Alabama & V. Ry. Co. v. Thomas

• Decision Date: 10 July 1905
• Citation: 86 Miss. 27,38 So. 770
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY ET AL. v. GRIGSBY E. THOMAS ET AL
• Court: Mississippi Supreme Court

38 So. 770

86 Miss. 27

ALABAMA & VICKSBURG RAILWAY COMPANY ET AL. v. GRIGSBY E. THOMAS ET AL

Supreme Court of Mississippi

July 10, 1905

FROM the chancery court of Rankin county, HON. HENRY C. CONN Chancellor.

Thomas and others, appellees, were complainants, and the railway company and others, appellants, defendants in the court below. From a decree overruling defendants demurrer to the bill of complaint, they appealed to the supreme court.

Decree reversed and cause remanded.

Harry H. Hall, and McWillie & Thompson, for appellant, Alabama &amp Vicksburg Railway Company; Mayes & Harris, for appellant Farmers' Loan & Trust Company.

If it be true that "soft words butter no parsnips," it is no less true that "hard words break no bones." A case of fraud cannot be made out in a bill of equity simply by the use of epithets, however liberal that use may be. United States v. Atherton, 102 U.S. 372; Fogg v Blair, 139 U.S. 118; Keat v. Canal Co., 144 U.S. 91; Weir v. Jones, 84 Miss. 602.

The bill should state concrete, specific facts, and not rest its case on mere charges of scheming and confederating, etc without showing in what way damage was inflicted upon the complainant by the doing of what was done.

It appears that complainants, in violation of first principles, are not only seeking the interposition of equity without offering to do equity, but are also complaining of a proceeding which did them no hurt, since now, as heretofore, they are unwilling to redeem. Even in cases of proven fraud, a judicial sale will not be set aside at the instance of those who do not appear to have been prejudicially affected by it. Harris v. Ransom, 24 Miss. 504: Gilmer v. Nicholson, 21 La. Ann., 589; Stockton v. Downey, 6 La. Ann., 581; Blockman v. Allison, 1 Ky. Law, 278; 17 Am. & Eng. Ency. Law (2d ed.), 966.

The claim asserted in this bill is barred by the ten years' statutes of limitations, Code 1892, § 2763, which is the same as Code 1880, § 2696.

Assuming the bill to be otherwise good, and that it shows equity, etc., this section applies and bars the case made. Whether the decree of the federal court complained of and the sale made thereunder were void or were voidable, still the property itself passed into the hands of the Alabama & Vicksburg Railway Company (the new company); and if this company did not acquire a good title thereto as against these complainants, then it took the property as trustee ex maleficio.

That an implied trust is within this section of the statute of limitations is well settled in this state. Livermore v. Johnson, 27 Miss. 284, 288; Cook v. Lindsey, 34 Miss. 451, 455; Cooper v. Cooper, 61 Miss. 676.

Even if the Alabama & Vicksburg Railway Company had taken the property as an express trustee, the statute would still have begun to run under the state of facts shown in the bill, since the Alabama & Vicksburg Company, when it took the property, took it under a claim of adverse right thereto, and, as the bill avers, has been continuously claiming the same ever since. Westbrook v. Munger, 61 Miss. 329.

There can be no question about the bar. If the bill is maintainable now, it was maintainable as soon as the Alabama & Vicksburg Railway Company took possession under claim of adverse right. The bill expressly states that it So took possession prior to November 25, 1889. This bill was filed on October 9, 1901, which is after the lapse of over eleven years and ten months.

Moreover, the bill shows, by its own affirmative averments, not only that the railroad company's property was taken possession of in 1889, but also that such possession has been since then continuous, and yet the bill shows absolutely no reason, it does not even profess to give an excuse, for the failure to assert the pretended equities of these complainants long ago.

Nowhere in this bill is there any pretense that these complainants, or any of them, were actually ignorant of anything that was doing in the federal court. Nowhere is it alleged that they were in ignorance of either the decree made, or of the sale before its making, or of the transfer of the property to the hands of the Alabama & Vicksburg Railway Company, or of the claim of ownership by that company. Indeed, if the bill had averred such ignorance, as it does not so aver, such averment would have been, in the face of the facts shown in the bill, utterly fatuous and unavailing. This, for the reason that the taking possession of property is notice to all concerned of the nature and extent of the claim of right under which such possession is taken. That such is the law is well settled in Mississippi. See Brame & Alexander's Digest, p. 869, and the authorities there cited.

Such possession taken will even dispense with the necessity of publication in foreign attachment cases. See Calhoun v. Ware, 34 Miss. 146; Erwin v. Heath, 50 Miss. 795; Loughridge v. Bowland, 52 Miss. 546; Cooper v. Reynolds, 10 Wall., 315.

The ten years' bar cannot, therefore, be evaded on the excuse of ignorance; neither can it be evaded on the ground of concealed fraud, and for two reasons: (1) Because no concealment is averred in the bill, nor is even ignorance alleged to have existed at any time; and (2) because no fraud is alleged except what (if that can be deemed fraud at all) is, and always was, apparent on the very face of the record in the federal court.

Now, it is well settled that where a question of the statute of limitations turns on the proposition that the statute does not apply because of concealed fraud, the bill, if it shows on its face that the period fixed by the statute as constituting the bar has elapsed, must, in order to avoid a demurrer, do either one of two things: It must expressly show that the fraud alleged to have been concealed was not discovered until a time within the period fixed; or else by its averments it must substantially, although it may not expressly, show the same fact. In other words, the concealment by which the operation of the bar is sought to be evaded must appear on the face of the bill, either by express or else by substantial averment, and if it do not so appear, the defendant is not put to his answer. Livermore v. Johnson. 27 Miss. 284, 290; Buckner v. Calcote. 28 Miss. 432, 596; Wilson v. Ivy, 32 Miss. 233; Cook v. Lindsey, 34 Miss. 451; Edwards v. Gibbs, 39 Miss. 166.

We have shown above that even if this bill had averred ignorance on the part of these complainants as an excuse for their failure to file the same at an earlier date, it would have been a futile and unavailing averment in the face of the facts shown, that the Alabama & Vicksburg Railway Company took actual and adverse possession of the property, and has been holding the same continuously ever since. We now call the court's attention to the further fact that even if the bill had undertaken to allege concealed fraud, such allegation would also have been futile and unavailing, for the reason that the bill shows in all its details throughout that the alleged fraud complained of was matter of public record in the federal court. Young v. Cook, 30 Miss. 320, 331; Fleming v. Grafton, 54 Miss. 79, 85; State v. Furlong, 60 Miss. 839; Brooks v. Spann, 63 Miss. 198; Metcalfe v. Perry, 66 Miss. 68, 78.

On the subject of laches and the inequity of enforcing claims which are not promptly asserted, especially where no excuse for delay is shown, we refer the court to Foster v. Mansfield, etc., R. R. Co., 146 U.S. 88; Harwood v. Railroad Co., 17 Wall., 78; Johnson v. Standard Co., 148 U.S. 370; Lansdale v. Smith, 106 U.S. 391; Norris v. Haggin, 136 U.S. 386.

Promptness in the assertion of claims against mining property has, by reason of the frequent fluctuations in value, been often held to be essential, and the principle is quite as well settled in respect to railroad property. Irvin-Lick Oil Co. v. Marbury, 91 U.S. 587; 18 Am. & Eng. Ency. Law (2d ed.), 102.

The case of Foster v. Mansfield, etc., R. Co., supra, is on all fours with the one at bar.

Green & Green, for appellees.

The basis of our claim is as holders of third mortgage bonds of the Vicksburg & Meridian Railroad Company, issued in 1881, and the principal not due nor payable until 1921, twenty years hence. As an action at law founded on the personal obligation for the principal of them would now be dismissed as prematurely brought--and it is manifest that they will not be barred until six years after their maturity--in 1927. Hence, there has never been any default in payment of principal on which we could proceed. As to interest, the bond provides: "This bond . . . does not bear interest at any fixed rate, but the holders of the same shall be paid pro rata each year the annual net earnings of said company not exceeding seven per cent of the amount of the entire issue of such bonds of any one year, realized and remaining," etc., after payment of all the expenses of the railroad, including the payment of interest on both the first and second mortgage bonds. Nowhere in the record does it appear when this net income was made, or when it was diverted by our trustee--the things which determine and give rise to our cause of action for the interest. A demurrer was, hence, an improper pleading; and as to the statute of limitations, it must be overruled, as the bill does not show the facts upon which it can be based.

The case of Millsaps v. Shotwell, 76 Miss. 938, is directly in point, and is controlling as to interest. Mr Justice Whitfield said: "As to the defense of the statute of limitations, it is obvious that Reuben had no right of action prior to March 10, 1896. He was precisely in the attitude of a contingent remainderman as against a life tenant. His interest was wholly expectant, dependent upon whether or not the very uncertain...