see proper, and make lower prices to him on account of his relationship, if he sees proper to do so. Should said minor die during his minority without a wife living, or issue of the body, or descendants of the same, the property herein conveyed shall go to his half-brother, B. J. Barrier, or his children, or descendants of the same, should he have any. Said trustee is hereby directed to make the necessary conveyances at the proper time to vest the title according to the terms of this instrument. Said trustee is to use sufficient of the proceeds of the said personal property, which he may sell at public or private sale, on such terms as he may think best, and of the rents and profits of said land, in suitably maintaining, educating, and taking care of said minor; and if there *976 should not be a sufficient sum of money realized by said trustee out of the cash, notes, chooses in action, delivered to him in accordance with an instrument of even date, herewith, executed by me for the benefit of my son, B. J. Barrier, to pay what said trustee is required to pay by said instrument, he may pay such deficit out of the said proceeds of said personal property, or rents and profits of said land. It is intended that said trustee shall pay all taxes and other necessary expenditures on said land, and to have such reasonable compensation for his services as the court to which he accounts may allow him. He shall also be allowed such reasonable attorney's fees and other expenses as he may have to incur in and about his trusteeship.
Witness my signature this the day and year first above mentioned.
[Signed] Mary Ann Ray."

Exhibit D.
"This indenture made and entered into this the 4th day of June, 1890, between Mary Ann Ray, party of the first part, of Madison county, Mississippi, and I. M. Kelly, party of the second part, of Yazoo county, Mississippi, witnesseth: That the party of the first part, for and in consideration of the love and affection which she bears her beloved son B. J. Barrier, now a minor, and for other divers good and lawful considerations thereunto moving the said party of the first part, not herein expressed, she hereby gives, grants, assigns, and delivers to said party of the second part all of the cash money, notes, chooses in action or other evidence of indebtedness now belonging to her; also the following personal property: A one-half undivided interest in all the cattle on the home place in Madison county, Mississippi; also the only bedroom set being on the said place, and an undivided half interest in the bedding and household effects of every kind; also one clock; all being on said place in said county, and property being claimed by party of the first part, and said place referred to being the one on which the party of the first part now resides; and, for consideration aforesaid, the party of the first part, gives, grants, bargains, sells, and conveys to the party of the second part whatever interests she may have in the lands of her former husband, B. J. Barrier, Sr., situated in Yazoo, Madison, and Neshoba counties, in the state of Mississippi, owned by B. J. Barrier, Sr., at his death. To have and to hold the same unto the said party of the second part and his successors in the trust as hereinafter set forth in succession, and subject to the terms, conditions, uses, and purposes hereinafter specified. But this conveyance is in trust, and on the following terms and conditions, and for the following purposes, and subject to the limitations, powers, and provisions following: The said trustee shall, out of any money, or collections from any notes, chooses in action or other evidence of indebtedness, as heretofore mentioned, pay all of the family expenses of or other demands made on him by the party of the first part, or such expenditures as he may think necessary, whether required by the party of the first part, during her life; hereby giving him full and discretionary power during the life of the party of the first part, except so far as she may direct; she reserving the right to direct any expenditure of such property, while she lives, that she may see proper. At the death of the party of the first part, said party of the second part is hereby directed to pay all debts that she may owe, including burial expenses, without probation and registry, as speedily as he can, out of said money, notes, etc., then erect such monument as he may see proper over the grave of the party of the first part and her deceased children, and pay expenses of removing the remains of the latter to the graveyard at Concord Church, in Yazoo county, Mississippi, where the party of the first part directs the said party of the second part to bury her remains. He is next to pay over the sum of one hundred dollars to Miss Eva Barrier, niece of the party of the first part, in consideration for the kindness she has shown and the services she has rendered to the party of the first part. He shall next pay to her husband, J. H. Ray, the sum of ___ dollars; all of which sum, etc., shall be paid out of said money, notes, etc.; and should there be any balance left, the said trustee is to use the same for the benefit of said B. J. Barrier, as he may require. The party of the first part hereby conferring on the said trustee full power and discretion. The said trustee may sell or dispose of said other personal property as he may think best, either by private or public or public sale, and on such terms as he may see proper, or retain such portion thereof for the use of the said minor as in his judgment the interest of the said minor may require. Said trustee is also authorized to use any of the said funds for the education, support, and maintenance of said minor, or may lend out or invest any surplus money he may have for the benefit of said minor. And he shall report to the proper court, in his guardianship of said minor, should he act as such, under the last will and testament of said party of the first part, appointing, him, or he may report as trustee and separate from any matters of guardianship, his acts and doings hereunder, but his books of account shall be deemed sufficient evidence of his receipts and disbursements in his accounting hereunder, and he shall be allowed a reasonable compensation for his services in this trust and all reasonable attorney's fees and other necessary expenses which he may incur. When said minor arrives at the age of twenty-one, then said trustee shall deliver to him whatever of the estate herein conveyed to him which he has on hand undisposed of, or convey to him any real estate he may have purchased *977 for him, if not already conveyed to him, or the interest in the lands aforesaid of his father. The party of the first part has not conveyed to said trustee for the benefit of said minor any real estate except whatever interest she may have in his father's lands, because said minor has inherited from his father and his deceased brothers sufficient real estate to make him own about an equal amount in value to that owned by party of the first part, and this day conveyed by her to the said party of the second part, as trustee for her son, J. Harvell Ray. Said trustee may, in writing, duly signed and executed and recorded, resign his trusteeship hereunder, and appoint a successor, or may appoint one by his last will and testament; and such successor shall have all the rights, powers, and privileges herein given the party of the second part. Witness my signature this day and year first above mentioned, after the interlineation on the third page, 'or the interest in the lands aforesaid of his father,' and 'except whatever interest she may have in his father's lands.'
[Signed] Mary Ann Ray."

C. H. Williams and W. W. Lockard, for appellant.
Barnett & Perrin, for appellees.

WHITFIELD, C. J.

At the time of the death of Mrs. Ray, B. J. Barrier, Jr., became the legal owner of the entire Taylor tract of land. His mother had first been married to Mr. Barrier. The only issue surviving from this marriage was B. J. Barrier, Jr., the appellant. After the death of Mr. Barrier, the widow intermarried with Mr. Ray, and by him had one son, the appellee. The appellant and appellee were therefore half-brother. Mr. Barrier and Mr. Ray had bought, each, an undivided half interest in the Taylor tract of land. These transactions occurred before the Code of 1880 abolished dower. Mrs. Barrier, upon her husband's death, was entitled to dower in that half of the Taylor land bought by her husband Barrier, which dower was never assigned. Upon her death, the dower interest expiring, B. J. Barrier, Jr., became sole owner of that undivided half interest. After the marriage of the widow Barrier to Mr. Ray, and before the birth of their son, the appellee, Mr. Ray conveyed his undivided half interest to Mrs. Ray, then his wife, for her life, remainder to two Barrier sons then living, of whom B. J. Barrier, Jr., was one. The other Barrier son died, and B. J. Barrier, Jr., inherited this interest. Of course, upon the death of Mrs. Ray, her life estate in this land expired, and appellant became sole owner of that half interest, also, in the Taylor land. So that, as stated, on the death of Mrs. Ray the appellant became the sole owner of the legal title of the entire Taylor land. On the 4th of June, 1890, Mary Ann Ray made two deeds, by one of which she conveyed to I. M. Kelly, as trustee for J. H. Ray, Jr., an undivided half interest in certain chattels and household effects, and a buggy and a horse, and attempted to convey an undivided half interest in the said Taylor land to I. M. Kelly, trustee, to be by him conveyed to J. H. Ray, Jr., upon his arrival at majority. By the other deed she conveyed to I. M. Kelly, trustee, for the benefit of B. J. Barrier, Jr., "all of the cash money, notes, chooses in action and other evidences of indebtedness" belonging to her at the date of the deed; also one undivided half interest in the cattle on the home place; also the only bedroom set of furniture, and also an undivided half interest in the bedding and the household effects of every kind; also one clock, and whatever interest she might have in the lands of her husband B. J. Barrier, Sr., situated in Yazoo, Madison and Neshoba counties, in this state, and owned by her husband B. J. Barrier, Sr., at his death. She, however, reserved the right during her life to make any expenditure out of the notes, cash, etc., she might see proper; and she further charged the cash, notes, etc., with the family expenses, her debts, burial expenses, the cost of erecting a monument over herself, and of removing the remains of her deceased children to the graveyard at Concord Church, and with the payment of a legacy of $100 to Miss Eva Barrier, her niece; and the balance, if any, was to be used by the said trustee for the benefit of B. J. Barrier, Jr., as he might require. In this last deed the grantor says: "The party of the first part [the mother] has not conveyed to said trustee for the benefit of said B. J. Barrier, Jr., any real estate, except whatever interest she might have in his father's lands, because said minor has inherited from his father and his deceased brothers sufficient real estate to make him own about an equal amount, in value, to that owned by the party of the first part, and this day conveyed by her to said party of the second part [Kelly] as trustee for her son J. Harvell Ray." These deeds were made on the same day, mutually referred to each other, not for description of the property, merely, and are plainly parts of one transaction, and to be construed as one instrument. The mother, having executed these deeds on the 4th of June, 1890, died June 10, 1890.

We think it perfectly clear that Mrs. Ray believed herself to be owner of the undivided half interest in the Taylor land which she attempted to convey to her son J. H. Ray, Jr., and in which her husband had conveyed to her a life interest only; and, second, that she believed her Barrier son, the appellant, owned the other undivided interest in that same land, which came through his father, subject to her dower interest. She also thought she had some interest in certain lands in Madison and Neshoba counties, which she conveyed to her son B. J. Barrier, Jr.

In July, 1890, Kelly qualified as guardian to B. J. Barrier, Jr., in Madison county. On *978 the 16th of November, 1897, B. J. Barrier, Jr., became 21 years of age; and in March, 1898, Kelly made his final report as trustee and guardian of Barrier, reporting a settlement between him as trustee and guardian, according to the terms of the deed of Mary Ann Ray to Kelly for Barrier's benefit, and was discharged by the court. Some four years thereafter, to wit, on December 30, 1901, appellant filed this bill against his late guardian, Kelly, and his half-brother, the appellee, claiming that he was owner in fee simple of the entire Taylor tract of land, one undivided half interest in which his mother had attempted, as shown, to convey to his half-brother, J. H. Ray, Jr. He prayed that this deed should be canceled as a cloud upon his title; and, second, that the court should decree him possession of, and ownership in fee simple of, the entire Taylor tract of land; third, that Kelly, trustee, should be required to account and pay over to him the other half of the rents and profits from said land, which he had collected since and including the year 1890, together with the interest at legal rate thereon; and, fourth, that in case Kelly had paid these rents to J. H. Ray, Jr., he, the said Ray, should be required to account and pay over same to him. The appellee at the May term, 1902, demurred to this bill upon the ground that it showed no cause of action, and that the appellant did not offer to do equity. This demurrer was sustained by the court, and 60 days allowed complainant in which to amend his bill, or file an amended bill in the case. The complainant declined to amend his bill in the 60 days allowed him, whereupon the court below dismissed the bill, and from that order this appeal is prosecuted.

It will be observed that the bill was dismissed under the principle of equitable election; the court holding that the appellant had made his election in accordance with the instrument, and not against it, and that he could not now repudiate that election. It will be specially noted that in this case it is clear, first, that the mother believed herself to be the owner of the land she attempted to convey to the appellee, and hence could not have intended to convey that land as being the appellant's property; and, second, that nevertheless she did in fact attempt to convey what was not hers, but plaintiff's property. It is clear, therefore, on the face of the instrument, that she did convey, or attempted to convey, an undivided half interest which was not her property, but wholly the property of appellant, and by the same instrument did convey to him, first, the surplus left from the profits of cash, notes, etc.; second, certain specific household effects; third, an undivided half interest in the cattle on the place; and, fourth, whatever interest she had in certain lands in the three counties named.

One of the fundamental differences between the doctrine of equitable election, as we administer it, and as it was administered under the Roman civil law, from which it was borrowed, is that with us the doctrine of equitable election applies, whether the donor was or was not aware that he was dealing with property not his own. 1 Pom. Eq. Jur. § 463; 1 White & Tudor's Leading Cases in Eq. p. 546; note to Streatfield v. Streatfield; and the Am. & Eng. Ency. of Law (2d Ed.) vol. 2, p. 68 (2). Another difference between the two systems is that under the civil law the doctrine of equitable election was confined to wills. See Mr. Swanston's notes to Dillon v. Parker, 1 Swanston, 359 and note, above referred to, in 1 White & Tudor's Leading Cases in Eq., vol. 1, pt. 1, pp. 513-541. With us the doctrine applies to deeds, wills, and all other instruments whatsoever. One of the differences between the application of the principle to a will and to a deed is that "in the case of deeds, such as settlements, a person may be compelled to elect, although there is not a clear intention on the part of the settlor to dispose of property which is not his own; and this on the ground that a person cannot accept and reject the same instrument." See Am. & Eng. Ency. of Law (2d Ed.) vol. 2, p. 69 (5), and note 2. Lord Redesdale said of this in Birmingham v. Kirwan, 2 Schoales & L. 444, cited in said note, that this difference arose "because deeds are generally matter of contract, and the contract is not to be interpreted otherwise than as the consideration, which is expressed, requires." We note this distinction, though it is immaterial in this case, since it is perfectly manifest here that Mrs. Ray did intend to convey the property she attempted to convey to Kelly for her son Ray. There is no doubt about her clear intention so to convey, and no doubt that that clear intention appears on the face of the instrument; and just as little doubt that she meant to convey it as her own, the fact being that it was complainant's property. The doctrine of equitable election itself is, in our judgment, not founded on intention, as held by so many cases, but is, as stated by Mr. Pomeroy, "a positive rule of law, covering the devolution and transmission of property by instruments of donation, and is invoked wholly irrespective of the intention of the donor, although in the vast majority of cases it undoubtedly does carry into effect the donor's real purpose and desire." The doctrine rests, as we think, upon the equitable principle that he who seeks equity must do equity. We approve and adopt the statement of the doctrine by the United States Supreme Court in Peters v. Bain, 133 U. S. 395, 10 Sup. Ct. 354, 33 L. Ed. 696, as follows. "The doctrine of election rests upon the principle that he who seeks equity must do it, and means, as the term is ordinarily used, that, where two inconsistent or alternative rights or claims are presented to the choice of a party by a person who manifests the clear intention that *979 he should not enjoy both, then he must accept or reject one or the other, and so, in other words, that one cannot take a benefit under an instrument, and then repudiate it." In Cooper v. Cooper, L. R. 7 H. L. 67, Lord Chancellor Cairns, in explaining that the doctrine is applied without reference to whether the donor knew that the property of which he attempted to dispose belonged to another, said: "The rule *** does not proceed either upon an expressed intention, or upon a conjecture of a presumed intention, but it proceeds on a rule of equity, founded upon the highest principles of equity, and as to which the court does not occupy itself in finding out whether the rule was present or was not present to the mind of the party making the will." Mr. Pomeroy makes the matter exceedingly clear in section 464: "A disposition calling for an application of the doctrine of election may be made under the two following different states of circumstances: Either the donor may know that the property which he assumes to deal with is not his own, but belongs to another, and notwithstanding such knowledge he may assume to give it away, or he may give it away, not knowing that it belongs to another, but erroneously and in good faith supposing that it is his own. In the first of these two cases the presumption of an intention on the part of the donor to annex a condition to the gift calling for an election by the beneficiary plainly agrees with the actual fact. At all events, it violates no probabilities. When a testator devises an estate belonging to A. to some third person, and at the same time bestows a portion of his own property upon A., he undoubtedly must rely upon the benefits thus conferred upon. A., as an inducement to a ratification by A. of the whole disposition. To give A. the property which the testator was able to dispose of, and at the same time to allow him to claim his own estate, which had been devised to the third person, by his own paramount title, would be to frustrate the evident intention of the testator. In the second case, where the testator or other donor erroneously supposes that the property which he undertakes to give away is in fact his own, the doctrine of election applies with the same force and to the same extent as in the former. Here it is, in the nature of things, simply impossible that the donor could actually have had the intention which the theory imputes to him, since he really believes himself to have a disposing power over the property, or to be dealing with property which is his own."

This case falls squarely within the second category stated by Mr. Pomeroy, and it is simply impossible that the grantor, Mrs. Ray, could have had the intention imputed to her by the theory, since she believed herself to be disposing of her own property. We prefer, therefore, the broader view of the Supreme Court of the United States, of Mr. Pomeroy, and of Lord Chancellor Cairns, that the rational basis of the doctrine is not to be found in the supposed intention of the donor, but in the equitable principle that he who seeks equity must do equity. We think this doctrine applies in full force to this case. Appellant has made his election. He has been receiving since 1890 whatever surplus has been yielded from the cash, notes, etc. He has retained the specific personal gifts, and for four years after his arrival at age, and after a full settlement with his guardian has been made, has made no objection; all the while knowing, as is clear from the pleadings, that his half-brother was in reception of the rents and profits of the lands attempted to be conveyed to him by his mother. Equity will not permit him now to rip up the whole transaction, alter the entire situation, and repudiate his election once definitely made. It is true that the equitable doctrine of election is administered upon the principle of compensation, and not of forfeiture, though, as said by Gibson, C. J., in Lewis v. Lewis, 1 Harris, 79, 53 Am. Dec. 443, there may be some few cases in which the principle of forfeiture alone can be applied. In Am. & Eng. Ency. of Law (2d Ed.) vol. 2, p. 115 (3), the rule is thus expressed: "According to the great weight of authority, as now conclusively established, the refractory donee does not, in such event, forfeit the benefit or estate conferred upon him, but is bound only to make compensation out of it to the disappointed donee to the extent of the value of the property of such refractory donee which the donor has attempted to bestow upon such disappointed donee. In such case a court of equity treats the refractory donee as a trustee, and will sequester the benefit intended for him, in order to secure compensation to the disappointed donee. But the excess does not go to the personal representative of the testator, as if undisposed of, but is to be given to the refractory donee; the purpose being satisfied, for which alone the court controlled the legal right. See, also, 1 Pom. Eq. Jur. § 468, and note 1 on page 636, and 1 White & Tudor's Leading Cases in Eq., note, supra, vol. 1, pt. 1, p. 543. And it follows from this principle of compensation that, since appellant in this case had his election to claim against the instrument and retain his own property, he might, in case the surplus arising from the cash, notes, etc., and proceeds of other personal property given him, had exceeded in value his property conveyed to his brother, have retained, in addition to his own property, the difference between the value of that property and such surplus; and it is earnestly urged that the bill does not show anything but the mere settlement between him and his guardian, or that he had received a dollar there from, and that the bill further does not show that there was any surplus left from said cash, notes, etc. But the perfect reply to this is that all this lay peculiarly within the knowledge of complainant, and, under *980 the rule that the pleadings must be taken must strongly against the pleader, it must be presumed that if the fact had been that there was no such surplus from such cash, notes, etc., he would certainly have averred it. The bill avers the rents of the entire Taylor tract of land to be only $300, and it may be that appellant has derived from cash, notes, etc., and other personal property, more, in value, than the undivided half interest in said land attempted to be conveyed by his mother to appellee was worth. At all events, it was the duty of complainant to fully and particularly disclose the truth as to this--most especially so when he comes into a court of conscience, pressing his legal rights to their utmost limit, without offering to return anything he may have received. It is true, he was an infant up to his arrival at age in November, 1897. But he waited, under the peculiar circumstances we have set out, four years thereafter, to file this bill. We are clearly of the opinion that the learned court below was entirely right in applying to him the principle of equitable election.

Not only did the court below give him 60 days in which to amend this bill, but said time was given, if he chose so to use it, in which to file an amended bill; and the inference from his failure to avail himself of leave to do either is irresistible that he had stated his case as strongly as it was possible to state it, and that, had he made the full disclosure equity required at his hands in the situation, it would appear that he had elected to keep what his mother gave him, because it was worth more than the land belonging to him, which he had conveyed to Kelly for his brother's benefit.

Affirmed.
62 L.R.A. 421, 82 Miss. 233, 33 So. 974
End of case ------------



Supreme Court of Mississippi.
GAMBLIN v. STATE.

March 2, 1903.

Appeal from circuit court, Neshoba county; G. Q. Hall, Judge.
Frank Gamblin was convicted of manslaughter, and appeals. Reversed.
Wm. Williams, Atty. Gen., for the State.

TERRAL, J.

Upon the trial of Gamblin in the circuit court of Neshoba county what purported to be evidence of Roland Edwards was offered by the state to be laid before the jury. This purported evidence consisted of 12 pages of written matter, uncertified to by any officer. Before reading it to the jury, reason, not to say law, seems to have called for some explanation. Therefore the committing magistrate, J. C. Harrison, being sworn, stated that he had caused the testimony of Roland Edwards to be taken down in writing, but failed to state that he duly certified to it. He was asked whether he could give the substance of the testimony of Roland Edwards, to which he replied that he could not; that the witness was on the stand for one and a half days; and that what he thought was material was taken down in writing, upon 14 pages of writing, of which 12 of the pages, he thought, were before them, but 2 of them were missing; that he could not say what was in the missing pages. The 12 pages were read to the jury as the evidence of Roland Edwards.

We think it was inadmissible. There is no pretense that the examining magistrate, Harrison, certified to it; for, if so, the certification was lost, and that destroyed the validity of the instrument as a means of evidence. Harrison denied that he could give the substance of the evidence of Roland Edwards, and no other person pretended any ability of that sort. The 12 pages of evidence purporting to be the evidence of Roland Edwards were not admissible in evidence.

Other errors are alleged, but the evidence does not support the contention in respect to them.

Reversed and remanded.
82 Miss. 73, 33 So. 724
End of case ------------



Supreme Court of Mississippi.
RUSH v. BROUSSARD et al.

Oct. 28, 1901.

Appeal from chancery court, Neshoba county; C. L. Anderson, Special Chancellor.

"To be officially reported."

Suit by H. C. Rush against F. A. Broussard and others to enjoin the sale of notes, and to cancel a trust deed. Decree for defendants, and complainant appeals. Affirmed.

A contract of agency to sell a patented washing machine gave the agent the privilege of selling one-half and whole agencies at a stated price, and of appointing two agents to retail family rights for the machine throughout the United States. On a bill to enjoin the sale of notes given for the purchase of such agency, and praying that a deed of trust securing the same be canceled, complainant alleged that the machine was worthless, and that the contract was void as against public policy, since it tended to induce fraud on the rights of others. Held, that the contract was valid, and would be enforced.

In October, 1898, F. A. Broussard, agent of one Crooker, the patentee of a washing *636 machine, made a contract with H. C. Rush, appellant, appointing him the agent to sell family rights to use said machines, and to sell agencies for same; and Rush agreed to pay $500 for said agency, and executed his two promissory notes for $250 each, and, to secure their payment, gave a deed of trust on some land. The contract provided that, for and in consideration of the sum of $500, "I hereby grant, bargain, and sell to said Rush the privilege of selling the family rights of the said washer, and of selling one-half and whole agencies of said letters patent, and appointing two agents to retail said family rights for the said washer in the United States. And the said Rush may sell and grant the privilege of selling one-half agencies for the sum of $500.00, or full agencies for the sum of $1,000.00, in cash or bankable notes (no more, no less), to any and all persons that he may successfully solicit, excepting in the county, or to persons living in the county, where some other person who has bought said agency, or his subagents, are selling said family rights, and not there unless he shall first obtain the written consent to sell of the other agents." This contract further provided that Rush was to instruct the parties to whom he sold family rights how to use them, and that neither Rush nor his agents were to sell said family rights for more nor less than $5. It further provided that neither Rush nor his agents would manufacture the machines, and that Crooker would furnish same for $1 for each machine. One machine was to be given to each purchaser of family rights, and Rush was to receive all profits derived from the sale of the family rights. The bill alleges that Broussard showed the machine to complainant, and explained it to him, and that he declined to purchase the agency, and Broussard then determined to defraud complainant, and to that end he made daily trips into the surrounding country, and returned each day and reported to complainant the number of his sales, aggregating from $10 to $30 per day, and stated that he had sold to the best people in the community, but that these representations were false; that the defendant had sold no machines at all, but had only deposited the machines with people for trial. The bill further charges that defendants procured one Graham, who lived in a neighboring community, and who had complainant's confidence, to spend a night with complainant for the purpose of inducing him to purchase said agency, and that he made false representations as to the merits of the machine and as to what could be made out of the sales, and that, on account of the misrepresentations of Graham and Broussard, complainant purchased the agency and executed the notes and trust deed. It further charges that the washing machine was worthless and a "humbug," and that for that reason he never attempted to impose them on the people. The bill charges that for that reason the notes were without consideration and void, and that not only he, but that the country at large, had been defrauded and swindled by the deception, misrepresentations, fraud, and rascality of the defendants. There were some other charges of fraud. The prayer of the bill was that defendants be enjoined from selling the notes and from executing the trust deed, and that trust deed be canceled as a cloud to complainant's title to the land. Defendants answered, denying all the material allegations of the bill. There was considerable testimony taken by both parties, and the cause was heard on the bill, answer, and proofs. It is contended by appellant that the contract is illegal and void as against public policy, because that portion of the contract relating to the sale of agencies has a direct tendency to induce fraud and malpractice on the rights of others, and, as that portion of the contract is incapable of being separated from the remainder, the whole contract is void.

Amis & Dunn, for appellant.

S. A. Witherspoon, for appellees.

CALHOON, J.

We concur with the chancellor in his conclusion on the facts, and in sustaining the validity of the instrument granting Rush the privilege of selling family rights and agencies of the washing machine. This instrument violates no public policy, and Mr. Rush went into the contract with his eyes wide open, and should pay his notes.

Affirmed.

30 So. 635

End of case ------------




Supreme Court of Mississippi.
GAMBLIN
v.
STATE.

March 4, 1901.

Appeal from circuit court, Neshoba county; G. Q. Hall, Judge.

Frank Gamblin was convicted of murder, and he appeals. Reversed.

Two persons were engaged in mutual combat, and both drew their pistols. Deceased got his out first, snapped it at accused, and struck him on the head with it. Deceased started to run, and accused followed him up, shooting him twice while running; the last shot taking effect. Held, that a charge was erroneous which failed to submit as a question for the jury whether the killing was done on malice, or on heat of passion engendered by a mutual combat wherein blows were passed on each side.

A charge that if the jury believed, beyond a reasonable doubt, that accused maliciously intended to kill deceased at the instant he fired the fatal shot, he was guilty of murder, should be qualified by the condition that the killing was not done by accused in his necessary self-defense; the evidence showing that the parties had engaged in a mutual combat, though deceased was running from accused at the time of the fatal shot.

The homicide occurred at a public gathering or picnic at a place known as "Gamblin Springs," in the county of Neshoba, and there were many eyewitnesses to the tragedy. The undisputed facts, as they appear from the record, are: That a difficulty was first started between Hugh Gamblin, a brother of defendant, and Isaac Tolbert. That Hugh Gamblin approached Tolbert on the picnic grounds, and ordered him to leave. While Tolbert and Hugh Gamblin were quarreling, Frank Gamblin appeared on the scene, and commanded Tolbert to leave the place, which Tolbert refused to do. A fight then took place between Frank Gamblin and Tolbert. After fighting a short time, both of the men drew their pistols; Tolbert getting his out first, and snapping it at Gamblin and striking him on the head with it. Some of the witnesses testify that Tolbert's pistol fired one shot, while others testify that there were only three shots fired, and all of them were fired by Gamblin. After Gamblin shot the first time, Tolbert ran. Gamblin followed him up and shot him twice while running, the third shot taking effect. There was evidence to show that Tolbert's pistol was empty, and that he begged Gamblin not to shoot, saying that his pistol was not loaded. The evidence shows that defendant and deceased had had a falling out a short time before *765 the homicide, and that defendant had made threats on several occasions that he would kill deceased; that threats were made on the morning of the killing by Gamblin that if Tolbert came to the picnic he would have to leave, or one of them would be killed. The first instruction for the state is as follows: "The court charges the jury, for the state, that malice may be either expressed or implied, and that, if the malicious intent to kill is executed the instant it springs into mind, the offense is as truly murder as if such malicious intent had dwelt in the mind, as the deliberate purpose of the defendant, prior to the difficulty, to take the life of the deceased; and if the jury believe from the evidence, beyond a reasonable doubt, that Gamblin, the defendant, maliciously intended to kill Tolbert at the instant he fired the fatal shot, he is guilty as charged in the indictment, and the jury should so find." On the trial, defendant was convicted, and sentenced to imprisonment for life. A motion for a new trial was made, and overruled by the court, and defendant appeals.

Hugston & Jones and G. B. Huddleston, for appellant.

Monroe McClurg, Atty. Gen., for the State.

TERRAL, J.

The seventh instruction in behalf of the state is, in our opinion, erroneous, in not submitting as a question for the determination of the jury whether the killing of the deceased by the defendant was done upon malice, or upon heat of passion engendered by a mutual combat wherein blows were passed upon each side. The instruction is as follows: "(7) The court instructs the jury, for the state, if they believe from the evidence, beyond every reasonable doubt, that the defendant shot Tolbert, with the intent to kill him, when Tolbert was running, and while the defendant, Gamblin, was not in any real or apparent danger of death or great bodily harm at the hands of Tolbert, and that said shot so fired at such time did in fact kill Tolbert, then Gamblin, the defendant, is guilty as charged in the indictment." The intent to kill is common to both murder and manslaughter, and, in our judgment, this charge requires the jury to impute malice to the defendant if he shot Tolbert when he was running, and when he was in no immediate danger of great bodily harm, although there was evidence from which the jury might have concluded that the killing may have been done in the heat of passion arising from a mutual combat in which blows had been passed upon both sides. The question whether the killing was done upon preconceived malice, or upon heat of passion upon a new provocation, was for the solution of the jury; and, in so far as the instruction shuts them from the consideration of this question, it is upon the weight of the evidence. We are also of the opinion that the first instruction should have been qualified by the condition that the killing was not done by the defendant in his necessary self-defense. Reversed and remanded.

29 So. 764

End of case ------------




Supreme Court of Mississippi.
DEES
v.
STATE.

Nov. 12, 1900.

Appeal from circuit court, Neshoba county; G. B. Huddleston, Judge.

"To be officially reported."

Wess Dees was convicted of murder, and appeals. Affirmed.

West Headnotes

*849 E. V. Hughston, for appellant.

Monroe McClurg, Atty. Gen., for the State.

TERRAL, J.

Wess Dees was convicted at a special term of the circuit court of Neshoba county of the murder of Elijah Fulton, and was sentenced to the state penitentiary for life. A regular term of the circuit court of Neshoba county is limited by law to six days. The circuit judge ordered a special term of said court to be convened on the 4th Monday of November, 1899, without specifying any period for its conclusion. The court in fact continued into the second week after it convened. Upon a day of the first week of said court the defendant was indicted, and upon a day of the second week of said term of court the defendant was put upon his trial, and was convicted and sentenced as aforesaid; and, because the trial of the defendant commenced in the second week, it is insisted that his trial and conviction are coram non judice and void. It is insisted that the circuit judge could not, by any authority vested in him, continue a special term of court longer than six days, the limit of a regular term of court, or, if he could do so, it must be done by him in the order calling the special term, and that otherwise the limitation of six days attaches.

Our Code (section 912) provides that a circuit judge may call a special term of court, when the business of the court may require; and section 630 provides that the court at a special term shall have full jurisdiction to hear and determine all civil and criminal business in the same manner as at a regular term; and we are of the opinion that the special term of the court in this case was properly continued during the second week. This case of Dees, at least, was there undisposed of, and required a trial; and for this matter, as well as for other matters, this special term was called, to continue, of necessity, so long as the business of the court should require. A regular term of court for every county is limited to a fixed number of days; but the number of days of a special term is not fixed by the statute, because it is to close up unfinished business, and the judge does not fix it, because the power to adjourn it is in his own hands, and, if predetermined, he might not meet the requirements of the business of the court. A special term of court is not limited by law to any fixed number of days, and, when called, the judge may keep it open so long as it may be necessary for the public service. Hutchinson's Code, c. 53, art. 8, provides that, when a special term of court shall have been ordered, it shall continue until all the business pending shall be finished. The express provision of this early Code is, we think, a necessary and reasonable implication from our present statutes on the subject; and this construction is strongly fortified by the principles of the common law. In People v. Sullivan, 115 N. Y. 185, 21 N. E. 1039, Sullivan was put upon his trial on the 12th of March, 1888, and at the end of the day the court adjourned until 10 o'clock, March 13th. On account of a snow blockade no court met on the 13th. On the 14th of March the trial was resumed, and upon his conviction he interposed an objection that the proceedings of the court were coram non judice and void. Peckham, J., said: "Nothing but the most rigorous rule of law should, under the circumstances, compel a court to admit its loss of jurisdiction, and the consequent failure of all proceedings taken before it. If, from the positive commands of any statute, or the decision of some court which is binding upon us, we are compelled to so decide, nothing more need be said. We do not think there is such a statute or decision. The term of the court having been regularly opened, its continued existence thereafter would by the common law be regarded as but one day. All the business done at a term of court was by that law referred to its commencement, unless the law directed certain acts to be done on certain days. There is an inherent power in a court to adjourn its proceedings from day to day as long as it is necessary to finish the business legitimately brought before it, unless by the terms of some statute its existence is sooner brought to a close." In Townshend v. Chew, 31 Md. 247, it is said "that a term of the circuit court continued until the call of the next succeeding term, unless it should affirmatively appear that before that time it had, by order of the judge, been adjourned sine die"; and this decision is approved in Freem. Judgm. § 90. In Railway Co. v. Hand, 7 Kan. 238, the court was adjourned on Saturday until the next Monday, but it did not in fact meet until the ensuing Wednesday, and it was argued that it had lost jurisdiction. It was, however, held that, the court having once opened, it so continued until the term expires, or an adjournment sine die is made. In State v. McBain, 102 Wis. 431, 78 N. W. 602, it is said: "According *850 to modern policy and methods, a term of court, having been duly commenced, continues until the court itself, by an affirmative judicial act, terminates it, or until the next term." In Re Dossett, 2 Okl. 369, 37 Pac. 1066, it is declared: "We are unable to say that after a session of court is once regularly commenced, on the day fixed by law, it can expire in any manner, except by adjournment sine die or by operation of law. This rule is too well settled to admit of controversy." Hume v. Bowie, 148 U. S. 245, 13 Sup. Ct. 582, 37 L. Ed. 438, may be cited as maintaining the principle here announced; and we conclude that the learned circuit judge rightly continued the court until the charge made against the defendant was tried and ended.

2. We think the corpus delicti was fully proven, and that the verdict is amply supported by the evidence.

3. We find no error in the instructions, as the instructions given cover the points made in those that were refused, wherefore the judgment of the circuit court is affirmed.

78 Miss. 250, 28 So. 849

End of case ------------



Supreme Court of Mississippi.
GENTRY
v.
GAMBLIN.

Oct. 29, 1900.

Appeal from chancery court, Neshoba county; A. M. Byrd, Chancellor.

"To be officially reported."

Suit by W. J. Gentry against E. D. Gamblin to remove a cloud from real estate, and for the possession thereof. From a decree sustaining a demurrer to the bill, plaintiff appeals. Reversed.

*809 Brame & Brame, for appellant.

CALHOON, J.

Gentry's bill in chancery shows that on June 7, 1885, Gamblin secured a debt he owed B. F. Quarles & Co. by trust deed conveying land to J. A. Jones, trustee. The debt not being paid at maturity, the land was sold and conveyed by a substituted trustee to B. F. Quarles & Co., the beneficiaries. Seeing that he had lost his land, he applied to them to sell it back to him, and they verbally agreed to reconvey if he would pay his *810 debt. Failing to get the money from others to whom he applied, he finally prevailed on R. L. Lee & Bros., a firm, to pay it if he would cause B. F. Quarles & Co. to convey to them, which he did, upon the oral agreement that he (Gamblin) should occupy the land and pay them the amount out of the crop, upon which payment Lee & Bros. were to reconvey to him, and if he failed to pay out of the first crop he would surrender the land to them. This conveyance from Quarles & Co. to Lee & Bros. was procured altogether by Gamblin. Lee & Bros., acting altogether through sympathy, took no other part in this negotiation than to receive the instrument from him, and pay Gamblin's debt. The bill charges that this conveyance is dated the ___ day of February, 1898, but the transcript of it in the record as an exhibit shows the date to be February 11, 1888. The bill proceeds to charge that Gamblin paid nothing out of the crop of 1888, and got another year from Lee & Bros. on a plea of poverty, and this process was continued annually until they conveyed to Gentry, the appellant, and complainant in the bill, by a conveyance, exhibited with the bill, without date, but acknowledged January 23, 1892. Gentry demanded possession, but Gamblin declined to give it up or pay the debt, claiming to be the owner because of some defect in the title from Quarles & Co. The prayer is to cancel any claim of Gamblin, as a cloud on complainant's title, and for writ of possession, or for subrogation to the rights of Lee & Bros. to the amount they paid Quarles & Co., and general relief. This bill was filed May 9, 1898, and was demurred to by Gamblin on divers grounds, and his demurrer was improperly sustained. By Code, § 500, such a bill lies where complainant has a perfect title, either legal or equitable. Here is shown certainly a perfect equitable title, as against Gamblin. He is estopped to deny that title passed by an instrument he obtained from Quarles & Co. to Lee & Bros., and used as good to cause them to expend money for him. This would be to ask a court of conscience to sanctify an unconscionable fraud. The analysis of the whole understanding between him and Lee & Bros. is that they should take the title he furnished, and he might repurchase from them for the sum they paid for the land to Quarles & Co. It is monstrous if he may defeat them on the ground that he furnished them a defective title, by which he induced them to part with their money. There is no reason and no authority produced to sustain such a view. If he paid, would he be heard to demand a warranty title? Clearly not. Money v. Ricketts, 62 Miss. 209. Under the same circumstances, he is equally estopped from setting up the statute of limitations of six years or three years. The land was their property, subject only to his right, by agreement, to repurchase it for a sum agreed on, and he held under them; and nothing under the statute of limitations can save him, short of ten years' open and notorious adverse possession in repudiation of their claim.

The prayer for relief in the alternative--that, if the court should hold the apparent conveyance in fee a mortgage to secure a debt, it should then decree a lien to secure the money--is entirely proper. Mr. Gamblin cannot in this case both hold the land and avoid the debt. We simply hold that he cannot both keep the land and avoid the debt. He must either yield possession or pay, if the facts maintain the bill. There is nothing multifarious in the bill, and the decree sustaining the demurrer is reversed, the demurrer sustained, and appellee required to answer within 60 days.

79 Miss. 437, 28 So. 809

End of case ------------




Supreme Court of Mississippi.
BYRD
v.
McDONALD.

Oct. 29, 1900.

Appeal from chancery court, Neshoba county; John Davis, Special Chancellor.

Suit by Edna J. McDonald against A. M. Byrd to redeem certain lands from tax sale. From a judgment overruling defendant's demurrer to the complaint, he appeals. Reversed.

Edna J. McDonald, who was complainant in the court below, filed her bill in the chancery court of Neshoba county against A. M. Byrd, the defendant below, to redeem certain lands described in her bill from a tax sale, and to have defendant's claim to said lands canceled as a cloud on her title. Complainant, in her bill, alleges that the lands in controversy were purchased by her father, John D. McDonald, at a tax sale on August 3, 1874; that her father died in 1876; that complainant was the only heir, and succeeded by right of descent to the lands; that at the time of her father's death she was a minor, and that she has recently become of age; that during complainant's minority, and since her father's death, the lands were again sold for taxes; that said defendant now claims and holds said lands by, under, or through some such deed or tax collector's conveyance; that the records of deeds of Neshoba county do not show any such conveyance. In her bill she calls upon defendant to discover in his answer the source and chain of title to his claim, and offers to pay defendant all taxes paid out by him on said lands, all damages provided by statute, and reasonable value of all permanent improvements put on said lands by defendant. To this bill defendant demurred, setting up, among other grounds, that the bill showed on its face that the said tax deed to John D. McDonald was to convey land sold at a tax sale which did not occur on the first Monday of March, or on the day to which such sale was continued, as required by Code 1892, § 3813, and therefore the deed conveyed no title to the said John D. McDonald. The demurrer was overruled, and defendant appealed.

*847 Brame & Brame and G. E. Wilson, for appellant.

Amis & Dunn, for appellee.

WHITFIELD, C. J.

It is clear that the sale on August 3, 1874, was on a day not authorized by law. The sale was, therefore, void. The decree is reversed, the demurrer sustained on this ground alone, and the bill dismissed.

28 So. 847

End of case ------------




Supreme Court of Mississippi.
STATE
v.
MOORE et al.

Dec. 19, 1898.

Appeal from circuit court, Neshoba county; G. B. Huddleston, Judge.

Demurrer to indictment against George Moore and another was sustained, and the state appeals. Affirmed.

*308 Wiley N. Nash, Atty. Gen., for the State.

W. M. Lewis, for appellees.

TERRAL, J.

The defendants were indicted in that they "on the ___ day of October, 1897, in Neshoba county aforesaid, in the public highway, near the premises of William Cannon, and in the presence of Mrs. A. T. Cannon, a female member of the family of the said William Cannon, did unlawfully make use of the following profane language: That they would 'kill the God damn chap,' meaning a minor child of the aforesaid William Cannon, who was then and there present," against, etc. The defendants demurred to the indictment. The court sustained the demurrer, and the state appeals.

Section 1033, Ann. Code 1892, punishes abusive language when uttered at "the dwelling house of another, or the yard or curtilage thereof, or upon any public highway, or any other place near such premises, and in the presence or hearing of the family," etc. The word "premises" in the indictment does not necessarily, or even ordinarily, mean a dwelling house, or the yard or curtilage thereof. Webster says the word "premises," when referring to property, means "a piece of real estate; a building with its adjuncts." Manifestly, the indictment is bad.

24 So. 308

End of case ------------



Supreme Court of Mississippi.
BAUM v. McDONALD et al.

Oct. 14, 1892.

Appeal from circuit court, Neshoba county; A. G. MAYERS, Judge.

Action by Joseph Baum for the use, etc., against M. A. McDonald and others. From a judgment rendered in favor of plaintiff, defendants appeal. Reversed.

*680 L. B. Moody, for appellants.

Hudleston & King, for appellee.

CAMPBELL, C. J.

Upon the facts shown by the record before us it would be difficult, if not impossible, to sustain a verdict for the complainants rendered upon unexceptional instructions, or without any; and it follows necessarily from this view of the case that it was erroneous to instruct the jury to find for the claimants.

Reversed, and remanded for a new trial.

11 So. 680

End of case ------------




Supreme Court of Mississippi.
MILTON D. TURNER AND WIFE
v.
J. W. MCADORY.

October Term, 1880.

BREACH OF WARRANTY. Rights of warrantee. Judgment credited by order of court. Jurisdiction.

If, after the breach of a warranty of title to land by the establishment of an adverse title paramount to that warranted, the warrantee purchases such paramount title, he has the right to maintain an action against the warrantor for money paid to his use; but a Circuit Court has no power to order a judgment obtained by the warrantor against the warrantee for the purchase-money of the land to be credited with the amount paid out by the warrantee for the paramount title, the claim therefor not having been reduced to judgment against the warrantor, and being unliquidated as to him.

When, after the breach of a warranty of title to land by the establishment of an adverse title paramount to that warranted, the warrantee purchased such paramount title, he had the right to maintain an action against the warrantor for money paid; but a circuit court had no power to order a judgment obtained by the warrantor against the warrantee for the purchase money of the land to be credited with the amount paid by the warrantee for the paramount title-the claim therefor not having been reduced to judgment against the warrantor, and being as to him unliquidated.

*1 ERROR to the Circuit Court of Neshoba County.

Hon. A. G. MAYERS, Judge.

In 1869, J. W. McAdory purchased a certain tract of land from Milton D. Turner and wife, and paid therefor a part of the purchase-money in cash, and gave his promissory note for the balance. Turner and wife conveyed the land to McAdory by a warranty deed. Some time thereafter, J. C. Wilson brought an action of ejectment against McAdory to recover this land. Turner and wife were notified of the action, and were admitted as defendants thereto. But in 1874 Wilson obtained a judgment for the recovery of the land. Thereupon McAdory bought in Wilson's paramount title, paying therefor $133.33 in cash and giving his two promissory notes, due, respectively, on the 1st of November, 1875 and 1876, for $133.33 each.

Turner and wife sued McAdory on his notes to them, and on the 12th of March, 1877, recovered a judgment for $485.

Wilson also sued McAdory on the note given him, and on the 14th of March, 1878, recovered a judgment thereon for $297.66.

In September, 1879, McAdory filed a petition in the Circuit Court of Neshoba County, where all of said judgments were obtained, setting forth the above-stated facts, and asking for a supersedeas to suspend the collection of the judgment of Turner and wife until the next term of the court, and that they be summoned to appear and show cause why their judgment should not be satisfied on record to the amount of principal and interest paid and to be paid by the petitioner to Wilson for his paramount title. The petition also alleged that Turner and wife are insolvent; that petitioner will be compelled to pay their judgment before the next term of the court, unless it be superseded; and that he has paid a part of the money due on Wilson's judgment, and will be compelled to pay the balance before the next term of the court.

The supersedeas was granted in vacation, and at the next term the court sustained a motion by McAdory, based upon his petition, to enter as a credit upon the Turner judgment the amount paid by McAdory to Wilson and the balance still due on Wilson's judgment. Turner and wife made no defence to McAdory's petition, and judgment was rendered therein by default. To that judgment Turner and wife sued out a writ of error.

L. Brame, for the plaintiffs in error.

1. The judgment recovered by Turner and wife against McAdory adjudicated all the matters of difference between the parties thereto. It settled everything that was or might have been litigated. Gaines v. Kennedy, 53 Miss. 103.

McAdory's petition in the Circuit Court was nothing more than an effort to go behind the judgment and assert a defence in reference to a motion that was adjudicated. It is plain that he could have pleaded a total failure of consideration as to the note as soon as the judgment in ejectment was recovered by Wilson under the paramount title.

*2 2. It is not alleged that Turner and wife authorized McAdory to buy in the title of Wilson, nor that they consented to it. That arrangement was made between McAdory and Wilson, and Turner and wife had no privity or connection with it.

3. The petition showed that the petitioner was not entitled to any relief. And "the failure of the defendant to make defence cannot give to the plaintiff a right which, according to his own showing, he was not entitled to exercise under the established principles of law." Railroad Co. v. Sackett, 27 Miss. 739; Belew v. Jones, 56 Miss. 342.

4. The proceedings in the court below were unauthorized. There was no direct payment of the judgment, but it was attempted, by an independent suit, to establish an equitable claim to be applied as a payment thereof. The court had no jurisdiction to order the judgment to be cancelled.

L. Brame also argued the case orally.

R. G. & H. W. Rives, for the defendant in error.

McAdory was not entitled to sue Turner and wife in assumpsit until he had completed the purchase of the paramount title and perfected the protection of their covenant of warranty. Kirkpatrick v. Miller, 50 Miss. 522. He did not do this until long after they had obtained judgment against him. He could not have maintained assumpsit for that which he had only promised to pay, nor could he have maintained such action for any small amount paid by him, there being still a part due, for that did not secure the paramount title and protect the covenant of warranty.

But, while Turner and wife are insolvent, and a judgment against them would be worthless, they have a judgment against McAdory which they are about to force him to pay. Surely, justice and fair-dealing demand that their judgment against him for the purchase-money of the land should be treated as satisfied to the extent of the sum which he has been compelled to pay for the protection of their warranty, and which he would lose, by reason of their insolvency, if left to his suit in assumpsit against them. A court of law has equitable jurisdiction in relation to its process and judgments, and may and ought to take into consideration, as a court of equity, the insolvency of a party as a ground for equitable interference. Simpson v. Hunt, 14 Johns. 70; Officers of Court v. Bank of Port Gibson, 4 Smed. & M. 431. See also Planters' Bank v. Spencer, 3 Smed. & M. 313.

R. G. Rives made an oral argument also.

CAMPBELL, J., delivered the opinion of the court.

By his purchase of the outstanding paramount title, McAdory became entitled to maintain an action against his warrantor of the title for money paid to his use, but the Circuit Court did not have the right to order the judgment in favor of the warrantor against McAdory to be credited by the amount due to the latter from the former. Courts of law have gone to the extent of ordering mutual judgments between parties to be set one against the other, as an incident to the administration of justice between litigants; but there is no precedent for a court of law, in a system where the administration of justice is divided between courts of chancery and courts of law, to order a demand in favor of the defendant in a judgment to be credited as a payment of the judgment. On this ground we reverse the judgment, and dismiss the motion of McAdory, and discharge the supersedeas of the judgment against him.

58 Miss. 27, 1880 WL 6882 (Miss.)

End of case ------------




Supreme Court of Mississippi.
J. W. MCADORY
v.
MILTON TURNER ET AL.

April Term, 1879.

1. PRACTICE. Time of pleading. Power of Circuit Court.

The Circuit Court has authority, before judgment rendered in a case, to allow a defendant to plead out of time, where a reasonable excuse is shown for the failure to plead sooner; and this authority is not denied in Pool v. Hill, 44 Miss. 306.

2. SAME. Motion for time to plead. Bill of exceptions. Chancery jurisdiction.

A defendant in assumpsit obtained leave to plead within ninety days. He failed to plead within the time allowed, and his pleas filed on the first day of the next term were stricken out, on motion of the plaintiff. The defendant then moved for leave to refile his pleas, and in support of the motion presented an affidavit of his attorney, stating that the pleas contained a good defence, and great injustice would be done if the defendant should not be permitted to plead; and stating, as an excuse for the failure to plead in time, that it was an invariable custom of many years with affiant and plaintiff's attorney not to exact strict compliance with rules and orders as to the time of pleading, and that all either had ever required of the other was due notice of the nature of the defence, which notice affiant had given to plaintiff's attorney in this case long before the expiration of the ninety days, and that affiant had no intimation that such custom would be violated in this instance. The motion was overruled, and judgment rendered against the defendant, who sought redress by a bill in chancery. Held, that the defendant should have brought up his case on a bill of exceptions to the action of the Circuit Court in overruling his motion, and upon the showing here made this court would have granted leave to plead; but that chancery has no jurisdiction of the matter.

*1 APPEAL from the Chancery Court of Winston County.

Hon. L. BRAME, Chancellor.

Turner sued McAdory in an action of assumpsit, in Neshoba County. At the appearance term, McAdory's attorney obtained leave of the court to plead within ninety days. The pleas were not filed within the time allowed, but were filed on the first day of the next term of the court. Upon motion of the plaintiff, by his attorney, the pleas were stricken from the file. Immediately thereupon, the defendant moved for leave to refile his pleas, and supported his motion by an affidavit of his attorney, stating that the pleas contained a just and legal defence to the action, and that great injustice would be done the defendant if he was not permitted to file them. The affidavit also stated, as the reason of the failure to plead within the time allowed, that the plaintiff's attorney and the affiant, the defendant's attorney, both resided in the town of Louisville, in Winston County; that very soon after the order was granted allowing ninety days in which to plead, and long before the expiration of that time, the affiant informed the plaintiff's attorney of the defence which would be made; that affiant and plaintiff's attorney had been practising law in the same town for many years, and it was the invariable custom with them not to require a strict observance of the rules of law and practice as to the time of filing pleas, but due notice of the defence intended to be made was all that either required of the other, and affiant had no intimation that this custom would be violated, until the motion to strike out the pleas in this case; and that the notice of the defence given to plaintiff's attorney by affiant in person was better than if he had filed the pleas in the clerk's office, twenty-eight miles from where both attorneys resided. The Circuit Court overruled the motion, and entered a judgment against the defendant.

McAdory then filed a bill in chancery against Turner and the officers of the court, narrating the proceedings in the Circuit Court, stating his defence to the action of assumpsit, and praying that the judgment be set aside and an opportunity afforded complainant of having a new trial upon his rejected pleas, or that the execution of the judgment be perpetually enjoined.

The defendant demurred to the bill. The demurrer was sustained, and the complainant appealed.

Rives & Rives, for the appellant.

The action of the Circuit Court in overruling the motion for leave to plead was in accordance with the requirements of the statute. Code 1871, sect. 631; Pool v. Hill, 44 Miss. 306. At the time the motion was made, we believed it to be within the legal discretion of the court to sustain or overrule the motion, as might seem proper, but upon further investigation we discovered our mistake.

Equity will enjoin a plaintiff from enjoying the benefits of an unjust judgment, unconscientiously obtained, where the bill of complaint shows that the defendant in the judgment had a good defence to the action at law, and also presents a good excuse for his failure to make such defence. Willard on Inj. (2d ed.) 174, 176, 191; Story's Eq. Jur. (5th ed.), sect. 899; Engel v. Scheuerman, 2 Am. Law Rep. 573; Smith v. Walker, 8 Smed. & M. 13.

J. P. Allen, for the appellees.

*2 Equity will not relieve against a judgment at law unless it be shown that the judgment was obtained by mistake, accident, misrepresentation, fraud, or deceit, and without laches or neglect on the part of the defendant. 1 How. 108; 11 Smed. & M. 144; 13 Smed. & M. 698; 14 Smed. & M. 158; 23 Miss. 406, 407; Story's Eq. Jur., sects. 894-896; 33 Miss. 171; 14 Smed. & M. 160; 52 Miss. 402. The bill shows that the judgment was caused by the gross neglect of complainant or his counsel. 5 How. 104.

The judgment of the Circuit Court cannot be revised in chancery. 1 Smed. & M. 238; 3 Smed. & M. 294, 439. The appellant should have made his defence in the Circuit Court. 4 Smed. & M. 358; 7 Smed. & M. 188, 607; 8 Smed. & M. 131, 139; 10 Smed. & M. 108, 282, 502, 563, 596. The action of that court in overruling the appellant's motion was correct. Marshall v. Hamilton, 41 Miss. 229; Pool v. Hill, 44 Miss. 306; Hunter v. Wilkison, 44 Miss. 728; 11 Smed. & M. 411.

Nugent & McWillie, on the same side.

CAMPBELL, J., delivered the opinion of the court.

The remedy of appellant was to tender a bill of exceptions to the refusal of the Circuit Court to allow him to plead on the showing made, and to bring the case to this court, which, on the facts stated in the bill, would not hesitate to grant leave to plead to the action.

It is a mistake to suppose that Pool v. Hill, 44 Miss. 306, denies to the Circuit Court authority to allow a defendant to plead out of time, where a reasonable excuse is made for not having pleaded sooner, and when the court has control of the matter, as it has before judgment.

The error of the Circuit Court, as shown by the bill, cannot be corrected in chancery, and the demurrer to the bill was properly sustained.

Decree affirmed.

56 Miss. 666, 1879 WL 6424 (Miss.)

End of case ------------




Supreme Court of Mississippi.
L. C. & J. ELSON
v.
B. J. BARRIER.

January Term, 1879.

1. DEED OF TRUST. Personal property. Sale out of county of record. Notice.

Where a deed of trust on personal property is recorded in one county, and the grantor removes the property into another county and sells it, the rights of the beneficiary are protected by sect. 2305 of the Code of 1871; and, as therein provided, the buyer is chargeable with full legal notice of the deed. and the rights which it confers.

2. SAME. Assumpsit by grantee. Title and lien distinguished.

A deed of trust confers title to the property embraced in it; and, after condition broken, the grantee can maintain assumpsit, or any other action in respect to such property that an owner could maintain on account of his property. But a party having merely a lien can maintain no action in respect to the property affected by his lien, which requires title for its maintenance. Westmoreland v. Wooten, 51 Miss. 825, and Cloud v. The State, 53 Miss. 662, explained.

*1 ERROR to the Circuit Court of Lauderdale County.

Hon. J. S. HAMM, Judge.

In April, 1876, J. C. Ward executed a deed of trust on his crop to be grown that year, to R. Wilson, as trustee, to secure a debt of $93 which he then owed B. J. Barrier, and $70 to be advanced in supplies to him during the year by Barrier. The parties resided in Neshoba County, the crop was to be produced there, and the deed of trust was executed and recorded in that county. In September, 1876, Ward notified Barrier that he had some cotton ready to be ginned. Barrier gave Ward bagging and ties with which to bale the cotton, and directed him to carry it to a certain named gin, which Ward did. When the cotton was baled, Ward asked permission of Barrier to carry it to the town of Meridian, in Lauderdale County, instead of to Philadelphia, the place at which the deed of trust required that it should be delivered. Barrier gave his permission, and Ward hauled the cotton to Meridian with Barrier's wagon. When Ward reached Meridian, he sold the cotton to L. C. & J. Elson. Barrier, arriving soon after, demanded of the Elsons the cotton, or its value; and upon their refusal to comply with his demand, he brought, in his own name, an action of assumpsit for the value of the cotton. The deed of trust required Ward to deliver his cotton to Barrier as soon as it was made ready for market; and it also empowered the trustee to take the mortgaged property into his possession, and, after advertising, to sell the same, whenever he or Barrier should deem it to be endangered as security for the indebtedness.

Barrier obtained a judgment for $114.32, to which the defendants sued out a writ of error. Several instructions given for the plaintiff below were excepted to by the defendants, but are not set out here, because not considered by this court.

W. H. Hardy, for the plaintiffs in error.

The cotton was never bought by Barrier, there being no price agreed upon, and no delivery. The transaction lacks every essential of a sale and purchase. The pretence that Barrier bought the cotton is an effort to evade the decision in Westmoreland v. Wooten, 51 Miss. 825, and Cloud v. The State, 53 Miss. 662.

E. Watkins, for the defendant in error.

The verdict is supported by the evidence. The delivery of the cotton to Barrier was complete. Jordan v. Harris, 31 Miss. 257. As to the price, the law presumes that Barrier would allow Ward, on his debt, what the cotton was worth. Smith v. Sparkman, 55 Miss. 649. The value of cotton on a given day, being easily ascertained, may be proven. Story on Sales, sect. 220; Halsey v. McLean, 10 Bing. 487.

CAMPBELL, J., delivered the opinion of the court.

The result reached in the Circuit Court in this case is correct, and will not be disturbed, although the contest was made on what we do not regard as the real ground of controversy suggested by the facts.

*2 Plaintiffs in error were purchasers of the cotton conveyed by the deed of trust, with full legal notice of the right of defendant in error as the beneficiary in the deed of trust. The fact that the cotton was sold in a county other than that in which the deed of trust was recorded, did not release it from the deed of trust. Code, sect. 2305; Bogard v. Gardley, 4 Smed. & M. 302.

It is claimed that the cases of Westmoreland v. Wooten, 51 Miss. 825, and Cloud v. The State, 53 Miss. 662, deny the liability of the purchasers of the cotton to answer in assumpsit for the value of the cotton. Not so. A deed of trust does not create a mere lien; it confers title; and, after condition broken, the legal title is in the grantee, and he may maintain any action which an owner can maintain. A lien is a charge upon a thing, a right to resort to it for satisfaction, but is neither jus in re nor jus ad rem; and, therefore, no action can be maintained by the lien-creditor which requires title for its maintenance, for the obvious reason that he has not title. Hence, the manifest distinction between the two classes of cases. The difference is between a mere right to fasten a charge on a thing, and a title to a thing, with all the incidents of title.

Affirmed.

56 Miss. 394, 1879 WL 3975 (Miss.)

End of case ------------




Supreme Court of Mississippi.
J. J. PERRY
v.
BARNEY LEWIS.

October Term, 1873.

1. EXEMPTION LAWS.--The theory, as well as the text, of the exemption laws, is, that the property therein enumerated shall be exempt from seizure and sale, under execution and attachment. Code 1857, art. 280-1.

2. SAME--ACTS 1865, PAGE 137.--This statute indicates two modes to determine prima facie the right of exemption. The one, in case of doubt, the sheriff may summon three disinterested citizens to resolve it. Section 4. The other, the judgment debtor may designate the property specially claimed as exempt. Section 5. "And any officer who shall levy or seize property exempt, etc., shall be liable to an action of trespass, or on the case."

3. SAME--RULE AT COMMON LAW.--The rule at common law was that the sheriff must know, at his peril, that the property seized is liable to the writ. If he made an improper seizure, although actuated by good faith, and in mistake, the remedy of the party aggrieved was trespass for the unlawful taking and asportation.

4. FORMER RECOVERY--GENERAL PRINCIPLE.--The general principle is that a judgment between the same parties for the same cause of action is conclusive, as between them. The first action must be competent to dispose of the suit on its merits. The first action is not a bar to the second, if the judgment were rendered for faults in the declaration or pleadings. The true test is, whether the same cause of action was litigated and adjudicated in the former suit. The form of the action may be different, but the grievance and wrong complained of, must be the same in both suits. Agnew v. McElroy, 10 S. & M., 552.

5. CASE IN JUDGMENT.--Although the first action may be misconceived, and might have been defeated for that reason, yet, if the defendant makes no objection, but pleads to the merits, and there is verdict and judgment and satisfaction made, this is a bar to the second suit, for the same cause, and plaintiff will not be heard to object that the first action was improper, and ought not to have been sustained.

*1 Error to the circuit court of Newton county. Hon. ROBERT LEACHMAN, Judge.

Lewis sued Perry in the court below, in trespass, for taking and converting to his own use, one horse, two yoke of oxen, and one wagon, valued at $1,000.00. Defendant pleaded not guilty, and specially: 1. That, at the December term of the Newton circuit court, plaintiff had sued him on his official bond, as sheriff of that county for the same trespass in taking said property, and recovered judgment therefor in the sum of $180.00 and costs, which was paid. (To the plea the plaintiff demurred, upon the ground that this was an action of trespass, and the alleged judgment on bond, with satisfaction thereof, is no defense.) 2. That said supposed trespass was the taking of said property under a lawful writ of attachment issued at the suit of Ward & Co. against Lewis (particulars of which the plea set forth), and so making such levy, defendant, as sheriff, returned said writ into court; and said Ward & Co. executed to defendant, before return day of the writ, a good and sufficient bond of indemnity, conditioned according to law for levying said attachment, which bond was by him duly returned into court with said writ and is in full force. (There was a demurrer to this plea also, on the grounds: 1. That it sets up the indemnity bond as a justification of the trespass. 2. That it did not aver that said property was subject to the attachment. 3. Nor allege that any doubt arose as to title. 4. Nor show that said property was not exempt from seizure and sale under legal process.)

The demurrers were sustained without leave to answer over.

Defendant's third special plea was filed after judgment on demurrer, and was stricken out as being a repetition of the second plea demurred to. It sets up the fact of a previous suit by plaintiff against Perry, as sheriff, and the sureties on his official bond, for the value of said property, in which suit defendant, Perry, by his plea, "acknowledged the sum of $180.78 to be due said plaintiff on account of said property and his acts in relation thereto," and with said plea tendered said sum of money into court, and plaintiff "accepted the same as a full satisfaction of his suit and this claim against said defendant on account of the value of, and defendant's acts in relation to, said property;" that accordingly judgment was entered for said sum and costs, which were paid before commencement of this suit.

Defendant's fourth special plea, to which there is no replication, avers payment of said sum in mitigation of damage claimed, and a bill of particulars is filed therewith.

On the trial the proof was that the levy of the attachment was made as averred in the pleadings, on the property, which Lewis claimed as exempt, although he did not inform the officer at the time of the levy that the property was exempt. The attorney for the plaintiff in the attachment accompanied the officer, and was told by Lewis that the sheriff "had better have a bond of indemnity," to which the attorney replied, that "it had been provided." Lewis suffered considerable damage; was compelled to break up his business and remove his family to Neshoba county, at great expense; his family suffered from privation, and he was put to considerable expense on account of the levy, attending court, paying attorney's fees, etc. The property is valued at various sums, from $325.00 to $415.00. It sold for $180.00.

*2 The court instructed the jury for the plaintiff:

1. The sheriff is liable for the acts of his deputy; and if the jury believe that the defendant recognized the act of his deputy, and sold the property, he became a trespasser from the beginning. 2. Authorizing the jury to give exemplary, punitive and vindictive damages in view of the enormity of the offense. 3. The jury may render such a verdict as they may think proper, even exceeding the amount proven, and may give "smart money" or vindictive damages if they think the evidence justifies it. 4. If the jury believe that the property levied on was exempt from attachment, they must find for the plaintiff.

The defendant asked the court to instruct the jury, that if they "believed that the property, at the time of the levy, was not worth more than $180.00, they will find for defendant;" which was refused by the court. Defendant asked this charge: "A sheriff cannot be held responsible for the action of his deputy in committing a trespass," which was modified as follows: "The court instructs the jury, that if they believe that J. J. Perry, in his own proper person, or by the directions to his deputy, or his approval of afterwards, was not guilty of the acts complained of as a trespass in plaintiff's declaration, they will find for defendant.

The jury found a verdict for plaintiff, and assessed his damages at $800.00.

Defendant moved the court for a new trial, because: 1. The court erred in sustaining the plaintiff's demurrers to defendant's second and third pleas. 2. And in striking out defendant's fourth plea. 3. And in giving the instructions. 4. And in refusing those asked by defendant. 5. The damages are excessive. 6. Misconduct of the jury. The motion was overruled; defendant excepted, and brings his case to this court by writ of error, and for error assigns the judgment of the court below in overruling his motion for a new trial.

George L. Potter, for plaintiff in error.

Harris & George, for defendant in error.

The reporters find no brief on file on either side in this cause.

SIMRALL, J., delivered the opinion of the court:

The theory, as well as the text of the exemption laws, is, that the property therein mentioned shall "be exempt from seizure and sale under execution and attachment." Art. 280, 281, Code, 1857, p. 529; 1 sec., act. 1865, p. 137. Two modes are indicated in the act of 1865, to determine, prima facie, the right of exemption, (4th and 5th sections). In case of doubt, the sheriff may summon three disinterested citizens of the county to resolve it. Under the 5th section, the judgment debtor may designate the property specifically claimed as exempt, "and no property so designated, shall be seized by the officer, otherwise than as provided for in the 4th section." That is to say, such designation, raises a doubt as to the liability of the property; and before the sheriff shall proceed further, he must refer it, for resolution, to "three disinterested citizens."

*3 The last clause of the 5th section subjects any officer who shall levy or seize property exempt, etc., to the action of trespass on the case.

The rule at common law was, that the sheriff must know at his peril, that the property which he seizes is liable to the writ. If he made an improper seizure, although actuated by good faith, and in mistake, the remedy of the party aggrieved was trespass for the unlawful taking and asportation of the goods.

In this case, the sheriff did not take the decision of three citizens as to the "exemption" of the property, nor did the debtor specifically designate the several articles as claimed to be exempt. The levy was made on the sheriff's responsibility, and if unlawfully made he incurred liability either in trespass or case.

The greatest difficulty presented for solution is the sufficiency, in law, of the second plea to bar the action. That plea, in substance, sets up that the plaintiff, before the institution of this suit, brought an action of debt upon his official bond, as sheriff, alleging as a breach, "a trespass upon the same property described, and the same, as in the plaintiff's declaration alleged in this suit, the act complained of, as a breach of said bond being the same and one with the act of trespass in this suit," and that such proceedings were had that the plaintiff recovered judgment for $180.00 and costs, which judgment the defendant has satisfied by paying the $180.00 to the plaintiff.

It is contended by the counsel for the defendant in error that a recovery in the action of debt, upon the bond, is no bar to this action of trespass. The general principle is, that a judgment between the same parties, for the same cause of action, is conclusive between them. The first action must be competent to dispose of the case on its merits, and such disposition has been made. The first action is not a bar to the second if the judgment were rendered for faults in the declaration or pleadings. The true test is, whether the same cause of action was litigated and adjudicated in the former suit. The form of the action may be different, but the grievance and wrong complained of must be the same in both suits. Agnew v. McElroy, 10 S. & M., 552. The plaintiff may show that the latter suit is for a different cause of action. If the defendant plead the former recovery, the plaintiff may take issue, or he may admit the recovery, and set up that it was for a different subject matter. 3 Chit. Pl., 929, 1159. The plea does, with sufficient clearness, aver that the breach of the bond assigned, was the same trespass as complained of in the plaintiff's declaration in this suit.

But it is said that the plaintiff in the suit upon the bond could not have redress for the trespass. But can the party set up that objection? By voluntarily bringing that suit to obtain damages for the unlawful seizure of his goods, and prosecuting it to judgment, and then accepting the money, ought he not to be precluded from asserting, in this suit, that the action of debt was improvidently brought? The defendant made no objection to the form of the action. The judgment was upon the merits, and then the money was accepted in its satisfaction. The matter in litigation complained of, as the injury, was the unlawful seizure of the exempt property--the same wrong and injury charged against the defendant in this suit. The sheriff might have objected that he was not liable, upon his bond, for the trespass. He, however, waived the point, and contested with his adversary on the merits. After the plaintiff has prosecuted his suit to a recovery, and received the money awarded as compensation, it is too late for him, in this suit, to object to the form of remedy originally adopted. We think the plea, if proved, is a bar to the action. In this view of the case, it is unnecessary to consider the other assignments of error.

*4 Judgment reversed and cause remanded.

49 Miss. 443, 1873 WL 4161 (Miss.)

End of case ------------




Supreme Court of Mississippi.
E. D. GAMBLIN
v.
THE STATE OF MISSISSIPPI.

October Term, 1871.

1. CIRCUIT COURT -- INSTRUCTIONS -- PRACTICE. -- It is proper for a circuit court to refuse charges which are a mere repetition of those already given.

2. NEW TRIAL -- WHEN VERDICT WILL NOT BE SET ASIDE. -- This court will not interfere with the verdict of a jury which has not been misled by instructions, except in very clear cases of error, passion or prejudice.

3. INDICTMENT FOR EXHIBITING DEADLY WEAPON -- FORMAL DEFECT. -- The mere omission of the word "manner" after the words "rude, angry and threatening" in an indictment for exhibiting a deadly weapon, is a formal defect and the subject of amendment under the statute. In such an indictment it is not necessary to charge that defendant was "carrying" the weapon. It is sufficient to charge that having it, he exhibited it, without the words "or carrying."

4. SAME -- NOT NECESSARY TO CHARGE THAT THE PISTOL WAS LOADED. -- In an indictment for unlawfully exhibiting a pistol it is not necessary to charge that the pistol was loaded.

*1 ERROR to the circuit court of Neshoba county. LEACHMAN, J.

The minute detail with which the court has, in its opinion, presented the points it has considered, leaves nothing for the reporter to state.

S. A. D. Steele, for plaintiff in error.

I. The indictment was fatally defective. As it was returned by the grand jury, it charges no offense. The word in the statute that defines the act denounced by the legislature is omitted. It is not unlawful to exhibit a weapon in a ""rude, angry or threatening" state of mind, but it must be exhibited in that """manner," and if not averred in the indictment to be in that "manner," it is no violation of the act, and hence this indictment, as returned by the grand jury, charges no offense. The indictment being fatally defective in substance, the question arises on the motion to quash, and it is clear that the court could properly have rendered but one judgment: to sustain the motion. There can certainly be no question on this point.

II. It was error to sustain the motion to amend. At common law, I apprehend, there can be no question that an indictment could not be amended, in substance, after it was returned by the grand jury. A rule of construction that, I believe, universally obtains is, that a statute in derogation of the common law must be strictly construed. With this rule of construction in view, I respectfully submit that there is no statute that will justify this amendment without the consent of the defendant. The only statutes that bear on this question, that I have been able to find, are, art. 262, p. 615, and art. 257, p. 615, Rev. Code, 1857. To construe these articles together (and they are separate articles of the same act, and must be so construed), and there is no authority for the amendment.

The honorable chief justice, in a very well-considered opinion, clearly intimates that such an amendment cannot be made. Unger v. State, 42 Miss. 649. But if it was correct to overrule the motion to quash, there could be no propriety in amending the indictment. If the indictment was defective in form only, the motion might have been confessed, and leave asked to amend, and, under the articles above referred to, the court have allowed the amendment to be made, but I do insist that it is error to allow the indictment to be amended in substance, at the time it was ordered, against the consent of the defendant. I do insist that it is ridiculously absurd, as well as erroneous, for the court to hold the indictment good, and then order it to be amended.

III. The indictment was not amended as ordered, hence the amendment on which the defendant was tried charges him with no offense.

IV. The motion for a new trial should have been granted.

V. The fifth charge is the law, and should have been granted.

J. S. Morris, Attorney-General.

The first real question presented upon the record in this case is that arising upon the amendment of the indictment by the insertion of the word "manner" after the words "rude, angry and threatening." It is not denied that the amendment might properly be made; it is not denied that a motion for this purpose was properly made and properly sustained, but it is insisted that, although it was the judgment of the court that the indictment should be so amended, yet, in truth and in fact, the word "manner" was not actually inserted in the indictment as by the judgment of the court might have been done. Upon this point, it is sufficient to say that an actual amendment in such a matter is not necessary. Under the English statute of amendments and jeofails, which was always more strictly construed than ours, Lord Hendrick said: "An actual amendment is never made, but the benefit of the act is obtained by our overlooking the exception." Rex v. Landaff, 2 Strange, 1011; 2 Tidd's Prac. 928. See, also, Small v. Cole, 2 Burr. 1169. I am not aware that this question has ever been before this court; but in Tennessee the supreme court has gone much farther than ever the English courts have. Said McKinney, J., in the case of Eakin v. Burger, 1 Sneed, 417: "There is no force in the objection that no application was made in the circuit court to amend for the purpose of supplying the proper averments under the statute. The general rule under statutes of amendments is, that the amendments need not, in point of fact, be made. The benefit of the statute is obtained by the court overlooking the exception or considering the amendment as made." In the case thus disposed of, it appears that "no application had been made to amend in the circuit court;" but the court "overlooked the exception or considered the amendment as made." But in the present case the application to amend was formally made and sustained before the trial. See, also, 1 Bish. Cr. Pr., § 386, and note 1.

*2 The assumption insisted on by counsel for plaintiff in error, that the court below ought to have sustained the motion to quash the indictment, and then have sustained a motion for leave to the district attorney to amend, would lead to an absurdity. How could a court amend an indictment after it had been quashed?

The other question raised by the assignment of errors, and in the argument for plaintiff in error, relate to the sufficiency of the evidence to warrant the conviction, and the correctness of the instructions. Upon all this I think it very clear, from an examination of the record, that this court will not hesitate for one moment in saying that the testimony warranted the verdict of guilty; that the jury was fairly and, as regards the interests of the prisoner, liberally instructed; that the instructions asked and refused on behalf of the defense were properly refused; that there is no error prejudicial to the rights of the plaintiff in error, and that the judgment must be affirmed. The habit of carrying and exhibiting deadly weapons in a lawless manner, upon slight or no provocation, in crowds and in public places, has been, and is now, productive of vast and incalculable evil, not alone to individuals and to families, but also, and to a still greater extent, to the state. This is a clear and an aggravated case, and the affirmance of the verdict of the jury and judgment of the circuit court will be just and salutary in its example.

TARBELL, J.:

The plaintiff in error was indicted at the September term of the Neshoba county circuit court, 1867, under art. 56, Code, 582, for the exhibition of deadly weapons. At a subsequent term, a motion to quash was submitted on the following grounds: "1st. Because the indictment does not charge that the pistol was loaded; 2d. It does not charge that the defendant was carrying the pistol charged to have been exhibited; 3d. It does not charge the defendant with exhibiting the weapon in a rude, angry and threatening manner." This motion being overruled, the accused pleaded not guilty, the district attorney having obtained leave to amend the indictment by inserting therein the word "manner." On the trial the court instructed the jury for the state as follows: "If the jury believe from the evidence that the defendant, E. D. Gamblin, exhibited the pistol in a rude, angry and threatening manner, in the presence of three or more persons, and not in his necessary self-defense, he is guilty as charged, and the jury should so find."

The following instructions were given for the defendant: 1st. "To constitute the offense charged in the indictment, the state must prove that the defendant exhibited the pistol in a rude, angry and threatening manner, and not in necessary self-defense, to the exclusion of every reasonable doubt, and unless the state has so proven, the jury should find the defendant not guilty." 2d. "The jury should look at all the testimony in the cause, and, if they believe that the defendant had reasonable cause to apprehend an assault on himself and drew his pistol to defend himself, they should find him not guilty." 3d. "If the jury have a reasonable doubt as to the guilt of the defendant, arising out of the testimony, they should acquit."

*3 The following, asked for defendant, were refused: 1st. "If Gamblin had reason to believe that there was a conspiracy between Franklin and Salter to do him personal violence, he had a right to draw his pistol in self-defense, and if the jury believe from the evidence that Gamblin did draw his pistol after he knew that Franklin had drawn his, and when he was about to be assaulted by Salter, and that he drew it in self-defense, then the jury should find the defendant not guilty." 2d. "If the jury are in doubt as to whether the pistol was drawn in self-defense or not, arising out of the testimony, they should acquit."

The jury having returned a verdict of guilty, a new trial was asked, on the ground that the court erred in giving the instructions asked for the state, in refusing two of the instructions asked by the defendant, and because the verdict was contrary to law and evidence. Another trial was denied, and the defendant sued out a writ of error. In this court, the following are assigned as errors: 1st. The action of the court in overruling the motion to quash the indictment. 2d. In sustaining the application to amend. 3d. The indictment not having been amended in fact charges the defendant with no offense. 4th. In overruling the motion for a new trial.

There were several witnesses sworn, detailing the circumstances upon which the plaintiff in error was convicted. The occurrence took place in the grand jury room in the presence of several persons, some of whom were examined on the trial. The difficulty grew out of words reported to have been used by Gamblin with reference to another party, which, being denied by him, an altercation was the result, and pistols were drawn by Gamblin and another, but it is urged by counsel that the accused drew last and only in self-defense.

The charges given to the jury presented, with the most perfect impartiality, every phase of the case which could be considered by them under the statute for the violation of which the accused was on trial. In fact, those charges were almost exceptional for brevity, clearness, directness, and the absence of matter calculated to confuse or create a leaning for or against the defendant. The instructions asked, but refused, are mere repetitions of the law and the questions propounded in those given, while they are objectionable in construction, in a partial rehearsal of testimony, and in a mode of expression calculated to mislead. Those given are models of precision and impartiality, while those refused presented no new questions of law, and were open to the objections already stated.

Of the testimony, the jury are so far the exclusive judges, that, except in very clear cases of error, passion or prejudice, an appellate court will not interfere with their verdicts. Whether the verdict in a given case is strictly in accordance with the testimony, a court can determine only by substituting the judgment of the judges for that of the jury, which would be in violation of all the rules in such cases; but the opinion of the former upon questions of fact, like that of the latter, would be subject to the imperfections of humanity, with the same liability to err in the one as the other. Within the rule prescribed to us, we see no occasion to undo the action of the jury in the case at bar, unless, in view of the evidence, their finding is clearly wrong. The law has wisely imposed a delicate and responsible duty upon jurors, and it is not for the court to rejudge their judgment. Kelly et al. v. Miller, 39 Miss. 17.

*4 The only meritorious question in this case is, whether the court erred in refusing to quash the indictment, which charged that E. D. Gamblin, "having a certain deadly weapon, to wit, a pistol, did then and there exhibit the same in a rude, angry or threatening, in the presence of three or more persons, and not in his necessary self-defense," etc., omitting in the original the word ""manner." An examination of article 56, Code, 582, shows that, except the omission of the word "manner" after the word "threatening," the indictment conforms precisely to the terms and language of the statute. 1 Bish. Cr. Pr., § § 375, 385; Kline v. The State, 44 Miss.; Riley v. The State, 43 ib.; Surratt v. The State, supra, p. 601.

In Unger v. The State, 42 Miss. 642, the indictment was found in 1866. During the trial, in 1867, the court permitted the presentment to be amended by changing D. W. Humphreys into D. G. Humphreys. It appeared from the testimony that the property charged to have been stolen (the indictment being for larceny) belonged to David George Humphreys. On error, this was held to be a fatal defect, which might have been taken advantage of before verdict. The defect, however, was held to be cured after verdict by the statute of jeofails. Art. 7, Code, 573.

Kline v. The State, 44 Miss. 317, was an indictment under art. 226, Code, 607, which enacts, that "no merchant, *** or other person, except apothecaries or druggists, shall keep open stores, or dispose of any wares *** on Sunday ***." The exceptions of the statute were not negatived in the indictment, which was demurred to, but allowed to be amended at a term subsequent to its presentment, under art. 268, Code, 616. The court say: "After objection has been made by demurrer or motion to quash for any formal defect, the court may, if thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall forthwith proceed. If the objection taken to this indictment were merely 'formal,' the court had authority to order the amendment. But we have shown that the omission to negative the exception in the statute, in favor of 'druggists and apothecaries,' was a fatal defect; and power is not conferred on the court by this article to make other than 'formal' amendments. Art. 268 refers to sundry defects, disclosed during the progress of the trial, which may be amended. This article applies to a variance between the allegations of the indictment and the testimony, and empowers the court to order amendments, so as to make the allegata correspond with the probata. The action of the circuit court cannot be brought within this provision." In the case at bar the counsel for the plaintiff in error presses the argument on this branch of the case upon the idea that the defect in the indictment is matter of substance. A comparison shows it to be wholly unlike the defects in the cases of Unger and Kline, just referred to. The language of the indictment, following that of the statute (art. 56, Code, 582), leads to the certain conclusion that the absence of the word "manner" from the indictment was a clerical omission, and may be held in this case to be "formal" under art. 268, Code, 616, or an "irregularity or informality" within art. 7, Code, 573. There is but the one statute on the subject of the exhibition of deadly weapons, which enacts that "he who, having or carrying a deadly weapon, shall exhibit the same in a rude, angry or threatening manner," not in necessary self-defense, shall be punished, upon conviction, as therein prescribed. The indictment of the plaintiff in error, as presented, charged that, having a pistol, he did then and there "exhibit the same in a rude, angry or threatening, in the presence of three or more persons," etc. This comparison more clearly shows the omission of the word "manner" to have been accidental, than any argument can do. But, without this word, the offense was "substantially described," which is all that is required. Art. 7, Code, 573; Kline v. The State, 44 Miss. In its absence, there could be no hesitation as to the statute upon which the charge was based. There could be no doubt as to the offense imputed. The accused could not complain of uncertainty, want of notice, or inability to prepare for trial. And a conviction or acquittal on this indictment, as it stood before amendment, might have been pleaded in bar of another prosecution for the same offense. Suppose the indictment had presented the accused for exhibiting a deadly weapon, rudely, angrily and threateningly, there can be little doubt of its sufficiency within the adjudications. In this case it charges that the accused, "having a certain deadly weapon, to wit, a pistol, did then and there exhibit the same in a rude, angry or threatening, in the presence," etc.

*5 There is nothing in the argument of counsel that the indictment ought to have included the words "or carrying," or that it ought to have averred that the pistol was loaded. It is sufficient that the indictment conforms substantially to the statute. Kline v. The State, 44 Miss.; Riley v. The State, 43 ib.

The bill of exceptions given in the record states the amendment to have been in fact made, and, on the whole, we are of the opinion the court did not err in overruling the motion to quash and in granting leave to amend.

The judgment of the court below is affirmed.

45 Miss. 658, 1871 WL 4015 (Miss.)

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High Court of Errors and Appeals of Mississippi.
THE STATE OF MISSISSIPPI
v.
JOSHUA BARTLETT.

April Term, 1856.

1. BOND, VOLUNTARY: NOT BINDING.--A voluntary bond, by the law of this state, is not binding on the obligors.

2. SAME.--A demurrer will be sustained to a declaration on a bond, which appears on its face to be voluntary and without consideration.

3. BOND: BY PUBLIC OFFICER, WHEN NOT REQUIRED BY LAW, NOT BINDING.--If a public officer, execute an official bond not required of him by law, it is voluntary, and not binding on him. This is different from a case where the law requires a bond from the officer, as a condition precedent to the enjoyment of his office; and where, in giving it, he fails to comply with the law, in that case the bond will be valid as a common law obligation, although not made to conform in its provisions, to the strict letter of the statute.

A statutory bond, not duly executed, or not conditioned as required by statute, may be sustained as a common-law bond.

*1 IN error from the Circuit Court of Neshoba county. Hon. John Watts, judge.

No counsel appeared for plaintiff in error.

Isaac Enlore, for defendant in error, contended, that the act of 1846, requiring the county treasurer to give bond, for the safe-keeping of common school fund, was repealed by the act of 1848, so far as the county of Neshoba was concerned: that the bond in this case was not therefore required by law, and was a voluntary bond, and not binding, and cited Hutch. Code, 230, 243, 396, 460; Acts of 1850; Acts of 1852, p. 146, 147.

FISHER, J., delivered the opinion of the court.

This was an action brought in the Circuit Court of Neshoba county, in the name of the state, for the use of the common school fund of that county, against the defendant in error, as administrator of the estate of William Perry, deceased, late county treasurer of said county, upon a certain bond executed by the said treasurer, with condition that he should faithfully and honestly render a just and true account to the board of police of said county, when thereto required by them, of the condition of the common school fund of said county; that he should pay over said funds to the order of said board, and should in all respects faithfully and impartially perform his duties as such treasurer of said fund. The complaint, after setting out the condition of the bond, avers that the said treasurer received during his term of office, the sum of one thousand dollars, on account of said fund, which he failed to account for, or to pay over to any person authorized by law to receive the same.

The defendant below demurring to the complaint, assigned, among other causes, that said bond was not required by law to be executed.

The act to establish a system of common schools, and for other purposes, approved the 4th of March, 1846, makes the county treasurer ex officio treasurer of the common school fund of his county, and requires him to enter into bond, to the president of the board of police of his county, with substantially such conditions as that contained in the bond in this case. Laws of 1846, p. 100, § 8.

But by the first section of the act of 1848, the act of 1846, as to the county of Neshoba and certain other counties, is unconditionally repealed. Acts of 1848, p. 201.

While we are of opinion, that under the provisions of the fifth and sixth sections of the act of 1848, the county treasurer is still treasurer of the common school fund of his county, yet so much of the act of 1846 as required him to execute a separate bond to account for said fund, must be treated as repealed, and that the bond now in question cannot, therefore, be said to have been taken in virtue of any statute requiring the same to be executed.

*2 If valid, therefore, we must look to some rule of the common law to sustain it. It may be admitted, that according to the rules of the common law, a voluntary bond was binding upon the party executing it, because his seal imported a consideration. But such is not the law of this state, as modified by our statute; the consideration of a specialty may be impeached or inquired into, in the same manner as that of a simple contract; and where the bond shows upon its face, that it was not an act required to be performed by the treasurer, before he could enter upon the discharge of his duties, and be legally entitled to receive the emoluments of the office, it cannot be said to rest upon any consideration whatever. The party must be presumed to have executed the bond required of him by the statute, before entering upon the discharge of the duties of his office. Having executed such bond, conditioned to perform all the various duties required of him by law, his right to the office was complete, without entering into any further or other obligation.

It has however, been said, that though the bond is not valid as a statutory bond, it is nevertheless valid as a common law instrument. Upon this point we deem it only necessary to remark, that if there was any statutory provision, requiring such bond to be given as a condition precedent to entering upon the discharge of the duties of the office; and in the execution of the bond, there had been some departure from the statute, or failure to comply with its provisions, the bond might be sustained as a valid common law obligation, because the giving of it was a condition precedent to taking possession of the office; and the party having entered upon the office, attempted to perform its duties and received its emoluments, could not be heard to say, that he had violated the law in so doing. But the rule is very different where no such bond is required. The only question, then is, whether it is valid, as the voluntary act of the parties executing it.

We have seen that the common law, as modified by our statute, will not sustain a bond, any more than a simple contract, without a sufficient consideration to support it. Such being our view of the law, we are of opinion that there is no error in the judgment of the court below sustaining the demurrer.

Judgment affirmed.

1 George 624, 30 Miss. 624, 1856 WL 3941 (Miss.Err. & App.)

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High Court of Errors and Appeals of Mississippi.
UNICY WINDHAM
v.
JOHN WILLIAMS, Administrator, &c.

April Term, 1854.

The recital in the record of an oath administered to a jury of good and lawful men, in these words, "who being impanelled, tried, and sworn truly to try the issue joined between the parties," &c., is held to be sufficient, and is sustained upon principle and authority. Dyson v. The State, 26 Miss. 362, cited and confirmed.

In finding a verdict by a jury, if more be found than is necessary, it may be disregarded as surplusage, but it does not vitiate that which is necessary and well found.

The evidence cannot be noticed by the court in this case, because it is not incorporated in a bill of exceptions, the exceptions taken not having the essential requisites of a bill of exceptions, nor does the proceeding purport to be one.

The judgment was erroneous, because it was rendered against the defendant and sureties, upon a bond which was a different one from that which contained the slaves found by the verdict to be the property of the plaintiff.

Where the recital of the oath of the jury in the record is that a jury of good and lawful men came, "who being impaneled, tried, and sworn truly to try the issue joined between the parties," etc., it was held to be sufficient.

If in a verdict more is found than is necessary, it may be disregarded as surplusage.

*1 IN error from the circuit court of Neshoba county; Hon. F. M. Rogers, judge.

The opinion contains the statement of the case.

T. J. and F. A. R. Wharton for appellant.

The recital of the record is, "this day came the parties by their attorneys, and the issue joined; thereupon came a jury of twelve good and lawful men, to wit, H. E. Simmons and eleven others, who, being impanelled, tried, and sworn truly to try the issue joined between the parties, and the evidence having been heard, retired to consider of their verdict," &c. This question has been so recently and fully considered by this court, and the rule upon the subject so lucidly expounded in the cases of The State v. Dyson and McCarty, that it is scarcely necessary to do more than refer to those cases, in connection with our statute, Hutch. Co. 879, § 132, which prescribes the form of oath to be administered. That form is in the following words: "You and each of you, do solemnly swear that you will well and truly try all issues and execute all writs of inquiry that may be submitted to you and left to your decision during the present day, (or term, as the case may be,) and true verdicts give according to the evidence; so help you God." Now is it not apparent that the oath which the record says was administered in this case does not comply, not in form merely, but in substance and materiality, in at least two or three important particulars? In this case, they were simply sworn to "truly try the issue joined." How try it, by their own private information, or the testimony of witnesses sworn and examined before them? But there is a total omission also of the very material part of the statutory oath, and a "true verdict render according to the evidence." Here they were not sworn to render any verdict whatever. If, however, it be said in reply, that this was implied, to wit, that they should render a verdict, by the words of recital above stated, "impanelled, tried, and sworn truly to try the issue joined," still the force of the objection is not met, Upon what was such verdict to be rendered? We say they should have been sworn a true verdict to render, upon or according to the evidence. You are asked to infer that by the words quoted from the record, "who being sworn truly to try the issue joined between the parties," that they were also sworn "a true verdict to render according to the evidence;" or rather the argument on the other side, that all this is implied in law in the oath which was administered. Now you may construe the oath which the record says was administered as liberally as you please, and it is in plain language resolvable into this, "You swear truly to try the issue joined between the parties." That is the whole oath which was administered. Would any one pretend that such an oath as that can be vindicated as a substantial compliance with the formula of the statute, or with any form of oath to be found in any law-book? The record sets out the whole of the oath, therefore nothing is left to implication. If it had said that thereupon came a jury, who were duly or legally sworn, without giving the form of oath which was administered, so that this court could have seen whether it was such an oath as the law requires, there might be some reason for saying that, as all things are presumed to have been rightly done, until the contrary appears, so your honors should hold that the court below, (being in legal contemplation acquainted with the form of oath required by the statute,) when the record says the jury was legally or duly sworn, administered the proper oath.

*2 The second error for which we think the case should be reversed is, because the verdict is an illegal one,--a nullity, indeed. It is as follows: "We the jury, find the issue in favor of the plaintiff, and he is entitled to the possession of the following negroes [naming them], Charity, valued at $250; Peter, valued at $700; Levi, valued at $850; Rainey and child, at $800; and Edy, valued at $600, and assess the value of said slaves as respectively stated above, and we further assess the plaintiff's damages for the detention of said slaves, at the sum of $900. We find the other slaves not subject to plaintiff's claim."

Here again we will probably be answered, that the record does not show that this was objected to in the court below. It need not have been, it appears, on the record. Advantage may be at all times taken of it. The declaration charges that plaintiff unlawfully and wrongfully detains from the defendant in error certain negroes. The plea is, Not guilty. That is the issue which was tried by the jury. The verdict must respond to that issue. We submit that the above pretended verdict is unlike any one ever before heard in such form of action and on such an issue.

The third error presented in the record is, that the judgment rendered on the foregoing verdict is equally defective and fatal. It is in these words: "It is therefore considered by the court that the said defendant, and Luke J. Hestor and Isaac B. Payne, her securities on her replevin bond, restore to the said plaintiff the said slaves, or pay him the respective values thereof assessed by the jury aforesaid, and also pay the damages aforesaid assessed by the jury for the wrongful detention of said slaves."

The judgment should have been, that said plaintiff have and recover of and from said defendant and his securities on the replevy, the said negroes, if to be had; if not, the value of each as assessed by the jury; not that the "said defendant restore." See Anderson v. Tyson, 6 S. & M. 244.

The fourth error upon which we rely, is because of the admission of the evidence of Benjamin Windham, who is shown by the record to have been an interested witness. An examination of the testimony will very clearly show that this objection is well taken.

The fifth error in the record is, that there was no proof that the right of action in the defendant in error, if he ever possessed such right, did accrue within one year next before suing out the writ of replevin.

The sixth ground of objection to the verdict is, that the evidence shows that John Sutton owned at his death a girl named Viney, whom he willed to Mrs. Windham, subject to the life-estate of Mrs. Sutton; that Viney was exchanged for Charity, by agreement of all the heirs and Mrs. Sutton, with the further understanding and agreement between them, that at the death of Mrs. Sutton, Charity was to belong to Mrs. Windham; Mrs. Sutton survived Huston Windham, the husband of Mrs. Unicy Windham; her life-estate in Charity did not determine in the lifetime of Huston Windham; consequently, no title ever vested in him to said girl Charity in virtue of any marital right. On the death of Mrs. Sutton, therefore, after the death of Huston Windham, the title of Mrs. Windham to said girl became absolute.

*3 Now Charity is proved to be the mother of all the negroes found by the verdict to have belonged to Huston Windham at his death. It is therefore clear, that Huston Windham never had any title to any of the negroes sued for, and hence there was no cause of action shown in this case. The girl Charity, as before stated, never belonged to J. Sutton, who died in 1819, but was acquired in 1825 or 1826 in the manner already described.

Glenn for appellee.

1. Exceptions were not taken to the judgment of the court, or to the judgment overruling the motion for a new trial; therefore, there is nothing before this court. In neither case is it stated that all the evidence is included in the bill of exceptions; consequently, this court will not interfere with the verdict.

2. When property is given to a woman before marriage, as her separate property without trustee, she takes legal title, which on a marriage falls on her husband, and the property, or other exchanged for it, becomes her husband's, and his administrator may recover it. Faulkner v. Faulkner, 3 Leigh, 255.

3. Slaves in remainder pass to the husband of the legatee in remainder, the wife dying before tenant for life. Wade v. Boxley, 5 Leigh, 442.

4. If a contract is made by the wife during coverture, even in consideration of her separate property or estate, and property acquired, there being no trustee for the wife, the legal estate vests in the husband. Barbour v. Bishop, 1 East, 432; 2 Story, Eq. Jur. (5th ed.) 824, see 1386; Roper on Husb. & Wife, 169, 170; 12 Pick. 173, and cases cited; 7 Meeson & Welsby, 183.

Mr. Justice HANDY delivered the opinion of the court.

The testimony appearing in the record in this case cannot be taken into consideration, because it is not properly presented by bill of exceptions. The paper alleged to be a bill of exceptions has not the essential requisites of such a proceeding. It does not purport upon its face to be a bill of exceptions, nor does it show to what alleged error it was taken, nor whether taken pending the trial, or to the overruling the motion for a new trial. It does not purport to set out all the evidence given on the trial; but on the contrary, it appears, from the grounds of the motion for a new trial, that one Benjamin Windham was examined as a witness for the plaintiff, to which the defendant excepted; and yet no such testimony is set forth in the record. The case, then, as presented here, must depend upon the points made apart from the bill of exceptions.

The first objection made to the proceedings below is, that the oath administered to the jury was insufficient. The recital of the oath in the record is, that a jury of good and lawful men came, "who being impanelled, tried, and sworn truly to try the issue joined between the parties," &c. The sufficiency of the recital of such an oath, and the principles applicable to it, were fully considered by this court in the case of Dyson v. The State, at the last term; and the oath here falls fully within the reasons there stated. It is sustained both by principle and authority. Harris, Entries, 293.

*4 The next objection is to the verdict, which is, that "the jury find the issue in favor of the plaintiff, and he is entitled to the possession of the slaves," which are named and the value of each separately found, and the damages for detention are assessed at $900. We cannot perceive any valid objection to this verdict. It responds to the issue by finding it in favor of the plaintiff, and adds, what is probably unnecessary, but what cannot for that reason vitiate the verdict, that the plaintiff was entitled to the possession of the slaves, and finds their separate value, and the amount of damages for detention. Here every thing is ascertained which the law requires, in order to render a judgment upon the verdict. If more is found than is necessary, it may be disregarded as surplusage, but it does not vitiate that which is necessary and well found.

Nor is there any error in the judgment, as is insisted. It is in strict conformity to the 5th section of the act of 1842, Hutch. Dig. 818, which provides that in such cases the judgment shall be, "that the defendant restore the property to the plaintiff," &c., and not that the plaintiff recover of the defendant the property, &c., as is insisted on.

Another objection is, that there was no evidence that the plaintiff's right of action accrued within one year before the commencement of the suit. We cannot determine with propriety whether this objection is well founded or not, as, according to the view above taken of the bill of exceptions, the evidence is not before us. Regarding the case as not presenting the evidence, we cannot properly ascertain whether any point is sustained by evidence or not, and therefore this objection could not prevail. But if we could notice the bill of exceptions, it would appear from it that letters of administration of the estate of the plaintiff's intestate were granted to the plaintiff in April, 1848; and the record shows that this action was instituted in June, 1848. The right of action accrued to the plaintiff by his letters of administration, and thus it appears that the right of action did accrue within one year.

The remaining ground of error urged is well founded. Upon the delivery of the slaves by the sheriff to the defendant, two bonds were executed by the defendant for the forthcoming of the slaves, one embracing the slaves named in the verdict, and the other embracing a slave not found in the verdict to belong to the plaintiff. These bonds had different sureties to them, and the judgment was rendered against the defendant and sureties upon the latter bond, instead of the bond for the slaves found by the verdict to be the property of the plaintiff. In this respect the judgment is erroneous, and is reversed; and this court, proceeding to render such judgment as should have been rendered by the court below, doth adjudge that the plaintiff in error and Luke J. Hester, Joshua McH. Hicks, and Patterson Windham, restore to the defendant in error the slaves named in the verdict and adjudged to the defendant in error, severally, or pay him the value of each of said slaves assessed by the verdict, and also that they pay him the damages assessed by the verdict for the detention of said slaves.

5 Cushm. 313, 27 Miss. 313, 1854 WL 2244 (Miss.Err. & App.)

End of case ------------



High Court of Errors and Appeals of Mississippi.
CATHARINE EDWARDS
v.
HOLLOWAY E. SIMMONS.

April Term, 1854.

Where A. signed his name as security for B. to a note executed for money borrowed by him (B.) from C., and in the transaction A. trusted alone to B. for indemnity, if he failed to pay, with nothing to show that the money was obtained for, or was used by B. as agent for the use of D.:--Held, that D. cannot be made liable for the money thus paid by A. as security for B., unless it be shown that D. was the party trusted.

A. borrowed money of B., and gave his note for it, and C., signed his name as security. C. trusted alone to A., who did not disclose that he acted as agent for D., or anybody. B. sued D., alleging that A. acted as his agent. Held, that D. could not be made liable to C., unless proved to have been the party trusted.

*1 IN error from the circuit court of Neshoba county; Hon. John Watts, judge.

H. E. Simmons brought suit in the circuit court of Neshoba county against Catharine Edwards, to recover an amount of money which he alleges he paid as her security. The complaint states that Catharine Edwards, by her agent, Charles W. Edwards, on the 4th of June, 1849, borrowed of David Backstrow $100, for which said agent executed his note to said Backstrow, and procured plaintiff to join in its execution as surety. At the time the money was borrowed and the note executed, Charles W. Edwards did not disclose to plaintiff or Backstrow that he was acting for Catharine Edwards, or for any person but himself; yet plaintiff avers that in the whole transaction the said Charles acted as the mere agent of the defendant, and that the money borrowed was for her use, which facts were wholly unknown to plaintiff at the time of executing said note. That plaintiff paid said note, $108.80, to Backstrow, which said sum he avers was paid to the use of defendant, and at her special instance and request.

To this complaint defendant demurred, and assigned for causes, that the complaint did not disclose a cause of action against defendant, and that no liability is stated by the complaint, and other causes. This demurrer was overruled.

Defendant then answered, denying all the allegations of the complaint, specifically.

Plaintiff then proved that Charles W. Edwards borrowed of Backstrow $100 about 4th of June, 1849, and executed a note therefor in his own name with plaintiff as security, and that plaintiff, as surety, paid it, $108.80. He then proved by the deputy sheriff that the deputy, by virtue of an execution of J. J. Parker v. Catharine Edwards, Charles W. Presley, and John E. W. Carnell, that he levied on four mules as the property of defendant, and Charles W. Edwards promised to have the property forthcoming on the day of sale, or that he would pay the money, and did do so on the 4th of June, 1849; that he was the son of Catharine Edwards, lived with her, but was a married man, and he, Charles W. Edwards, generally attended to his mother's business with the witness. This was all the testimony on the part of the plaintiff.

The defendant then introduced the record of the judgment on which said execution issued, which shows that Charles W. Edwards was in the original judgment, and that a forthcoming bond was given in which he was left out. She then proved that the foundation of said judgment was a note in which she and said Charles was security for Lewis Presley. That Lewis Presley paid to C. W. Edwards the money to pay on said judgment, except $85 or $100, and requested Charles to pay that for him, witness, which Charles did, and shortly thereafter witness paid it back to him. That witness was the brother of Catharine, and uncle of Charles W. Edwards. That he never knew of any authority given by Catharine to Charles to borrow money. This was the substance of all the testimony. The jury found a verdict for the plaintiff. Defendant made a motion for a new trial, which was overruled. Whereupon she prayed and obtained a writ of error to this court.

Lawson for appellant.

*2 The defendant in error became the surety, as he says, of Charles W. Edwards, and as such paid the debt. If the money ever went to the use of Catharine Edwards, and that was the object for which it was borrowed, that does not raise an implied assumpsit on her part to pay it to defendant in error in consequence of his being security for Charles, and as such having paid it. There was no privity between the defendant and plaintiff in error. He did not become her security, and has no right at law to recover from her. To enable the defendant in error to recover, the money must have been paid at her request, either express or implied, supposing the debt for which he was security to be hers. There is no pretence that there was any express request. Then does the law, under the circumstances, imply a request to pay? 1 Smith's Leading Cases, 1852, for all the authorities, p. 196, 197, notes to Lampleig v. Brathwait. The law implies a request. First, where the consideration consists in the defendant in error having been compelled to do that which the plaintiff in error was legally compellable to do. 3 Term R. 308. Catharine Edwards was not legally compellable to pay, and hence, under the above rule, is not responsible to pay defendant. The law will imply a request also where one party does that voluntarily for another which the first was compellable by law to perform, and he expressly promises, in consideration thereof, to pay the second. In such case the law does not imply the promise, but only the request. An express promise is not averred in this case, and even if such a promise was averred, the debt for which defendant was security not being the debt of plaintiff, if he paid it as security, even by the request and upon an express promise, the plaintiff in error would not be liable under the statute of frauds, unless the promise were in writing.

No counsel for appellee.

Mr. Justice FISHER delivered the opinion of the court.

This action was brought by the defendant in error in the circuit court of Neshoba county to recover of the plaintiff in error a certain sum of money, which the plaintiff in error alleges he paid as her security on a promissory note for one hundred dollars, payable to one Backstrow.

A judgment was rendered in favor of the plaintiff below, from which the plaintiff in error has prosecuted a writ of error to this court.

We are clearly of opinion that the evidence establishes no cause of action against the plaintiff in error. She was no party to the note to Backstrow. The plaintiff in error signed the note as the security of Charles W. Edwards, trusting alone to him for indemnity if he failed to pay the debt. There is no proof showing that Charles W. Edwards used the money obtained for the benefit of the plaintiff in error, or that he was her agent to borrow the money. But be this as it may, she was not the party trusted in the transaction, and therefore not liable to the plaintiff below.

*3 Judgment reversed, new trial granted, and cause remanded.

5 Cushm. 302, 27 Miss. 302, 1854 WL 3540 (Miss.Err. & App.)

End of case ------------




High Court of Errors and Appeals of Mississippi.
LEWIS PRESLEY
v.
JOSEPH S. RODGERS.

October Term, 1852.

The deed of trust which conveyed the slaves levied on, having been executed in another State, and never recorded in this State; held, that the rights of any party claiming under it are not prejudiced because of a failure to record it.

It has been heretofore decided that deeds of trust executed in other States are not embraced in the recording act of 1822, (Hutch. Code, 605,) and that a failure to record the same in this State, after a removal of the property into it, does not impair their validity even against bona fide purchasers and creditors without notice of their existence. Palmer v. Cross et al. 1 S. & M. 48; Dobbs v. Prewitt, 13 Ib. 431, cited and confirmed.

The legal title to the slaves conveyed by the deed of trust was vested in the trustees, and the interest which the wife took under the deed was entirely equitable, and the enjoyment of it by her was postponed until the death of the husband.

So soon as the husband died, the wife's right to the use and benefit of the property commenced, and this gave her a right to the enjoyment, possession, and control of the slaves during her life; but this was an equitable right, which she could only enforce in a court of equity.

The legal title in the slaves still remained in the trustees for the purpose of enabling them to execute the trust imposed on them.

Our statute (Hutch. Code, p. 610, § 29,) declares that estates of every kind, holden or possessed in trust, shall be subject to like debts, liabilities, &c., as they would have been subject to if those persons had owned the like interest in the things so holden as they own or shall own in the uses or trusts thereof; and this court has held in similar cases, where real and personal estate was involved, that the trust estates the statute was intended to operate upon are those in which the trustee has nothing but the naked, dry, legal title, with the whole beneficial interest in the cestui que trust. Boarman v. Catlett, 13 S. & M. 151; Ib. 103, cited and confirmed.

The courts of England, in giving a construction to the statute of frauds of 29 Car. 2, ch. 3, which is very similar in its provisions on the subject of the sale of trust estates to our own, have held that it only applied to bare and simple trusts, not of a complicated nature; and this being the correct construction of our statute on this subject, held, that Mrs. E. did not have such an interest in the slaves as could be subjected to the payment of her debts by proceedings at law.

The legal title to the slaves is in the trustees for her use, and the parties entitled to them in remainder. Held, that the trust estate is not therefore a naked, dry, legal title in the trustees, in which the sole beneficial interest was in the debtor (Mrs. E.), but is a trust in which the rights and interests of others are mixed up with the debtor's title.

The creditor, from the manner in which the property is conveyed, should seek the aid of a court of equity to subject it to his debt, where remainder-men can be effectually protected.

The legal title being in the trustees, Mrs. E. has only an equitable right therein. Held, the instruction given by the court below, that the property was liable for the debt, was error.

West Headnotes
When a deed of trust was executed in one state, not recording in another does not prejudice the rights of the party claiming under it in the latter; for deeds thus executed are not within the recording acts of 1822.

The equitable estate of the cestui que trust is subject to execution at law, when the sole beneficial interest is in him, but not when the rights of others are mixed up with his title.

*1 IN error from the circuit court of Neshoba county; Hon. John Watts, judge.

This was an action for the trial of the right of property in the circuit court of Neshoba county, upon a judgment on attachment issued by Rodgers against Catharine Edwards, which was levied on a certain negro named Dock. Presley, as trustee, filed an affidavit and gave bond to try the right of property in the negro; and to sustain his claim to the negro, he introduced and read in evidence to the jury a deed of Edward Edwards to Charles and Lewis Presley, for the negro in controversy, conveyed in trust for the use and benefit of Catharine Presley, during her natural life, and should she have children by her contemplated marriage, then to such issue forever; but upon failure of such issue, then the slave was to go to the children of E. by a former marriage. The deed bears date the 9th of August, 1820, in South Carolina, where the parties lived at the time it was executed, and was regularly recorded in that State; and it seems the deed was recorded in Neshoba county, Mississippi, on the 22d of December, 1845. Presley then proved the death of his co-trustee before the suit was instituted, and that Charles Edwards was the only issue who died before the suit was brought.

The defendant (Rodgers) proved that Catharine Edwards was in possession of said negro at the time of the levy on the negro, and had been in the possession of Catharine Edwards for five years before judgment was rendered against her, and that E. Edwards died in 1821. The defendant asked the court to charge the jury that said negro was subject to said levy and sale as the property of C. Edwards, if they believed the foregoing facts, which was given by the court. The jury found for Rodgers, and Presley took out this writ of error.

W. E. Pugh, for appellant.

This marriage settlement was entered into in 1820, before the passage of our statute of uses. Hence that statute cannot affect, or control it. It was also executed before the passage of our statute of 1822 passed, to prevent perjury and fraud; and, therefore, falls within the rule laid down by this court in the case of Palmer v. Cross, 1 S. & M. 48. The interest of Mrs. Edwards was only an equity for life, which is not the subject of levy and sale at law. Goodwin v. Anderson, 5 S. & M. 730.

The interest of Charles W. Edwards was only a contingent equity, to vest on the death of his mother, provided he was living at her death; but, having died in the lifetime of his mother, he took nothing by the deed. The proper construction of this deed is, Should Mrs. Edwards die leaving issue by the marriage, then this property was to vest in that issue absolutely. On the contrary, it was to belong absolutely, at the death of Mrs. Edwards, to the children of the grantor by a former marriage. The word then, used twice in this deed, can refer only to the death of Mrs. Edwards, for place any other construction on it, and you thereby defeat the first object of the deed, to wit, the lifetime interest of Catharine Edwards. The whole interest being in her, or rather in Presley for her use for her life, no other interest could spring out of it until that life estate had ended. Clark v. McCleary, 12 S. & M. 347.

*2 The possession of Mrs. Edwards was not adverse to the possession of Mr. Presley, the trustee. Her possession was his. It was within the intent and meaning of the deed, that she should enjoy the use of the property, and its possession.

There is no proof, or even an attempt to prove, that she ever claimed these negroes as hers, or against the trustee. Hence our statute of 1822 to prevent perjury and fraud, does not apply.

For these reasons the charge of the judge below was wrong, and the judgment should be reversed.

Wharton, Guion & Baine, on the same side, filed no brief.

Enloe & Baldwin, for appellee, filed no brief in the record.

Mr. Justice YERGER delivered the opinion of the court.

The defendant in error commenced suit in the circuit court of Neshoba county, by attachment, against Catharine Edwards. The attachment was levied upon three slaves, which were claimed by the plaintiff in error; and an issue to try the right of property was made up, and resulted in a verdict and judgment against the claimant.

From the evidence, it appears that the claimant founded his title on a deed of trust made and duly recorded in the State of South Carolina, in the year 1820, by Edward Edwards. By this deed, Edwards, who was about to enter into a marriage with Catharine, the daughter of Charles Presley, conveyed to Charles Presley, who has since died, and to Lewis Presley, the claimant, certain slaves, "in trust for the use, benefit, and behoof of the said Catharine Presley, during her natural life; and should she have issue by the contemplated marriage, then to such issue for ever." In default of such issue, the slaves were to go to the children of the grantor by a former marriage. The grantor reserved by the deed, during his life, "the possession of the slaves, and all the profits and emoluments of the slaves."

The marriage was consummated, and the sole issue of it was a son, Charles W. Edwards, who died before the slaves were seized by virtue of the attachment. Edward Edwards, the grantor, died in South Carolina in 1821, and Catharine, the widow, removed to Mississippi with the slaves named in the deed, and had them in her possession when the attachment was levied upon them. They had been in her possession, in the State of Mississippi, five years before the levy, and the deed of trust had not been recorded therein.

The record contains no evidence, whether or not Charles W. Edwards at his decease left any children, or whether he died intestate. It is also equally silent, whether he left any brother or sister of the half blood, who, under certain circumstances, were to become entitled to the slaves named in the deed of trust.

As the deed of trust was executed in South Carolina, the fact that it was not recorded in the State of Mississippi does not prejudice the rights of any party claiming under it. It has been heretofore decided, that deeds of trust executed in other States are not embraced in the recording acts of 1822, Hutch. Code, 605; and that the failure to record the same in this State, after a removal of the property into it, does not impair their validity, even against bona fide purchasers and creditors without notice of its existence. Palmer v. Cross et al. 1 S. & M. 48; Dobbs v. Prewitt, 13 Ib. 431.

*3 This brings us to the consideration of the question, whether Mrs. Edwards took under the deed an estate which was subject to an execution at law.

By reference to the deed of trust, it will be seen that the legal title was vested in the trustees. First. To permit the husband during his life to retain possession, and to receive the profits. Second. For the use of the wife during her life; and, thirdly, for the use of such children as might be born of the contemplated marriage.

The interest which the wife took under the deed was entirely equitable, and the enjoyment of it by her was postponed until the death of her husband.

Immediately upon his death, her right to the use and benefit of the property commenced; and this gave her a right to the possession, direction, and control of the slaves during her life. But this was a right purely equitable, and which she could only enforce in a court of chancery. The legal title still remained in the trustees, for the purpose of enabling them to execute the trusts imposed on them.

Our statute of 13 June, 1822, Hutch. Code, 610, sec. 29, declares that "estates of every kind, holden or possessed in trust, shall be subject to like debts and charges of the person to whose use or to whose benefit they were or shall be respectively holden or possessed, as they would have been subject to, if those persons had owned the like interest in the things holden or possessed as they own or shall own in the uses or trusts thereof."

This court has decided in several cases, in which the title to both real and personal property was involved, that the trust estates the statute was intended to operate upon are those in which the trustee "has nothing but the naked, dry, legal title, with the whole beneficial interest in the cestui que trust." Boarman v. Catlett, 13 S. & M. 151; Wolf v. Dowell, Ib. 103. The English courts giving a construction to the statute of frauds, 29 Car. 2, ch. 3, which is very similar in its provisions on the subject of the sale of trust estates to our own, have held, that it only applied "to bare and simple trusts, not of a complicated nature, and where the interests of no other party were mixed up with the debtor's title." Lewin on Trusts, 547.

Recognizing the above as the true construction of our statute on this subject, we are of opinion, that Mrs. Edwards did not have such an interest in the slaves as could be subjected to the payment of her debts by proceedings at law. The legal title to them is in the trustee, for her use, and also for the use of those parties entitled to them in remainder. The trust estate is not, therefore, a naked, dry, legal title in the trustee, in which the sole beneficial interest is in the debtor. It is not a bare and simple trust, not complicated in its nature, but is a trust in which the rights and interests of others are mixed up with the debtor's title.

*4 The nature of the property conveyed by the deed, and of the interests held under it, renders this a case peculiarly fit for the enforcement of the rule, that a creditor shall seek the aid of a court of equity to subject it to his debt. That court is the only forum in which full and equal justice can be done to all parties, and in which the interests of the remainder-man can be fully and effectually protected. It is clear, that his interests may be seriously impaired in a sale of the slaves by execution at law, where no security can be required for their forthcoming, on the termination of the particular estate.

The fact that Charles W. Edwards, the sole issue of the marriage, died before the attachment was levied, does not, on the facts presented by this record, vary the rule which should govern this case.

It is true, that on his birth he became entitled to an estate in remainder, which was then vested in interest, though not in possession, and which estate, in the absence of a bequest, has descended to his next of kin. But on this record there is no evidence whether he died intestate or not; nor whether he left children, or brothers or sisters of the half blood; and we, therefore, cannot say in whom his title to the property vested on his decease. If it should turn out in proof, that the mother is entitled, either as legatee or as next of kin and distributee, she would then be seized of the whole beneficial interest in the property, and might then have such an interest as would be subject to execution at law. But on this point we express no opinion, because the facts in the record do not properly present it for consideration.

Inasmuch as the legal title to the slaves is in the trustee, and Mrs. Edwards has only an equitable right therein, the instruction given by the circuit judge, that the property was subject to the attachment of the plaintiff, was erroneous. The judgment must, therefore, be reversed, and the cause remanded.

2 Cushm. 520, 24 Miss. 520, 1852 WL 1936 (Miss.Err. & App.), 2 Cush. 520

End of case ------------




High Court of Errors and Appeals of Mississippi.
HENRY C. ROBINSON
v.
ALEXANDER SANDERS.

October Term, 1852.

An overseer's contract for wages is not an entire contract; and if he be turned off for misconduct, he may recover for the time he conducted himself well. Harison v. Sale, 6 S. & M. 634, cited and confirmed.

An overseer's contract for wages for a year is not an entire contract.

Where one who has employed another for a definite time at a salary discharges the employee before the expiration of the time for a good cause, he is responsible to the employee for his services up to the time of his discharge.

*1 IN error from the circuit court of Neshoba county; Hon. John Watts, judge.

The facts are contained in the opinion of the court.

Slaughter & Comfort, for appellant.

J. Enloe, for appellee.

Mr. Justice FISHER delivered the opinion of the court.

The plaintiff below agreed to oversee for the defendant during the year 1850, for $165. About the last of August, the parties disagreeing, the plaintiff was discharged; whereupon he brought his action in the circuit court of Neshoba county, to recover wages for the time he had attended to defendant's business, at the rate of $165 per annum.

The court instructed the jury, "that an overseer's contract for wages is not an entire contract; and that although an overseer may be turned off for misconduct, he may, notwithstanding, recover for the time he conducted himself well."

This instruction falls within the rule laid down by this court, in the case of Harison v. Sale, 6 S. & M. 634, and was, therefore, correct.

Judgment affirmed.

2 Cushm. 391, 24 Miss. 391, 1852 WL 2028 (Miss.Err. & App.)

End of case ------------



High Court of Errors and Appeals of Mississippi.
LEWIS PRESLEY
v.
THOMAS STRIBLING;
SAME
v.
HOLLOWAY E. SIMMONS.

October Term, 1852.

A court of equity would maintain the cestui que trust in the possession and use of the property against the claim of the trustee; yet a court of law, looking only at the legal title, could not notice this right, and therefore cannot enforce it.

Where slaves are conveyed in trust for the benefit of a married woman during her life, and, should she have issue by the contemplated marriage, then to such issue forever, she does not have such interest in the slaves as can be subjected to the payment of her debts by proceedings at law, as the legal title to them is in the trustee for her use and for the use of those entitled to the remainder.

*1 IN error from the circuit court of Neshoba county; Hon. John Watts, judge.

The facts are contained in the opinion of the court, and the preceding case.

Wharton, Guion & Baine, for appellant.

W. E. Pugh, on the same side.

Enloe & Baldwin, for appellee.

Mr. Justice YERGER delivered the opinion of the court.

These two cases are similar in all respects to the case of Presley v. Rogers, with the exception, that these are actions of replevin brought by the trustee, and that was a suit under the statute to try the right of property.

At first we were inclined to think, inasmuch as the plaintiff in the action of replevin must have the right of immediate possession, that we should be compelled to affirm the judgment in these cases, and leave the trustee to pursue his rights in a court of equity. On further reflection we think, that although a court of equity would maintain Mrs. Edwards in the possession and use of the property against the claim of the trustee; yet a court of law, looking only at the legal title, could not notice this right, and, therefore, could not enforce it. The same judgment must, therefore, be entered in these two cases as in Presley v. Rogers.

Judgment reversed, and cause remanded.

2 Cushm. 527, 24 Miss. 527, 1852 WL 3193 (Miss.Err. & App.)

End of case ------------




High Court of Errors and Appeals of Mississippi.
JOHN J. HUMPHRIES
v.
NEILL BARTEE.

January Term, 1848.

A judgment obtained by fraud and collusion, between one not a party to the record and the defendant, predicated upon a forged note of the defendant to the apparent plaintiff, who is a real person, but does not participate in the fraud, is fraudulent, and a nullity and all proceedings under it are of the same character.

T., being indebted to B. for borrowed money, conveyed certain slaves, by absolute bill of sale, to B., to secure the debt; these slaves were afterwards sold at public auction, by agreement between T. and B., and bought by B.; afterwards by collusion between H. and T., a judgment for a large sum was obtained in favor of one R., who was a non-resident, against T., in a different county from that of T.'s residence, upon a forged note of T.'s, for a debt not owing, and the suit brought without the knowledge of R.; H. pretending to be the assignee of this judgment, levied an execution on the slaves in the hands of B., who gave bond to try the right of property. On the trial, T., being admitted as a witness, testified, that the sale of the slaves to B., was fraudulent, upon which the jury found the slaves subject to the execution against T.; and they were sold under it, and bought by H; B., afterwards finding that the judgment under which H. claimed, was fraudulent, and that the whole proceeding had been conducted by fraud and collusion between H. and T., filed his bill to vacate the sale of the slaves to H.; held, these facts being made apparent, that the original judgment was void, and the proceedings under it void, and no title passed to H. by the sale under it.

The rule that holds a party to strict vigilance, when he resorts to equity for relief against a judgment at law, the defence to which was purely legal, is fully complied with in a case where the party seeking relief against a sale of property claimed by him, shows that the sale was made under a judgment to which he was not a party, which judgment, he alleges, was obtained by fraud, of which fact he had no knowledge at the time his property was held subject to an execution on it; the plaintiff in which judgment, was a nonresident, who had lately changed his residence, and had no interest in, or knowledge of, the fraudulent judgment rendered in his name, and the party seeking the relief had no knowledge of these facts, until he filed his bill.

Where one is about to be affected by a judgment to which he is not a party, his proper remedy for avoiding it is in chancery; he may there show, that the judgment was recovered by fraud.

No relief can be had against a void contract, when a judgment has been rendered thereon at law, where the defence ought to have been made; you cannot go behind the judgment; it is otherwise however, if the judgment itself be void for fraud in its rendition.

Nor can a judgment, void for fraud, on which an execution has been issued and levied, and the property levied on, claimed by a third party, and, on a trial of the right, declared subject thereto, be made valid by the failure of the claimant at the time he set up the void character of the judgment; the rule which holds the party to vigilance in making his defence at law, does not apply to such a case; for want of vigilance on his part, could not make the void judgment valid.

Where slaves were conveyed by an absolute bill of sale to the vendee, but in reality, merely as a mortgage, to secure a debt due by the vendor, and judgments are subsequently rendered against the vendor, and the vendee seeks relief in equity against executions on these judgments, the proper remedy is, to decree a sale of the slaves, and order the proceeds to be appropriated first to the satisfaction of the mortgage-money, the amount of which is to be ascertained by an account; and, second, to the payment of the judgments, in the order of their priority, excluding such judgments as are not recorded in the proper county, according to the statute; if he desire it, the vendee may redeem from judgment creditors of the vendor.

An absolute bill of sale, designed however between the parties as a mortgage, if delivery of the thing sold accompany the bill of sale, need not be recorded to be valid as against subsequent judgment creditors of the vendor. A court of equity, in treating it as a mortgage, will protect the rights of the vendee; the possession by the vendee, was equivalent to notice by registration, even if it had been competent to record an absolute bill of sale.

An absolute bill of sale, accompanied by delivery, though intended as a mortgage, need not be filed, as against subsequent judgment creditors of the seller.

An absolute bill of sale of slaves, accompanied by delivery, although intended by the parties as a mortgage, need not be recorded in order to entitle the vendee to the benefit of it, as against subsequent judgment creditors of the vendor.

Where an absolute bill of sale is intended as a mortgage, and judgments are subsequently rendered against the vendor, a court of equity will decree a sale of the property, and, after discharging the vendee's claim, apply the proceeds to the satisfaction of the judgments, or allow the vendee to redeem the mortgages.

The rule which precludes a party from asking equitable relief against a judgment, for want of vigilance on his part in making a defense at law, does not apply where the judgment is void for fraud.

A judgment recovered on a forged note of the defendant, made payable to the plaintiff, without the knowledge of the apparent plaintiff, by fraud and collusion between the defendant and a third person, is a nullity, and a stranger affected by such fraudulent judgment, who was ignorant of the facts which render it void until after its rendition, may obtain relief against it in equity.

*1 APPEAL from the vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.

Neill Bartee alleges in his bill, in substance, that on the 21st of February, 1839, he loaned Samuel W. Turner $1500, to pay off certain judgments against him with, and took his note, bearing ten per cent. interest for loaned money, secured by a deed of trust to Pascal B. Wade, on two houses in Columbus. On the 7th of May, 1840, Turner conveyed the slaves Ben, Nancy, Kitty, Esther, and Peggy, to Bartee, by an absolute bill of sale, but intended to secure payment of the same and other money. The consideration expressed was $2700; as soon as this was paid by Turner the bill of sale was to be void, though absolute on its face. The slaves were delivered by Turner to Bartee.

At the time this bill of sale was made, Turner was indebted to R. S. Blount, in the sum of $266, secured by a deed of trust on the slave Kitty, executed in August, 1838; at the request of Turner, Bartee paid this debt, and took an assignment of it and the deed of trust. Besides this sum Bartee paid at different times, before the bill of sale was made, about $811 for Turner; he files his bill of items.

The bill further proceeds to detail the history of the two houses conveyed by the deed of trust, and gives an account of their rents, &c., which is not material to the merits of the main controversy. These lots were sold in March, 1842, by the trustee, and bought by Bartee, for $100, but were afterwards resold by the sheriff, under an execution in favor of Owen against Turner, for $62, rendered 9th April, 1839.

At this time, by an agreement between Turner and Bartee, the slaves were also sold at public auction, except Nancy, who had died. They were sold at the court-house for a full price, and brought $1500; they were all bought by Bartee; but no credit was made then, or subsequently, on Turner's indebtedness to Bartee, nor could he then, or at any time, procure a settlement with Turner, who had then formed the design to defraud Bartee.

Turner put into Bartee's hands certain notes for collection, out of which he had made some small sums stated, for which he was chargeable.

In the summer of 1842 these slaves, except Ann, were levied on under an execution purporting to be on a judgment rendered on the 6th of March, 1841, in favor of David Reinhardt against Turner, for the sum of $5383.06, rendered in Lowndes county. Bartee claimed the slaves, gave bond, and an issue to try the right of property was made up to the October term, 1842, of the circuit court. On the trial Turner was allowed to testify. He stated that he was not interested in the event of the suit; that the arrangement between Bartee and himself was entered into for the purpose of defrauding Turner's creditors; and upon his evidence the jury found the slaves subject to the execution.

A suit was also brought against Bartee for the lots, and upon Turner's evidence he lost that suit also. But the bill seeks no redress for the lots.

*2 That Turner early conceived the design to defraud Bartee out of his money and securities; and to that end sought confederates. He found an ingenious, capable and ready one in Humphries; they held frequent conferences at Humphries's and finally devised and executed this scheme to accomplish their end. Turner made his writing obligatory, by which he promised to pay one David Reinhardt $2300, on the 1st of January, 1825, dated on the 21st of March, 1824. This writing he gave to Humphries to collect, as an attorney at law. Humphries afterwards pretended that he had bought it on the judgment afterwards rendered on it, from his client, and paid for it in land. Suit was brought to October term, 1841, in Lowndes county, though Turner lived in Octibbeha county; judgment by default was rendered, execution issued, and the trial of the right of property had as stated. That Turner could not identify Reinhardt as his creditor, nor show his residence, or the dealings which led to his indebtedness, and formed the consideration of the bond; nor could Humphries tell who left with him the bond, identify his client, show how he bought the bond, to whom he gave the land, nor what land. That Turner, in a quarter where he had not expected exposure, had boasted of his success in this scheme of frauds; had said he had part of the property fixed, meaning the lots, would soon have the other part, meaning the slaves; and after a while he would get the property or its proceeds turned over to his boys.

After the verdict on the trial of the right of property, an execution issued on the Reinhardt judgment, and the slaves were taken into custody by the sheriff, when the following executions were issued, and levied on the slaves, to wit: one in favor of Wright and others against Turner, for $169.32, rendered December 13, 1839; one in favor of James Owens against Turner, for $62, of the 9th April, 1839; one in favor of Alexander Gray against Turner, for $1444, rendered on the 28th of May, 1839; and one in favor of Charles M. Rogers, for $193.63, of December 31, 1839; all these executions but those of Gray, which was the property of Bartee, were issued by the procurement of Humphries, to enable him to carry out his scheme of fraud. That before the slaves were sold under these executions, Humphries had an alias execution on the Reinhardt judgment issued, and, on the day of sale, in order to deter bidders, proclaimed that, as soon as the sale was over, he would seize and sell the slaves again under that judgment, to which they had been declared liable; in consequence of which the slaves only brought $735, about half their value, and were bought by Humphries. That, emboldened by his success, Humphries had directed a writ of garnishment on this judgment against Bartee, as a debtor of Turner; and on Bartee's answer that he owed nothing, had taken an issue, which was yet pending. The slaves were yet in Humphries's possession, nor had he paid anything, having agreed with the sheriff to pay the money to such executions as the circuit court of Lowndes should direct, and no direction had yet been made.

*3 The bill attacks the validity of the various executions under which the sale of the slaves took place, states that Humphries, "before he embarked in the Reinhardt speculation," knew of the loan of money by Bartee, and the nature of his title, and insists that if any of the executions under which the sale took place are valid, Bartee should be allowed to redeem them. The prayer was for injunction and general relief.

Turner denied in his answer that the object of his bill of sale to Bartee, and also of the subsequent public sale, was to secure the debt he owed him; but says, it was made to put his property out of the reach of his creditors and to defraud them, especially those who had claims against him as a member of an unincorporated banking company. He denies his indebtedness to Bartee, to the extent set up in the bill; denies the fraudulent combination with Humphries, and says, "that the graphic statements in the bill about the fictitious hero, Reinhardt, is all a humbug, and without the shadow of a foundation;" and adds, "see how a plain tale of truth will put this scare-crow to flight." He proceeds to detail the mode in which he became indebted to Reinhardt for goods purchased of him, while Reinhardt lived in Alabama. It is not deemed necessary to set out at greater length this part of the answer. He admits, that the body and signature of the note are in his hand-writing; that he has no interest in Humphries's proceedings or the judgment of Reinhardt. He admits the statements attributed to him by the bill, but says they were made for Bartee's ear, "to punish him for his base treachery," and were merely expressions of his rejoicing at the writhings and mournings of the miser defeated."

At this late time he could not remember any other particulars connected with the Reinhardt note; he did not defend the suit, because he had no motive, being irretrievably ruined, and Bartee having all his property.

Humphries's answer admits the loan by Bartee to Turner of the fifteen hundred dollars, and of the bill of sale, but insists that one of the objects of the latter was to defraud Turner's creditors. He dwelt at length on the fraudulent nature of the dealings between Bartee and Turner, both as to the matters mentioned in the bill and other matters; and also denies at length the correctness of Bartee's claims against Turner, and sets out his own views as to what was due.

He admits the delivery of the slaves to Bartee, but insists that it was merely a cover to avoid impending suits against Turner, and that the consideration expressed in the bill of sale was for a far greater amount than was due to Bartee, and was so inserted fraudulently. He states and insists that the public sale was also a mere sham sale; Bartee paid nothing, credited nothing, and only intended to further defraud Turner's creditors; that the sale was void for not being by order of court.

*4 The rendition of the judgment in favor of Reinhardt, the execution, the trial of right of property, the testimony of Turner, and the verdict are admitted, and it insists that this verdict estops Bartee from further inquiry as to the ownership in the slaves. It is claimed to be conclusive.

He denies the charges of collusion and confederacy with Turner, and all fraud as to the Reinhardt judgment; says he believes the note on which it is founded genuine, and executed when it purports to have been; it was sent to him by mail for collection, as an attorney at law, by one who styled himself, in his letter, Jeremiah C. Billingsley, and so far as known to him, Billingsley claimed to be the owner, and he receipted to him for it as such; the letter enclosing it was dated at Memphis, Tenn. early in 1841, and it informed him, as Turner was under the weather, the writer would have an agent in Columbus to do the best he could with it; that he has been informed that Billingsley lived in North Carolina. In due time a man by the name of Runnels, who held his receipt, and reported himself as the agent of Billingsley, came to Columbus, and finding out Turner's situation, traded the claim to respondent for the aggregate amount of two thousand acres of unimproved land in Neshoba county, for which he executed and delivered a deed in the name of Billingsley. He sued on the note in Lowndes because the property and witnesses were there. He believes the consideration of the note valid between Reinhardt and Turner; knows nothing of Reinhardt's present residence; he once lived in Lincoln county, North Carolina.

Humphries also proceeds to answer, at length, the allegations of the bill touching the sale of the slaves to which he became the purchaser; gives the history of each execution; insists the sale was by agreement with Bartee, who claimed to own one of the judgments under which the sale was made, and who was present at the sale and bid on the property, and is thereby concluded from attacking the sale as fraudulent.

Reinhardt's answer was subsequently filed. He says, he is an entire stranger to the matters and things set forth in complainant's bill, between complainant, Humphries and Turner, and can say nothing in relation thereto; he knows nothing of the judgment in his favor; Turner never owed him the money; and never gave him any such obligation as that stated in the bill on which the judgment is founded. He lived in Lincoln, North Carolina, in 1822, 1823, 1824 and 1825; was a merchant.

His deposition, subsequently taken, stated that he moved to Florida in 1842; for fifty years previously, had lived in Lincoln county, N. C.; he knew Turner in North Carolina, had some small dealings with him, he was a journeyman saddler; on cross examination, he says his brother-in-law took some saddles to Alabama, does not know that Turner obtained them.

Bartee filed an amended bill, stating that he did not know of the fraudulent character of the Reinhardt judgment until after the trial of the right of property, nor did he know of Reinhardt's residence until his bill was filed.

*5 Hezekiah W. Goode testified, that about the month of August, 1840, at the house of Turner, in Octibbeha county, he heard Turner say, that he let Bartee have a lot of negroes for the purpose of securing a loan of fifteen hundred dollars; but he intended to arrest the property out of Bartee's hands by law, and did not intend to pay a single dollar of it; that he had a plan with others, to law the property out of Bartee; that he would not be known in the transaction, but would be the only witness, and when the property was recovered, would share half of it; since 1840, he had heard Turner say, he had gained a part of the property agreeably to his plan, and at next court would gain the rest. He did not know Bartee.

Various depositions were taken to establish similar declarations by Turner, and the indebtedness to Bartee, and the other matters set up on either side in the pleadings; but it is not deemed requisite to set them out.

Vardy McBee, whose deposition was taken in North Carolina, proved, that he was the brother-in-law of Reinhardt, knew Turner in North Carolina, well; he had worked for him in his saddlery store; it was impossible for Turner to have traded with Reinhardt for so large a sum; the witness gives the history of Turner's life and dealings in North Carolina at length, and shews that from his condition in life, means, occupation and the witness's personal knowledge of Turner's character and situation, he could not have dealt with Reinhardt, or been trusted by him for any such sum.

Charles R. Crusoe testified, that he was the attorney who obtained the judgment on the Reinhardt note; it was placed in his hands by Humphries, who represented himself as the agent or attorney of Reinhardt; he had no cause to suspect Reinhardt not to be the owner until after the judgment, when Humphries wanted to give the sheriff an indemnifying bond to levy the execution, when Humphries told him, that he and some others had an interest in it.

Turner's deposition was also taken; among much other matter he testified, that he knew nothing about the consideration of the Reinhardt note; his impression was, he never executed it.

Several witnesses testified, that from the general character of Turner for veracity, they would not believe him upon his oath.

Depositions were also taken with reference to the sale by the sheriff; the agreement with Humphries and the sheriff as to the payment of the money.

The cause was referred to a commission of the court, to report the amounts due on the different judgments against Turner; and due by Humphries for the hire of the negroes since 1843. The report was made accordingly; and found that Humphries was indebted in the sum of $520.

The vice-chancellor, on final hearing, confirmed the report, and ordered that Bartee pay to the sheriff of Lowndes county, the sum found due by the commissioner on the different judgments, which was $576.56; and that thereupon, the sheriff deliver to Bartee the slaves in controversy; it was further decreed, that Bartee recover of Humphries, the sum of $520, and have execution therefor; and recover of Turner and Humphries his costs.

*6 Humphries prayed an appeal; and subsequently, Bartee a cross appeal; upon which the cause was argued in this court.

R. Evans, for Bartee,

Reviewed the facts and points involved in an argument of thirty pages in length. He contended, 1. That the answer of Humphries was in itself incredible in the account he gives of his connection with the matter, and clearly established his guilty collusion with Turner.

2. That the proof of fraud on the part of Turner and Humphries, developed by all the facts, and especially by Turner's false swearing and general conduct in the course of the plot, was perfectly overwhelming, and left nothing for the court to do but to make restitution to Bartee.

3. That the whole record refuted the charge set up in Humphries's answer of the fraud between Bartee and Turner; it rested alone on the statement of Turner; and it was plain that Bartee was to be the victim of Humphries's and Turner's fraud; but if Bartee had defrauded Turner, it would be no answer in Humphries's mouth to the fraud he had committed on Bartee; however Bartee may have defrauded Turner, it could be no shield to Humphries's fraud on Bartee.

4. The various executions levied on the slaves at the instance of Humphries, to shield his pretended right, derived under the fraudulent trial of the right of property, can none of them avail to disturb Bartee's right to the slaves. On this point, Mr. Evans examined each execution separately, and insisted that they were, under the facts of each, ineffectual to bar Bartee's rights.

5. That Bartee really made a bona fide loan of the fifteen hundred dollars to Turner, and in all their subsequent dealings had acted with integrity and probity. The dealings between Bartee and Turner were scrutinized at great length.

6. That the bill of sale from Turner to Bartee, though absolute on its face, yet intended merely as a mortgage, was not therefore void. It was no evidence, or presumption even of fraud, and it could be shown by parol that it was a mortgage. Whittick v. Kane, 1 Paige, 202; Slee v. Manhattan Company, Ibid. 77; 3 Dana, 176, 252; 2 Cow. 330.

7. The insertion of the consideration of $2700 in the bill of sale was no evidence of fraud. The actual consideration may always be proved. 2 Phil. Ev. (Cow. & Hill's ed.) 217; 3 Ib. 1441, n. 964; 4 N. H. 229; 1 J. J. Marsh. 388.

8. Even if the subsequent deed to Bartee were fraudulent, it would not make the bill of sale fraudulent; yet there was no proof Bartee accepted that subsequent deed, and without that it was no deed. Jackson, ex dem. Eames v. Phipps, 12 John. R. 418; McCrea v. Dunlap, 1 John. Cases, 116; Maynard v. Maynard, 10 Mass. 456; 3 Phil. Ev. (Cow. & Hill.) 1283 - 1285, n. 888.

*7 9. There was no proof that the subsequent deed was fraudulent; or if so, that any one but Turner shared in the fraud.

10. The charge in the answer of Humphries, that Bartee swore falsely when he made oath to the ownership in these slaves, is unsupported; for though he had title but as mortgagee, he was still the legal owner. 2 Sto. Eq. 297, § 1031; 2 Kent Com. 582; 4 Ibid. 139; Brown v. Bennett, 8 John. 96; 1 Pick. 389; Ferguson v. Lee, 9 Wend. 258; Astor v. Hoyt, 5 Ibid. 617; Hart v. Ten Eyck, 2 John. Ch. 100.

11. The decree of the vice-chancellor was erroneous as to Bartee, in making him pay off the bona fide judgment executions, which had been levied on the slaves. Bartee's lien was older than that of the judgments.

12. Bartee ought not to pay the costs; to exempt fraud from the costs and punish the innocent, is an error which should be corrected.

Baine, on same side.

1. All parties admit the validity of Bartee's loan of the fifteen hundred dollars; no one even hints at fraud in it but Turner; and the case shows that he was guilty of perjury in so doing.

2. Bartee's mortgage of May 11, 1839, by absolute bill of sale, is no evidence of fraud; the mortgage could be shown by parol. James v. Johnson, 6 John. Ch. R. 417.

3. The proof shows that there were at least $2754 due Bartee by Turner, nearly double the original loan after allowing all credits.

4. The whole record establishes the fraudulent combination to defraud Bartee; the Reinhardt judgment is a nullity; the trial of the right of property under it void, and in no way affects Bartee's rights.

5. Bartee's advances went to pay judgments against Turner; even if Bartee contemplated a fraud, he will be protected to the extent of the legal right conferred by the judgments he paid off; for if a fraud was contemplated, it was absque injuria. 5 How. Mi. 687; 1 Sto. Eq. 212; Freem. Ch. R. 343.

6. Even if Bartee designed defrauding, and did defraud Turner's creditors, it could not be relieved against unless it militated against an existing right. Humphries had no right whatever; he claimed under fraudulent and void proceedings throughout.

7. It is plain from the proof that Bartee committed no fraud.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The object of the bill in this case was to vacate a sale of certain slaves mentioned in the bill, of which respondent, who is appellant in this court, was the purchaser at a sale made by the sheriff.

The record is very long, but a very brief summary of the important facts will show the grounds on which the decision must rest.

On the 21st of February, 1839, Bartee loaned to one S. M. Turner the sum of $1500, and took a deed of trust on two town lots as a security. On the 11th of May following, Turner also conveyed to Bartee the slaves in controversy, and received, as it is alleged, other sums of money, and Bartee also agreed to pay a debt which was secured by a prior deed of trust. The bill of sale of the slaves was absolute on its face, though it is admitted to have been intended as a mortgage. This conveyance was accompanied by possession, and was intended as a further security for the original loan. Turner failed to pay, and by his consent the slaves were sold at public sale, and Bartee became the purchaser.

*8 On the 6th of October, 1841, a judgment was rendered against Turner in favor of one David Reinhardt, for upwards of $5000, on a writing obligatory dated as far back as the 21st of March, 1824, payable the 1st of January, 1825. This suit was brought in Lowndes county, although Turner resided in Octibbeha county, and the judgment was taken by default. An execution issued on this judgment, which was levied on the slaves in the hands of Bartee, who claimed them as his property. An issue was made up to try the right, when Turner was introduced as a witness, and on stating that he was disinterested, was permitted to testify. He stated that the bill of sale to Bartee was made to defraud creditors, and the jury found in favor of the plaintiff in execution. The property was delivered up and sold under the Reinhardt judgment, though prior to the sale other executions had been placed in the hands of the sheriff. Humphries purchased the slaves at about half their value. He claims to be the assignee of the Reinhardt judgment. The note on which it is founded, was sent to him by mail for collection by one Billingsley, and he afterwards purchased the judgment from an individual, who professed to be an agent of the person who had sent the note for collection. This judgment constitutes the groundwork of this whole proceeding. The bill alleges that it was recovered by fraud and collusion between Turner and Humphries, on a note forged for the purpose, with a view of taking the slaves from complainant. Reinhardt is made a party to the bill, and his testimony was also taken. He positively disclaims ownership of such a note, or knowledge of the transaction, and says Turner never owed him that amount of money. He it seems resided in Lincoln county, North Carolina, at the date of the note, and had resided there many years, both before and afterwards, but now lives in Florida. He had known Turner when he was a young man, and had, as a merchant, some dealings with him, but never to the extent of the note. In addition to this testimony, Turner's declarations as to his purpose, were also in proof. The scheme was no doubt concocted for the purpose mentioned in the bill. This judgment is beyond all doubt fraudulent, and it is enough to say of it that it is a nullity, and all the proceedings under it are of the same character. No execution predicated on it could operate to pass a title to Humphries, who claims to be the owner of the judgment, and is, to say the least, chargeable with notice of the fraudulent character of the transaction.

In the answer of Humphries, the judgment on the trial of the right of property is relied on as a bar to the relief sought. We have said the original judgment was void for fraud. The subsequent proceeding was equally so. When a court of equity is resorted to for the purpose of letting the party into a defence which is, in its character, triable at law, he will be held to strict vigilance. By an amended bill it is alleged that complainant had not obtained information as to the nature of the Reinhardt judgment, until after the trial at law. In July, 1843, he received the first information as to Reinhardt's residence, and his informant assured him that he was satisfied, from his acquaintance with both Reinhardt and Turner, that the latter could not have owed to the former any such debt. He then opened a correspondence with Reinhardt, and did not become fully informed on the subject until after he had filed the original bill. The circumstances of this case are peculiar. A note was forged bearing date nearly twenty years before the judgment was rendered on it. It was payable to a stranger, who was a citizen of another state, whose residence was likely to be unknown. But even if it should be found out where he had lived, he had changed his residence to a distant state. The great wonder is that the scheme was discovered at all. Under the circumstances, it would be difficult to say, what was or what was not proper vigilance.

*9 But this case differs from those in which the rule of vigilance is usually applied. The complainant is affected by a judgment to which he was not a party. His proper remedy for avoiding it was in chancery. It is a subject over which chancery has original jurisdiction. The complainant might have proceeded by bill for that purpose, before the trial of the right of property. A stranger to a judgment may always show that it was recovered by fraud. 1 Starkie's Ev. 241; 1 Phillips's Ev. 341; 3 Ib. (C. & H.) 854. Has a court of chancery lost its power to interpose? Surely not, when the judgment is void. No relief can be had against a void contract, when the defence ought to have been made at law; but if the judgment itself be void, it is a different question. Hence, on gaming contracts, chancery will give relief, because the judgment is void, although the defence might have been made at law. If the contract be void, and the party fails to make his defence at law, the judgment is valid, and chancery will not interfere with it. But this judgment was void by the common law, and also by statute. It derives no validity from the failure to make the defence on the trial of the right of property. The original judgment was relied on as binding the property, but it was void, and may be set aside by a court of chancery. 1 Story's Eq. 275, § 252. It is true that Bartee might have pleaded, on the trial, of the right of property, that the judgment was fraudulent. But his failure to do so, does not make it valid. His want of vigilance has not imparted validity to the judgment, and the rule therefore does not apply.

But there are other judgment-creditors, whose rights are not to be overlooked. The bill of sale was made 11th of May, 1839. It was to operate as a mortgage. There is no doubt about the loan of $1500; that is admitted by all. The judgment in favor of Owens was rendered 9th of April, 1839, and is therefore a lien on all the negroes except Kitty, she having been previously conveyed in trust to secure a debt due to Blount. The other judgments were rendered after the bill of sale, and could bind nothing but Turner's right to redeem.

The case must be remanded for an account, and the rights of the parties will be regulated and allowed, according to the following directions. Bartee alleges that he paid a debt to Blount, who held a deed of trust on the woman Kitty, and took a transfer. If this be so, it constitutes a prior lien on the property included in that deed of trust, inasmuch as it bears date in August, 1838. By this arrangement Bartee was substituted to the rights of Blount.

2. Bartee is entitled to be allowed the $1500, and the other sums which he may prove to have been paid as a consideration for the conveyance of the negroes. Humphries is also to account for hire for the time he has had the negroes in possession, and Bartee is of course to be charged with what he has received.

3. Any surplus that may remain is to be appropriated to the judgment-creditors, in their order of priority, excluding, however, such judgments as were not recorded in the proper county according to the statute. Or Bartee may redeem from these creditors.

*10 4. In order to adjust these rights the negroes will be sold.

The vice-chancellor decreed the judgments to be a lien on the property, on the ground that the bill of sale, which was to operate as a mortgage, had not been recorded. In Dey v. Dunham, 2 Johns. Ch. R. 182, a deed absolute on its face, was converted into a mortgage by a subsequent defeasance in writing, and it was held that the subsequent agreement should have been registered as a mortgage, and that the registry of the absolute deed was not sufficient, because, as it was said, a subsequent purchaser was not bound to search the record of deeds to be protected against the operation of a mortgage. But here there was nothing to record. It is an equitable mortgage, an absolute instrument which equity converts into a mortgage, and equity will not so convert it to the prejudice of the grantee. The general rule is, that the instrument which gives rise to an equitable mortgage must be registered, if it be not an actual conveyance, but merely an instrument which raises an equitable mortgage. 2 Powell on Mort. 621, note. A bill of sale need not be recorded, and any parol agreement in relation to it cannot be. In the case cited from 2 Johnson, the possession probably remained with the grantor. Bartee took possession of the negroes, and no other conveyance was necessary to pass title. This was equivalent to notice.

Decree reversed, and cause remanded.

10 Smedes & M. 282, 18 Miss. 282, 1848 WL 1981 (Miss.Err. & App.)

End of case ------------




High Court of Errors and Appeals of Mississippi.
ZACHARIAH WILLIAMS et al.
v.
DOE ex dem. BENJAMIN C. OPPELT.

January Term, 1844.

It is error to permit a sheriff to amend his return after the return term, without notice to the adverse party.

The following words are a sufficient return of service in an action of ejectment, viz: "executed the within declaration and notice upon the within named A. B. & C. D. April 25th, 1843."

The common law rule requiring an affidavit of the service of the declaration and notice in ejectment, is altered by our statute; the affidavit is not necessary in this State.

In an act of ejectment, it is error to enter a judgment by default, against the tenants who neglect to appear and make themselves defendants; it should be rendered against the casual ejector.


*1 THIS case is brought here by writ of error to the circuit court of Neshoba county.

The declaration was in the ordinary form of ejectment; the lessor of the plaintiff was Benjamin C. Oppelt, the casual ejector, Zachariah Roe; the tenants in possession, to whom the usual notice was addressed by the casual ejector, were Zachariah Williams and Joseph D. Abney.

The Sheriff's return on the declaration was as follows: "Received April 25th, 1843. L. B. Austell, sheriff, by A. B. Wooldridge, deputy sheriff. Executed the within declaration and notice, upon the within named Zachariah Williams, and Joseph D. Abney, April 25th, 1843. L. B. Austell sheriff, by A. B. Wooldridge, deputy sheriff."

On the third day of May, 1843, judgment was entered by default, against Williams and Abney, the tenants in possession, and a writ of habere facias possessionem awarded against them.

At the October term, 1843, of the same court, held at Philadelphia, Neshoba county, on the first day of November, on motion of the plaintiff's attorney, leave was given the sheriff to amend his return; which was accordingly amended as follows: "Executed the within declaration and notice upon the within named Zechariah Williams and Jos. D. Abney, April 25th, 1843, L. B. Austell. Sh."

V. E. & B. D. Howard, for plaintiffs in error.

1. As the tenant neglected to appear, and make default, the judgment should have been taken against the casual ejector. H. & H. Dig. 590. Adams Eject. 247. 2 Johns. Cas. 106.

2. It was error to admit the sheriff to admend his return after the return term, without notice to the adverse party. 5 How. 173. If the first return was insufficient, the judgment now stands as without notice, because the amendment is void.

3. It does not appear from the papers, that the declaration was filed on the first day of the term; unless such was the case it was error to take judgment by default.

4. The service in this case of the declaration and notice, is insufficient. There is a simple indorsement of execution by the sheriff. The notice to the tenant in ejectment is not in the nature of process, and does not admit of the same kind of service. The statute permits the return to be made according to the laws of this state; but return and service are very different things. Besides the notice in ejectment, is not declared to be process, and therefore the common law rule is not changed, as to the service of notice on the tenant. H. & H. Dig. 617. 1 Low's Rep. 134. There should have been an affidavit of service, according to the common law proceeding.

No counsel appeared for the defendant in error.

Mr. Justice CLAYTON delivered the opinion of the court.

Several errors are assigned as reasons for the reversal of this judgment, which we will proceed to notice.

*2 First, it was error to permit the sheriff to amend his return, after the return term, without notice to the adverse party. This ground is certainly well taken, and it throws us back upon the inquiry, whether or not the first return was sufficient. It is in these words, "Received April 25th, 1843. L. B. Austell sheriff, by A. B. Wooldridge, deputy sheriff. Executed the within declaration and notice upon the within named Zachariah Williams and Joseph D Abney, April 25th, 1843. L. B. Austell, by A. B. Wooldridge Deputy Sheriff." We are unable to perceive any defect in this return, or any reason why an amendment was desired, and in truth the return as amended is word for word the same as the first, except that the name of the deputy sheriff is omitted, and the service is thus made to appear to have been by the principal. If the first return were not true, this is not the mode to correct it.

It is next objected, that the service of the declaration and notice is insufficient, because there is simply an indorsement of "executed" by the sheriff, unaccompanied by an affidavit of service.

At common law the notice might be served either by a private person, or by an officer; but whether served by the one or the other, an affidavit of service was necessary. The mere return of the officer was not sufficient. 1 Rob. Prac. 452. Adams on Eject. 243. But our statute alters this rule. It directs that the process shall be according to the course of the common law, but that the return shall be according to the laws of this State. This can mean nothing else, than that the return of service by the sheriff, shall be sufficient evidence of the execution of process in this, as in all other instances. H. & H. 617.

The last objection is that it was in error to enter a judgment by default, against the tenants who neglected to appear, and made default, but that it should have been rendered against the casual ejector. This objection is well taken. That was the rule at common law, and it is expressly re-enacted by the statute of this State. Adams Eject. 248. H. & H. 617.

For this error the judgment will be reversed, and this court proceeding to give such judgment as the circuit court should have given, doth direct a judgment to be entered against the casual ejector.

1 Smedes & M. 559, 9 Miss. 559, 1844 WL 2015 (Miss.Err. & App.)

End of case ------------




High Court of Errors and Appeals of Mississippi.
CLAIBORNE MANN
v.
HEZEKIAH NICHOLS.

July Term, 1843.

A sheriff's return of satisfaction on an execution cannot be set aside as false, upon the motion of the plaintiff, without notice to either the defendant in the execution or sheriff.

Judgment to set aside a sheriff's return of satisfaction as false, on motion of plaintiff, without notice to the sheriff or defendant, will be set aside.

*1 ERROR from the circuit court of Neshoba county.

The facts of the case fully appear in the arguments of counsel and the opinion of the court.

Enloe & Hubbard, for plaintiff in error.

Any person whose interest is affected by a judgment may prosecute a writ of error. Flournoy v. Smith et al., 3 Howard's Reports, 62.

The interest of the plaintiff in error is affected by the judgment on motion in the court below; the execution ordered by the judgment to be issued, was to run against his goods and chattels, lands and tenements.

Process should have been issued to bring the plaintiff in error into court before a judgment was rendered affecting his interest, or at least he should have had notice of the pendency of proceedings by which his interest was to be affected by some means known to the law. Same authority.

If the return made by the sheriff, on the execution against the plaintiff in error, was not made according to the facts, its falsehood was a matter to be ascertained by a jury. Upon the face of the record the plaintiff in error is discharged from liability on the judgment; if he is in fact liable, that liability arises, or its continuance depends, on matter in pais, and can only be shown by due course of law. It cannot be inquired of by a circuit judge, on motion, without the intervention of a jury. The record should show that a trial by jury was had. Same authority. See also Rev. Code, 251, § 7.

Forrester, for defendant in error.

The record shows that the defendant in error brought suit on a promissory note in the circuit court of Neshoba county, for upwards of $5000. That the suit was discontinued as to Isam Daniel, and judgment executed by default against Mann, for about $4600. Execution issued upon said judgment was placed in the hands of the sheriff of Neshoba county, who returned the same, satisfied. That, at the June term, 1841, a motion was made to quash the return on said execution, because it was false, by the defendant in error, which motion was sustained; from which latter judgment a writ of error is prayed. There is no bill of exceptions in the case setting forth the evidence on which the court acted, and this court will therefore presume the judgment correct. This court has often decided that it will not disturb judgments rendered by the circuit court, without a bill of exceptions setting forth the testimony on which the court below acted. For this court will presume, that there was sufficient testimony to base the judgment of the court below on, as well as evidence, that the parties were regularly before the court, unless the record proves the contrary.

As to the objection that there should have been a jury empannelled to try the facts; this court has decided that the circuit court may ascertain the facts upon a motion in a case of this kind themselves, without the intervention of a jury, and the judgment will not be reversed unless the trial by jury be demanded by the parties.

*2 As to the objection that it is uncertain which of the defendants the writ was executed on: there is no uncertainty about it. Mann lived in Neshoba county, and Isam Daniel in Newton county. The original writ was issued to Neshoba county, and no duplicate to Newton. The original writ was returned, executed on the defendant, to wit, Mann, and the duplicate does not appear in the papers-- perhaps never was returned; therefore it was discontinued as to Daniel, and judgment by default against Mann.

There is therefore no error in the case.

Howard, in reply.

1. It appears of record, that the judgment of the court was erroneous. When such is the case, no bill of exceptions could be tendered. The officer's return, and the judgment of the court, contain all the facts of the case.

2. The record does not show any notice to the defendant in the motion.

3. It was not competent to assail the truth of the sheriff's return by motion against the defendant by the plaintiff in the execution. The officer had returned the execution, satisfied; which was conclusive between the parties to the record. If the return was false, the remedy was by a proceeding against the sheriff, and not defendant in the execution. 8 Am. Com. Law Rep. 54. 3 Phil. on Ev. (late ed.) 1087, where all the authorities are collected.

Mr. Justice CLAYTON delivered the opinion of the court.

The appellee, on the 19th of April, 1839, caused an execution to issue against the appellant, from the circuit court of Neshoba county, upon a judgment which he had previously obtained. The execution was returnable to the following October term of the court, and was returned satisfied in full. At the fall term, 1840, of the court, a motion was entered to set aside the return, because it was false, and the motion was continued till the May term, 1841. No notice appears ever to have been given either to the sheriff, whose return was sought to be set aside, or to the defendant in the execution. At the term to which the case was continued, the court gave judgment that the return was false, and should be quashed, and directed a new execution to issue. The record does not show that any one appeared to make defence, and the whole proceedings seem to have been ex parte.

The want of notice, unless there had been an appearance by the opposite party, is a fatal defect. It is insisted that, as there is no bill of exceptions, everything will be presumed to have been rightly done. There is no room for a presumption of this kind, when the adversary party had no opportunity to file exceptions.

It is unnecessary to notice the other points in the cause.

The judgment of the court below will be reversed, and the motion is overruled for want of notice.

1 Smedes & M. 257, 9 Miss. 257, 1843 WL 2050 (Miss.Err. & App.)

End of case ------------




Circuit Court of Appeals, Fifth Circuit.
TIBBS
v.
DEEMER MFG. CO.
No. 2,050.

October 3, 1910.

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

Action by J. A. Tibbs against the Deemer Manufacturing Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Where, in an action for injuries to a servant, there was evidence indicating that defendant was negligent in furnishing plaintiff certain defective tongs to be used in connection with a log skidder, and that such negligence was the cause of plaintiff's injury, and the evidence did not show as a matter of law that plaintiff was either negligent or assumed the risk, the court erred in refusing to submit the case to the jury.
*49 S. A. Witherspoon, for plaintiff in error.

C. C. Dunn, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK, Circuit Judge.

The plaintiff in error, J. A. Tibbs, brought this suit against the defendant in error, the Deemer Manufacturing Company, to recover damages for personal injury caused to have been received by him through the negligence of the defendant. The suit was instituted in the state court in Neshoba county, Miss., and was removed by the defendant to the Circuit Court of the United States for the Southern District of Mississippi on the ground of the diverse citizenship of the parties. The declaration states, in substance, that the defendant owns a large sawmill in Neshoba county, and from its mill has constructed and operates a railroad out into the pine forests from which it secures the logs to be manufactured into lumber. Upon this railroad is operated two skidding machines, to which are attached very long wire ropes, and to the end of each of these ropes is fastened a pair of tongs made of iron bars, and the teeth or points of these tongs are fastened into the end of the logs, which are then drawn to the side of the railroad by the power of the skidding machine. The plaintiff was the foreman of the crew which operated the skidding machine and brought the logs from the woods to the railroad; and his complaint is that the defendant failed to use ordinary care in providing the crew with suitable and safe tongs, alleging that the tongs provided were entirely too small, weak, and insufficient for the purpose of their use, and were, therefore, unsafe and dangerous. The plaintiff notified the superintendent of the defendant, one Tedford, that the tongs or hooks were unsafe, and was promised by the superintendent that, if he would continue in the service of the defendant, it would supply him with larger and stronger hooks or tongs, which would be safe and suitable for the work; that this promise had not been fulfilled when, on the 30th day of June, 1908, one of the hooks, which had been fastened to the end of a log which the skidding machine was drawing to the railroad, gave way, and, slipping off the end of the log, was thrown with great force and violence along the line towards the skidding machine, and in its passage struck a tree, and, rebounding from the tree, glanced to the position of the plaintiff, knocking him down and breaking both of his legs, disabling him permanently. It states that the plaintiff had taken his position about 41 feet from the line along which the log was being dragged, which was a position of reasonable safety, had the tongs been suitable and safe. The negligence of the defendant, as averred, consisted in not providing suitable and safe hooks or tongs.

The defendant pleaded the general issue, and, according to the practice in Mississippi, gave notice of special matters of defense. These notices state, in substance: (1) That the plaintiff had knowledge of the insufficiency of the tongs or hooks, and therefore assumed the risk. *50 commonly used at that time. (3) That the plaintiff selected an unsuitable and unsafe route over which to drag the log. (4) That the log in its course to the railroad struck a root or stump, which obstruction subjected the tongs or hooks to an unusual and extraordinary strain, and that it was caused to come loose by this strain, and not by any defect or weakness. (5) That the log in its course was obstructed by a claybank, and that, instead of detaching the log from the claybank, the plaintiff negligently caused the engineer to put on an extra amount of force to overcome the obstruction, and that this negligence of the plaintiff, and not the defects of the tongs or hooks, caused them to pull out of the log and wind around a tree. (6) That, when the cable and tongs were wound around the tree, the plaintiff negligently caused the engineer to put on more force to unwind the cable, instead of unwinding it with his hand, and that in thus unwinding it the tongs struck and injured plaintiff. (7) That while the log was being dragged to the road, and while it was held by the claybank, and while the tongs were being unwound from the tree, the plaintiff's position was dangerous, and that he was negligent in taking such position. These seven contentions of the defendant are denied in the counternotice of the plaintiff.

On the trial, the plaintiff testified in his own behalf. He also called and examined as a witness V. M. Tedford, who testified that on the 30th of June, 1908, the day when the injury was received, he had charge of the Deemer Manufacturing Company's works; was superintendent; that he had all authority, hired and discharged men, raised and lowered the wages, etc. Plaintiff also called and examined as a witness J. R. McCall, who testified that at the time the injury was received he was handling the engine of the skidding drum; he was called the engineer in the work that the plaintiff was conducting with it; he saw the plaintiff when he was hurt. Plaintiff also called and examined as a witness Mr. E. G. Brooks, who testified that:

'On the 30th of June, 1908, when the plaintiff was hurt, Mr. Tibbs was my foreman, and I was working under him.'

The plaintiff also called and examined G. W. Bailey, who testified that at the time the plaintiff was hurt, this witness was working for the company in the blacksmith shop, where the tongs were made and repaired. Mr. J. L. Beard, a witness, was called and examined for the plaintiff, who testified that at the time the plaintiff was injured the witness was working for the Deemer Manufacturing Company in the woods with the skidder, or near the skidder, and had helped to tong the log. A physician, who had examined the plaintiff when he was hurt, testified as to his injuries; and an insurance man testified as to life expectancy. These witnesses were examined fully by counsel for the plaintiff, and cross-examined exhaustively by counsel for the defendant; displayed a diagram of the location, showing the position of the railroad track with the skidder engine on it, of the log, of the place where the plaintiff was standing when he was hurt, the amount of steam the skidder engine had on, and all the details conceivable to picture fully to the jury the circumstances surrounding the actors at the time of the injury, with the proof of the blacksmith as to the material *51 and construction of the tongs, etc. Whereupon the plaintiff rested. And the evidence which had been offered by him was all the evidence introduced on the trial of the cause.

The defendant offered no evidence of any character, but, at the conclusion of the evidence for the plaintiff, moved the court to exclude all the testimony of the plaintiff from the jury, and to give the jury a peremptory instruction to find a verdict for the defendant, which motion being argued, and considered by the court, was sustained; and the court excluded from the jury all the testimony of the plaintiff, and instructed the jury to find a verdict for the defendant, to which action of the court the plaintiff then and there duly excepted; and thereupon the jury returned the verdict, 'We, the jury, find for the defendant,' on which the judgment for the defendant was rendered; and the plaintiff sued out this writ of error, and assigns for error that the court erred in excluding the testimony of the plaintiff, and in instructing the jury to find for the defendant.

In our opinion, this assignment is manifestly well taken: (1) For there was evidence tending to show that the defendant was negligent in furnishing defective tongs, and that such negligence caused plaintiff's injury; (2) the evidence does not show, as a matter of law, that plaintiff was either negligent or assumed the risk attendant upon the work in hand. It seems manifest to us that the court erred in refusing to submit the case to the jury, and that the judgment should be reversed, and the cause remanded to the Circuit Court, with direction to award the plaintiff a new trial.

And it is so ordered.

182 F. 48, 104 C.C.A. 488

End of case -------------
 

    

 


 

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