Bates v. Strickland

• Decision Date: 23 February 1925
• Docket Number: 24483
• Court: Mississippi Supreme Court
• Parties: BATES v. STRICKLAND et al. [*]

103 So. 432

139 Miss. 636

BATES v. STRICKLAND et al. ^[*]

No. 24483

Supreme Court of Mississippi

February 23, 1925

Division B

Suggestion of Error Overruled April 20, 1925.

APPEAL from chancery court of Marshall county HON. J. G. MCGOWEN, Chancellor.

Suit by Mrs. Belle Strickland Bates against Miss Perle Strickland and others. From a decree for defendants, plaintiff appeals. Affirmed.

Affirmed.

C. L. Bates and Creekmore & Creekmore, for appellants.

The chancery court erred in not holding that the judgment of this court of March 21, 1921, affirming the decree of the chancery court of May 10, 1920, overruling the demurrers of defendants (appellees) to complainant's (appellant's) original bill, was and is res adjudicata and final and conclusive between the parties to this cause, and a final decision of all issues of law and fact involved in the cause, and that the title of complainant (appellant) to the land sued for and to all the relief sought by her were thereby fully and finally declared, established and settled.

The defendants (appellees) by their demurrers confessed and conclusively admitted all the facts alleged in complainant's bill of complaint, and the chancery court overruled said demurrers by decree entered May 10, 1920, from which defendants prosecuted an appeal, and on March 21, 1921, this court affirmed said decree and remanded the cause with leave to the defendants to answer the bill, and on June 6, 1921, they filed an elaborate answer to the bill; but upon the final hearing of the cause in the chancery court upon bill, answer, proofs and the mandate of this court, the proofs, which were all documentary being judicial records, wholly and utterly failed to establish a single material fact alleged by defendants in their answer, and likewise wholly failed to disprove to impeach a single averment of complainant's bill; and said decree of affirmance rendered by this court, is res adjudicata as to the whole cause and all questions of both fact and law involved therein, and is a bar to any dispute of the facts alleged in complainant's bill and to any further consideration of the law applicable to or bearing on the case, and complainant's bill and the facts therein alleged have been by said decree of affirmance judicially established, and both the chancery court and this court are bound thereby; and the decree appealed from in the present appeal should be reversed and judgment entered in this court in favor of appellant in accordance with the averments and prayer of her bill. Smith v. Elder, 14 Smed. & M. 100; Bridgeforth v. Gray, 10 George, 136; McDonald v. Greene, 9 S. & M. 138, 141; Stewart v. Stebbins, 1 George, 66; Murdock v. Gaskill, 8 Baxter (Tenn.) 22; Jameson v. McCoy, 10 Heiskell (Tenn). 109-122; McNairy v. Mayor and City Council, 2 Baxter (Tenn.) 251-265; Bissell v. Spring Valley Township, 124 U.S. 225, 233, 234.

The bill of complaint in this case, seeking to establish title to land, remove cloud from title and obtain possession, is based almost wholly upon judicial record, and recorded instruments, all of them more than forty years old.

Complainant set out her title in great detail, and in conformity to statute (sec. 551, Code 1906) deraigns her title to her grandfather, Doctor Thompson, the common source, and in like manner anticipates the pretended title of defendants and shows it to be invalid and void. The execution, proof and record of the testator's will are alleged, pleaded according to their legal effect and referred to on the record for greater certainty. Defendants all demurred to the bill.

Upon this second appeal the facts of this case now stand established of record without any material change or addition of new facts, precisely as they stood before this court on March 21, 1921, when it rendered judgment affirming the decree of the chancery court overruling defendants' demurrers, and the doctrine of res adjudicata is clearly applicable.

When the same point has been once adjudged between the same parties, in the same case, and upon the same statement of facts, the adjudication is binding, not only on the inferior court, but upon the appellate court also. Smith v. Elder, 14 S. & M. 100, 105.

Whatever is necessarily settled or determined by the supreme court, in deciding upon the propriety of the judgment of the court below, in settling the principles to govern the case in any further proceedings necessary to be taken in it, is res adjudicata, and final and conclusive, in that or any subsequent case. Stewart v. Stebbins, 1 George, 66.

A decree sustaining or overruling a demurrer affirmed by the supreme court on appeal, is final as to the points adjudicated in the particular case, and may be relied on as res adjudicata. Murdock v. Gaskill, 8 Baxter (Tenn.) 22-26. If judgments of affirmance on appeals from chancery decrees on demurrer can be disregarded on a second appeal, then the practice serves only as a means of delay and confusion and the statute authorizing it is of no practical utility.

The chancery court erred in its opinion in not holding and declaring that the testator in his will did not devise to nor vest the title to said lands in his executors, but wholly withdrew the same from their administration and control, and set apart the most valuable part thereof as a permanent home for his children; and likewise erred in not holding that said chancery sale had no connection with the administration and settlement of the testator's estate, nor with the division of the property, or its proceeds amongst his children; and likewise erred in not holding that the present pretended claim of an equitable conversion has been set up by strangers for the purpose of defeating the will of the testator and depriving his descendants of said property.

The second codicil to the testator's will does not create any trust in said land, nor vest the title thereto in the executors, nor grant unto them the power to sell it, nor charge them with any duty respecting it; but on the contrary said codicil wholly and expressly withdraws said lands from the management, control and administration of the executors and inhibits them from interfering in any manner with the control and disposition of said property. Thomson v. Strickland, 52 Miss. 574; Cohea v. Jameson, 68 Miss. 510, 517; Eenberg v. Carter, 98 Mo. 647, 14 Am. St. Rep. 664.

The chancery court erred in its opinion in holding that the will of Doctor James M. Thomson effectuated and produced an equitable conversion of said land into personal property, to-wit, into money.

The second codicil to the testator's will is a devise in fee to his children of the lands involved in this suit, and upon his death the lands vested in fee in the devisees as tenants in common share and share alike; and the direction of the testator that when his youngest child should become of age the land should be "sold to the highest bidder of the children then living" was intended by the testator (1) to secure an equal division in value thereof among his children, and (2) to vest the whole title of said property in one of his children and to secure to that one the residence and the Compere tract and to continue in his family the ownership, use and occupation of the family residence and home and appurtenant property. Thomson v. Strickland, 52 Miss. 576, 580; In Re Rudy's Estate, 185 Pa. St. 359, 39 A. 968, 64 Am. St. Rep. 654.

It is absolutely clear from the will of the testator that his intention was that his entire estate, personal and real, should be divided in kind equally among his children. That intention is made manifest by the execution of two codicils, revoking and annulling his original will in all points where a sale of property has been directed.

But the question raised by this assignment of error was, as above shown, settled and forever foreclosed by this court in Thomson v. Strickland, 52 Miss., supra, where the court had before it and considered and applied the testator's will and especially the second codicil, and held that upon his death said land vested in fee in the devisees as tenants in common; and that decision is a rule of property, and is binding on appellants and the whole world besides. Lombard v. Lombard, 57 Miss. 171; Becker v. Columbia Bank, 112 Miss. 819, 73 So. 798; Webb v. Mobile & Ohio R. R. Co., 105 Miss. 175, 62 So. 168; Forest Product & Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 269; Jackson v. Chew, 12 Wheaton (U.S.) 153; Holstead v. Butler, 140 U.S. 273, 276, 277.

The testator did not in the second codicil direct that said land should be sold and thereby converted into money, nor direct the distribution of the proceeds of any such sale, nor designate any beneficiaries of the proceeds of any such sale, nor did the testator in said codicil indicate any intention to convert said land into money or any other form of personal property and distribute the proceeds; and there was, therefore, no equitable conversion of said property. Bennette v. Gallahan, 115 Tenn. 568, 92 S.W. 66, citing Bedford v. Bedford, 110 Tenn. 204, 75 S.W. 1017; Wayne v. Fonts, 108 Tenn. 145, 65 S.W. 471; Wheeless v. Wheeless, 92 Tenn. 296, 21 S.W. 595; Read v. Williams, 125 N.Y. 560, 26 N.E. 730, 21 Am. St. 748; Painter v. Painter, 220 Pa. St. 82, 69 A. 323, 20 L. R. A. (N. S.) 117; In Re Rudy's Estate, 185 Pa. St. 359, 39 A. 968, 64 Am. St. Rep. 654.

From these authorities it is clear that in the instant case, there is in the second codicil not a single element of equitable conversion. The chancery court erred in its opinion in holding that the sale of said land by the chancery court under the ninth paragraph of its decree of August 10, 1877 and its decree of confirmation of August 13, 1880, was an execution of the will of Thomson, and a "carrying out...