Comans v. Tapley

• Citation: 57 So. 567,101 Miss. 203
• Decision Date: 17 April 1911
• Docket Number: 14,786
• Court: United States State Supreme Court of Mississippi
• Parties: MARY ANN COMANS v. IOLA TAPLEY ET AL

57 So. 567

101 Miss. 203

MARY ANN COMANS v. IOLA TAPLEY ET AL

No. 14,786

Supreme Court of Mississippi

April 17, 1911

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL Chancellor.

Bill by Mary Ann Comans et al. against Iola Tapley et al. to revive a suit. From a decree denying relief, complainants appeal.

The facts are fully stated in the opinion of the court.

Decree affirmed.

Allen Thompson and Lamar Easterling for appellant, filed an elaborate brief too long for publication, in which they contend that this case was a pending suit; that no statutes of limitations ran against its prosecution. that the decree rendered some forty years ago in the chancery court was not a final decree but an interlocutory decree and that Appellant was not guilty of such laches as would estop them from the prosecution of this suit. Citing Repass v. Moore, 30 S.W. 458; Cock v. Gilpin, 1st Rob. (Va.) 28; Rawlings v. Rawlings, 75 Va. 76; Germania Fire Ins. Co. v. John R. Francis, 52, 465; Story Equity Pleading, 418; 19 Am. & Eng. (2 Ed.) 258; 21 Ky. L. Rep. 751; Hemphill v. McLimins, 24 Penn. St. 367; King v State Bank, 13 Ark. 269; Ballew v. Wilmont, 5 Kan. Lr. 724; Railroad v. Jenkins, 103 Ill. 588; Tucker v. Wilson, 68 Miss. 683; Mantel v Specific Min. Co., 27 Montana 473; Mill Co. v Sugg, 169, 130; Rich v. Allender, 26 S.E. 437; Rowan v. Chenoworth, 38 S.E. 544; Shelton v. Armstead, 7 Grat. 264; Bacon v. Gordon, 1 "C" 6, (Miss.) 49; Allen v. Mandaville, 4 "C" 397, Miss.; Richard v. Scott, 32 Am. D. 779; Inhabitants v. Buson, 52 Am. Dec. 618; Smith v. Cunningham, 30 So. 652; Evans v. Sprengen, 62 Am. D. 105; Bonner v. Brondon, 75 Am. D. 655; Beasly v. Howell, 117 Ala. 490, 22 So. 989; Ingerson v. Lewis, 51 Am. Dec. --; Morrison v. Harding, 81 Miss. 583, 33 So. 80; Westbrooks v. Munger, 61 Miss. 329; Taylor v. Chickasaw Co., 70 Miss. 87; Hill v. Nash, 73 Miss. 849.

Green & Green, for appellees, filed an elaborate brief too long for publication in which they contend that the original decree filed in this case was a final decree; that the statutes of limitations ran against its further prosecution and that appellants were guilty of such laches as should estop them from further prosecution of this suit. Section 3110, Code of 1906; Section 2669, Code of 1880; Section 2737, Code of 1892; Section 3097, Code of 1896; Section 3092, Code of 1906; McKinley v. Irvine, 13 Ala. 681; Cochrane v. Miller, 74 Ala. 51; Adams v. Sayre, 76 Ala. 509, 510, 517; Story v. Hawkins, 8 Dana (Ky.) 13; Mills v. Hoag, 31 Am. Dec. (N. Y.) 271; Stovall v. Banks, 10 Wall. 587; Beebe v. Russell, 19 How. U.S. 285; Coithe v. Crane, 1 Barb. Ch. 23; Younkin v. Younkin, 44 Neb. 729; Royal v. Johnston, 1 Rand. 421; Dick v. Robinson, 19 W.Va. 159; Rhodes v. Williams, 12 Nev. 20; McGowan v. Bellamy, 2 Bibb. 441; Humphreys v. Stafford, 71 Miss. 135; Cocke's Adm'r v. Gilkin, 1 Rob. 20; Peterson v. Naun, 83 N.C. 118; Magee v. Magee, 37 Miss. 138, 152; Niles v. Davis, 60 Miss. 750; Nelson v. Ratliff, 72 Miss. 656; Ralph v. Prester, 28 Miss. 744, 752; Weir v. Field, 67 Miss. 292; Street v. Smith, 85 Miss. 359; Berkson v. Coen, 71 Miss. 650; Insurance Co. v. Francis, 52 Id. 457; Myer v. Whitfield, 62 Id. 387; and Kelley v. Harrison, 69 Id., 856; Tuter v. Brown, 74 Miss. 774; Garrett v. Ellis, MS.; Westbrook v. Hawkins, 59 Miss. 499; 1 Greenlief's Evidence, (9 Ed.), sec. 45; Story's Eq. Pl., sec. 429-432, 3 Dan'l Ch. Pl. & Pr., page 1689-1694; Tell v. Donahoe, 230 Ill. 476, 82 N.E. 844; Lancaster v. Snow, 184 Ill. 534, 58 N.E. 813; Martin v. Gilleylen, 70 Miss. 324; Keel v. Jones, 93 Miss. 244; Perkins v. Swank, 43 Miss. 349; Tucker v. Wilson, 68 Miss. 693; Dickerson v. Thomas, 68 Miss. 156.

Argued orally by Allen Thompson and Lamar Easterling, for appellant, and by M. Green, for appellee.

OPINION

WHITFIELD, C.

A statement of the facts of this case is necessary to an intelligent comprehension of the opinion of the court in deciding it. The facts which we deem it essential to state are as follows:

About the year 1842, one Norman Baldwin was the owner of a residence lot in South Jackson, on which he resided with his wife, Mary Ann, until about the year 1845, when he went West on a trading expedition. Before leaving, he carried his wife and children to Holmes county, and left them in the care of her people. Baldwin never returned, but died some time later in Texas, as his wife learned. About the year 1849 Mary Ann Baldwin, his widow, married Daniel Comans. Comans was afterwards appointed administrator of the estate of Baldwin, and instituted the proceedings in the original suit, which suit is, by the present bill, sought to be revived. Baldwin and his wife had three children, Normanda, who married E. A. Smith, Mary Lavinia, who married John Byrne, and William B., who died a minor without issue. Comans, as administrator, filed a report in the probate court in 1858, exhibit A to the bill of revivor herein, in which he states that he took out letters of administration for the sole purpose of recovering the residence house and lot owned by Baldwin. On May 17, 1858, Comans filed a suit in the superior court of chancery against E. M. Avery and T. S. Tapley, the husband of Martha C. Tapley; and on December 2, 1858, an amended bill was filed, by which it seems certain new parties were introduced. The case was then transferred to the chancery court, first district, of Hinds county. The said case was submitted on bill, amended bill, answer, exhibits, and proofs, and was taken under advisement by the court, and at the May term, 1868, the court rendered a decree, which is as follows:

"This cause having been submitted on a former term, on bill, amended bill, exhibits, answers, and proofs, and the court now being sufficiently advised, and because it appearing that Norman Baldwin, deceased, in his lifetime was seized and possessed of a certain town lot in the city of Jackson, Mississippi, known at lot 13, south, and that on the 22d day of October, 1845, he borrowed from defendant Avery the sum of four hundred dollars, and executed his note for the same due 1st of April, 1846, and also a mortgage on said house and lot to secure the payment of said note, said mortgage being dated on the 22d of October, 1845; that said Baldwin went on a trading expedition to the states of Texas, Arkansas, and California, and during the time of his absence departed this life, leaving a wife, who afterwards married the plaintiff, Comans, and the children named in the bill in this cause, to-wit, Lavinia, William, and Normanda Baldwin, all of them minors, etc., represented by said Daniel Comans in said bill; that since the filing of said bill said Willie has died, and the said Lavinia has married one John Burns, and the said Normanda has married one E. A. Smith, both of said husbands having been made parties by the amended bill; that during the absence of said Norman Baldwin said defendant Avery took possession of said land and lot, rented the same, received large sums for said rent, which he has appropriated, as he claims, to the payment of said note and mortgage, and that after the death of said Norman Baldwin the said Avery sold the said house and lot at public sale without authority of law, and without having administered on his estate and obtained authority to sell the same, and without having taken any steps to foreclose said mortgage, and that at said sale one Thos. A. Isler became purchaser, also that the amount received by said Avery for rent is alleged to have been sufficient to discharge the said note and mortgage, besides what he received from said sale from Thos. A. Isler; that said Isler afterwards died, and said Avery became his administrator, and as such under order of the probate court sold said lot and house to the defendant Martha C. Tapley. And it appearing to the court that the said sales made by the said Avery were null and void, they are therefore so declared, and the court doth order and adjudge and decree that the title to said house and lot, not having been divested by said sales by said Avery, remained in the said Norman Baldwin, and at his death vested in his said widow, now the wife of plaintiff, Comans, and his three children; the said Willie having died a minor, and since the original bill was filed, his interest having descended to his two sisters. It is therefore ordered, adjudged, and decreed that the said sales made by the said Avery are null and void, that the title to said house and lot is in the said widow and children of the said Norman Baldwin, and that an account shall be taken of all moneys received by the said Avery for rent of said house and lot at any and all times, and what was a reasonable rent for the same during the time, how much was expended by him, and what was a reasonable amount to be expended in necessary repairs on said building, what sums were received by him from the sale of said house and lot, when made by him, what amount was due on said note and mortgage of said Norman Baldwin, due said Avery at the date of sale made by him of said house and lot to said Isler as stated in his answer; That George A. Smythe be appointed commissioner to take and state such account with all due and convenient speed, giving to the defendants or their solicitors of record notice of the time and place of taking said account, and that he report the same to the court; that in taking said account he may refer to the pleadings and proofs on file in this office, and call witnesses before him, and send up their testimony with his report, and all other questions are reserved until the coming in of said report."

Smythe the commissioner, took no steps toward making the account, and filed no report. It would seem that the late Judge Wharton, counsel for Comans, wrote him a...