Barry v. Mattocks

• Court: Mississippi Supreme Court
• Writing for the Court: McGowen, J.
• Citation: Barry v. Mattocks, 156 Miss. 424, 125 So. 554 (Miss. 1930)
• Decision Date: 13 January 1930
• Docket Number: 27535
• Parties: BARRY v. MATTOCKS et al

125 So. 554

156 Miss. 424

BARRY v. MATTOCKS et al

No. 27535

Supreme Court of Mississippi

January 13, 1930

Division A

1 EQUITY. cross-bill seeking partition of personalty and partnership accounting was germane to original bill for partition of specific lands (Hemingway's Code 1927 sections 373, 3035, 3036).

Cross-bill seeking a partition of personalty and a partnership accounting was germane to original bill for partition of specific lands instituted under Hemingway's Code 1927 sections 3035 and 3036 (Code 1906, sections 3521, 3522), since all the allegations of cross-bill, if embraced ih original bill, would not have rendered the bill multifarious within Hemingway's Code 1927, section 373 (Code 1906, section 598).

2. PARTITION. Chancery court has jurisdiction of proceeding for partition of personalty (Hemingway's Code 1927, section 3057). Partition of personalty is a statutory proceeding of which chancery court has jurisdiction in accordance with Hemingway's Code 1927, section 3057 (Code 1906, section 3543).

3. PARTNERSHIP. Equity has original jurisdiction of settlement of partnership estate.

Equity has original jurisdiction of settlement of partnership estate and an accounting between partners.

4. ADVERSE POSSESSION. Evidence held to establish title by adverse possession in one from whom title was acquired by partnership. Evidence in suit for partition of certain lands of partnership held to establish title by adverse possession in one from whom partnership acquired title.

5. APPEAL AND ERROR. Chancellor's finding of fact cannot be disturbed, unless manifestly wrong.

Finding of fact by chancellor cannot be disturbed on appeal, unless it is manifestly wrong.

6. PARTNERSHIP. Act of single partner in subscribing to stock of corporation without special authority does not bind partnership. Act of a single partner in subscribing to stock of corporation, where ownership of such stock does not appear to be within scope of firm business, or where there is no special authority to make such subscription, does not bind the partnership.

7. PARTNERSHIP. Partnership erroneously charged with price of stock purchased by single partner, in absence of showing of special authority or relation of purchase to business. Partnership was erroneously charged with purchase price of stock purchased by single partner, in absence of showing of special authority or that such purchase was related to partnership business.

8. PARTNERSHIP. Claim of creditor was erroneously adjudicated in proceeding for partition of partnership lands and for partnership accounting and settlement.

Claim of creditor against partnership was erroneously adjudicated in proceeding for partition of certain lands belonging to partnership and for partnership accounting and settlement, regardless of fact that creditor was interested in partnership properties.

HON. HARVEY McGEHEE, Chancellor.

APPEAL from chancery court of Leflore county HON. HARVEY MCGEHEE, Chancellor.

Suit by W. S. Barry against Mrs. Cornelia Mattocks and others. From the decree, plaintiff appeals, and defendants cross-appeal. Affirmed in part, and in part reversed and remanded, with directions.

Affirmed in part, reversed in part and remanded.

Alfred Stoner, of Greenwood, for appellant.

Excess of capital advanced should be restored from the firm assets to the partner advancing, and unequal contribution is sufficient to contradict the idea of equal division of the capital.

Johnson v. Jackson, 130 Ky. 751, 17 Am. & E. Anno. Cases 699.

A party who comes into a court of equity to remove clouds from his title must not only show title but he must show it to be fair title and if it be shown that he acquired it by unfairness or fraud he will not be relieved.

Griffith's Chancery, sec. 590; Judge SHARKEY in Boyd v. Thornton, 13 S. & M. 338; Huntington v. Allen, 44 Miss. 654; Stone Gravel Co. v. Archer, 120 Miss. 453; Ham v. Ham, 146 Miss. 161, 110 So. 583.

A partnership is not bound by the act of one of its members in subscribing to stock of a corporation, where it does not appear that the ownership of the stock was within the scope of the firm business, or that he was authorized to make such subscription.

Wright Bros. v. Merchants Packet Co., 104 Miss. 507, 61 So. 550; Pearson v. Oldfield, 101 Miss. 110, 57 So. 417.

A bill uniting partnership and private demands filed by one partner, against another is fatally defective.

S. & M. Chan. 623; Gilmer v. Felhour, 45 Miss. 627; Wright v. Frank, 61 Miss. 32; Dist. Grand Lodge v. Leonard, 92 Miss. 777, 46 So. 532.

Possession of property is notice of the terms of a lease thereof.

Palmer v. Fair Co., 140 Miss. 294, 105 So. 513; Kirby v. Bank of Carrolton, 59 So. 10 (Miss.); Bolton v. Roebuck, 27 So. 630 (Miss.).

Where proceeding is brought to partite land only a cross-bill seeking to bring in personalty for partition is not germane to the original bill.

Stansel v. Hahn (Miss.), 50 So. 696; Fletcher v. Wilson, S. & M. Chan. 376; 16 Cyc. 331, 10 R. C. L. 484.

It was not permissible for appellees, after receiving the written memorandum opinion of the chancellor, holding that they had shown no title to a part of the property sued for, to then obtain an order postponing entering decree on minutes until deeds to property were obtained, and at a term of court a year later, recover on the deeds obtained after the court had announced findings.

Atkinson v. Felder, 29 So. 767, 78 Miss. 83; Duggan v. Champlin, 23 So. 178, 75 Miss. 441; Cohn v. Pearl River Lbr. Co., 80 Miss. 649, 32 So. 292; Carhart v. Aldridge (Miss.), 109 So. 700; Griffith's Chancery Practice, secs. 70, 392, 561, and 562; Brown Bros. & Co. v. Bank, 31 Miss. 454; Brooks v. Kelley, 63 Miss. 616; Griffith's Chan., sec. 413, note 25; 10 R. C. L., page 299; 60 Am. Dec. 339.

The court had no power under the statute to try any issue in vacation affecting a party without his consent.

Coopwood v. Prewitt, 30 Miss. 206; Scarbrough v. Smith, 52 Miss. 517; Wilson v. Rodewald, 61 Miss. 228; Gulf Coast Co. v. Gibbs, 124 Miss. 188, 86 So. 582, 763; Y. & M. V. R. R. Co. v. Lawler, 130 Miss. 421, 94 So. 219; J. J. Newman Lbr. Co. v. Allen Pace et al. (Miss.), 102 So. 570; Collicott v. Horn, 102 So. 850.

A party who seeks to reform a written instrument has the burden of proving mutual mistake beyond a reasonable doubt. Parol testimony to reform must be received with great caution and distrust.

Rogers v. Clayton, 115 So. 106.

Gardner, Odom & Gardner, of Greenwood, for appellee.

The essential elements which are necessary to constitute an effective adverse possession are the occupancy must be hostile, actual, open and notorious, exclusive and continuous for the statutory period.

Staton v. Henry, 130 Miss. 372, 94 So. 237; Meyer v. Sea Food Co., 136 Miss. 868, 101 So. 702.

The doctrine of equitable estoppel is applicable to the facts in this case.

Sulphine v. Dunbar, 55 Miss. 255; Staton v. Bryant, 55 Miss. 261.

A liquidating partner is trustee for the benefit of all interested parties, and that, as such trustee, he could not use his position to his advantage but must in every instance look to the interest of the partnership rather than himself.

Story on Partnership, par. 343, pp. 522-523; Story on Partnership, par. 329, pp. 506-507; The Law on Partnership, par. 149, pp. 277-279.

The personal property owned by W. S. Barry & Company was properly partited along with the land.

10 R. C. L., page 485, par. 263; Chancery Practice, par. 375, page 380; Par. 381, Griffith on Chancery Practice, pp. 386-387.

The lower court properly withheld final decree and remanded the cause to the docket for further proof.

Clark v. Clark, 1 So. 835; Donly v. Ray, 6 So. 324; Sasser v. Seavy, 34 So. 388; Kirby v. Gay, 136 Miss. 781, 101 So. 705; Beard v. Green, 51 Miss. 857; McAllister v. Rickardson, 61 So. 572; S. & M. Chan. Reports 40, p. 44; Sec. 10 of Chap. 151, Laws of 1924.

It is well settled that the theory upon which the case was tried in the court below must be strictly adhered to on appeal.

3 C. J., par. 618, pages 718-722, 623, 629; Parr v. Gibbons, 27 Miss. 375; Bowles v. Wright et al., 34 Miss. 409; Shingleur-Johnson v. Warehouse Co., 29 So. 770; Vicksburg Co. v. Joffray Co., 94 Miss. 282, 49 So. 116; Anderson v. Maxwell, 94 Miss. 138, 48 So. 227; Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; Gordon v. Park, 202 Mo. 236, 100 S.W. 621, 119 Am. St. 802.

The general rule is that upon the reformation of an instrument, the reformation dates back to the original instrument.

24 Amer. & Eng. Ency. of Law, page 667; 34 Cyc., page 999, A. & B.; 3 Pomeroy's Equity Juris, pars. 1375-1376; 3 Elliott on Contracts, sec. 2365; Lafayette County v. Hall, 70 Miss. 678; Parker v. Parker, 88 Ala. 362, 6 So. 740, 16 Am. St. Rep. 52; Smelling v. Merritt, 85 Conn. 83, 85 A. 1039; Jones v. Parker, 177 Ill.App. 155; Adm'r v. Heirs, 141 Ky. 639; Lawrence v. Clarke (S. C.), 104 S.E. 330; Banks v. McElbeny (Mich.), 198 N.W. 928.

Improvements made even on land owned by one partner, if made with partnership funds, or for the purpose of the partnership, are to be treated as the personal property of the firm.

Lane v. Tyler, 49 Me. 252; Averill v. Loucks, 6 Barb. 19; Grissom v. Moore, 55 Am. Rep. 745; Story on Partnership, par. 92; Parsons on Partnership (4 Ed.), par. 272; 30 Cyc., p. 434; 22 Amer. & Eng. Ency. of Law, 89; Whitney v. Cotton, 53 Miss. 689; 2 Bates on Partnership, page 817.

Argued orally by Alfred Stoner, for appellant, and by H. T. Odom, for appellee.

OPINION

McGowen, J.

From a decree of the chancery court, Barry, the appellant, prosecutes an appeal here, and the appellees file a cross-appeal.

The record in this case is rather voluminous, and many questions having been...