Cossar v. Grenada Oil Mill
| Decision Date | 13 April 1925 |
| Docket Number | 24853 |
| Citation | 138 Miss. 890,103 So. 509 |
| Court | Mississippi Supreme Court |
| Parties | COSSAR et al. v. GRENADA OIL MILL. [*] |
1. LIMITATION OF ACTIONS. Evidence not disclosing cause of former action held not to bring it within provisions of statute as to commencing new action for same cause as one abated, or in which judgment was reversed on appeal.
An action is not brought within the provisions of section 3116 Code of 1906 (Hemingway's Code, section 2480), which provides that, if any action commenced within the time allowed therefor is abated or the judgment thereof reversed on appeal, the plaintiff may commence a new action for the same cause within one year after the termination of the original suit, by evidence disclosing a former suit between the same parties, but not disclosing the cause of action there sued on.
2. LIMITATION OF ACTIONS. Acknowledgment of mortgagor's title to land in possession of mortgagee, or right to redeem in writing, signed by mortgagee, or person claiming through him, is only acknowledgment tolling statute of limitations.
Under section 3092, Code of 1906 (section 2456, Hemingway's Code), which provides that, when a mortgagee is in possession of the land mortgaged, after condition broken, the mortgagor and persons claiming through him may not bring suit to redeem the mortgage, but within ten years next after the time at which the mortgagee obtained possession of the land unless in the meantime an acknowledgment of the title of the mortgagor or of his right of redemption, shall have been given in writing, signed by the mortgagee, or the person claiming through him, the only acknowledgment of the mortgagor's title to the land, or right to redeem, that will toll the running of the statute, is an acknowledgment thereof in writing, signed by the mortgagee, or the person claiming through him.
HON. C L. LOMAX, Chancellor.
APPEAL from chancery court of Tallahatchie county, HON. C. L. LOMAX, Chancellor.
Suit by C. G. Cossar and others against the Grenada Oil Mill. From a decree dismissing bill, complainants appeal. Affirmed.
Affirmed.
Jas. Stone & Sons, for appellants.
I.
THE COURT ERRED IN NOT HOLDING THAT THE RUNNING OF ALL STATUTES OF LIMITATION WAS NOT STOPPED BY THE FILING OF SUIT NO. 3146 IN THE CHANCERY COURT OF THE FIRST DISTRICT OF TALLAHATCHIE COUNTY, MISSISSIPPI, ON SEPTEMBER 7, 1921. The present suit is maintainable under section 2480, Hemingway's Code, section 3116, of the Code of 1906.
Cause No. 3146, as shown by the record, was filed on the 7th day of September, 1921. The record shows that this suit was against these same defendants and was not dismissed until the trial of the case at bar. In other words, it was pending all the time. The present suit simply cut down the number of defendants, part of the property involved, and the number of sales under deeds of trust attacked. The land in both suits was on the lis pendens docket from the 7th day of September, 1921, on. The present suit was filed on the 5th day of November, 1921, less than two months after the filing of cause No. 3146 and more than one year before the dismissal of cause No. 3146. It is our contention that the dismissal of cause No. 3146 was for "a matter of form" under section 2480, Hemingway's Code. The same facts were involved in the former suit, the same deed of trust, the same trustee's sale attacked and the same land. It is true that there were other parties who were defendants to the first suit, other trustee sales were attacked, and title to other land was sought to be established. But everything involved in the present suit was involved in the former suit. Therefore the chancellor erred in dismissing the bill in the present case on the ground that it had been filed too late. Young v. Walker, 70 Miss. 813, 12 So. 542.
Where one has exercised a right to sue within the twelve month period, but has been non-suited and has within a reasonable time after non-suit commenced a second action in another court, such suit is timely. Hollingsworth v. Shonland (1924), (La.), 30 So. 613. Such seems to be the general holding almost everywhere although there is quite a conflict of authority and a good deal of vagueness on this particular point. See Hewitt v. Steele, 136 Mo. 827, 38 S.W. 82.
We call the attention of the court to the fact that the case at bar was instituted and was actually in the process of being tried when the former suit was dismissed. There is a great deal of difference as to what the second suit shall contain in order to be maintainable within a year after the dismissal of the first suit but it is generally held to be sufficient if the same subject-matter is embraced within both suits and the same result is sought to be obtained. Kenney v. Parks, 137 Cal. 527, 70 P. 556; Cox v. Strickland, 120 Ga. 104, 47 S.E. 912.
Furthermore it seems to us that there has been in existence continued litigation against defendants herein since the 7th day of September, 1921, even under the law in Mississippi. The most recent case involving just this point seems to be Hawkins, et al. v. Scottish Union & National Insurance Co. (1915), 110 Miss. 23, 69 So. 710.
II.
Even though the case at bar does not come under section 2480, of Hemingway's Code, still the institution of cause No. 3146 constituted a demand upon the appellees herein and tolled the running of all statutes of limitation, including "statute relating to possession by mortgages after condition broken." The court will note that cause No. 3146 was instituted on the 7th day of September, 1921, and process was promptly served upon the appellees. The cause here at bar was filed on the 5th day of November 1921, and cause No. 3146 was not dismissed until the trial of the case at bar. In other words, demand was made upon the appellees for this property on the 7th day of September, 1921, and the land herein involved has been on the lis pendens docket from that day to this.
III.
THE court erred in holding that the defendant, Grenada Oil Mill, was the mortgagee in possession with condition broken of the property herein involved and had been such in undisputed possession for ten years first before the filing of the original bill in this cause and before any demand made, and in finding the defendants, Grenada Oil Mills, to be the only true and lawful owners of the property herein involved, or of any part of said property.
THE court erred in finding that the equities were against the complainants and that their rights, claims and interests to the property herein involved were barred by virtue of sections 2456, Hemingway's Code, section 3092 of the Code of 1906.
THE mortgagee acquired no title to this property simply by the act of going into the possession of it and if he was going to acquire such title by adverse possession he had to hold adversely to the whole world, the trustee in the deed of trust included. If he did not hold adversely to the trustee continuously for the whole period of ten years, he could not be holding adversely to the mortgagors, appellants herein. While this point has never been decided in Mississippi it has been held that a beneficiary is barred when his trustee is and in Nelson v. Ratliff (1895), 72 Miss. 656, it was held that the statute of limitations began to run against a trustee from the time adverse possession is taken under a claim of ownership and, when he is barred, the beneficiaries he represents are barred. We think that, by implication, it is impossible to hold adversely to the beneficiary unless one holds at the same time adversely to the trustee.
Even if the appellee, Grenada Oil Mills, was a mortgagee in possession with conditions broken from September 19, 1911, with intention to claim the property herein involved adversely against all the world yet by having this property sold under the deed of trust herein involved and by attempting to purchase same at the foreclosure sale, it recognized the title then existing in the mortgagors, appellants herein, and attorned to the trustee and to the mortgagors, and at such time could not be claiming said property adversely and could not be holding said property as mortgagee in possession with condition broken. We cannot find that this point has ever been decided in Mississippi and the result of our extensive research has shown that it has been decided only a few times in the United States. We have not found a single case in which it has been decided adversely to the contentions we are here making. 2 C. J., section 142; Jones on Mortgages, section 1170; Calkins v. Isbell, 20 N.Y. 147. To the same effect are Robinson v. Fife, 3 Ohio St. 551; Johnson v. Dee Lancey, 11 Johns. (N. Y.) 365; Cutts v. York Mfg. Co., 18 Me. 140; and Jackson v. Slater, 5 Wend. (N. Y.) 295.
It is held in Mississippi that a vendee cannot hold adversely to his vendor until he gives notice of such adverse holding. Cromwell v. Craft (1872), 47 Miss. 44; Moring v. Ables (1884), 62 Miss. 263. It has also been held in this state that where, by the terms of a mortgage, the mortgagee is to take and keep possession of the mortgaged property and apply the rents, issues and profits to his debts until it is fully satisfied from that source, his possession will not become adverse, nor will the statute of limitations commence to run against the mortgagor until the debt secured by the mortgage is paid by the rents, profits, etc. Anding v. Davis (1860), 38 Miss. 574.
It is also a settled principle of law in Mississippi that a life tenant cannot hold adversely to the remaindermen without giving notice of such adverse holding. The effect of the purchase of the life tenancy by a claimant who is holding the whole title adversely throws an interesting light on the question in the case at bar. Harvey v. Briggs (1...
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