Crenshaw-Gary Lumber Co. v. Norton

• Decision Date: 19 June 1916
• Docket Number: 18295
• Citation: 111 Miss. 720,72 So. 140
• Court: Mississippi Supreme Court
• Parties: CRENSHAW-GARY LUMBER CO. v. NORTON et al

72 So. 140

111 Miss. 720

CRENSHAW-GARY LUMBER CO. v. NORTON et al

No. 18295

Supreme Court of Mississippi

June 19, 1916

APPEAL from the chancery court of Sharkey county, HON. E. N. THOMAS Chancellor.

Suit by Crenshaw-Gary Lumber Company against W. G. Norton and others. From a decree for defendants, complainant appeals.

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

Decree reversed and remanded.

Watson & Jayne, for appellant.

Percy &amp Percy, for appellees.

OPINION

HOLDEN, J.

This is an appeal from a decree of the chancery court of Sharkey county, Miss., sustaining a demurrer to the bill of complaint, and dismissing the bill, and denying leave to complainant to file certain alleged amendments to the bill.

The original bill in this case was filed by the Crenshaw-Gary Lumber Company, a corporation, against W. G. Norton and the Richey Land, Improvement & Manufacturing Company, and the facts upon which this suit is predicated are as follows:

On the 18th day of October, 1907, the Richey Land, Improvement &amp Manufacturing Company, a corporation, leased to the Norton Lumber Company, a corporation, a certain tract of land containing fourteen acres, for a period of seven years, which lease, among other things, contained the following provisions:

"(5) It is further covenanted and agreed between said lessor and said lessee, that at the expiration of said term, the said lessee, their heirs, personal representatives or assigns shall have the option to renew said lease for the additional term of seven years, for the same rental consideration and covenant hereinabove specified.

"(6) It is further covenanted and agreed between the said lessor and the said lessee, that the said lessees, their heirs, personal representatives or assigns, shall have the option at any time during said lease, or at any time during the fourteen years, should said lease be renewed at the expiration of the present term, as hereinabove provided for, to purchase said land hereinabove described, at a price not to exceed one hundred dollars per acre."

By successive conveyances, to wit, by deed from the Norton Hardwood Company, a corporation, successor to the Norton Lumber Company, to John C. Adams, trustee, (2) by deed dated October 25, 1912, from the Norton Hardwood Company, W. G. Norton, John C. Adams, trustees, and the Bank of Commerce & Trust Company of Memphis, Tenn., to W. L. Crenshaw and F. E. Gary, and by deed dated December 14, 1912, from W. L. Crenshaw and F. E. Gary to the Crenshaw-Gary Lumber Company, a corporation, the said Crenshaw-Gary Lumber Company became vested with all rights in and to the lease hereinabove mentioned, originally vested in the Norton Lumber Company.

The lease, and the options granted thereby, having expired on the 18th day of October, 1914, W. G. Norton, by deed bearing date the blank day of October, 1914, but acknowledged the 24th day of October, 1914, acquired the fee from the Richey Land, Improvement & Manufacturing Company.

In November, 1914, the complainant, the Crenshaw-Gary Lumber Company, a corporation, filed its bill in the chancery court of Sharkey county, in which it set up the above conveyances, and alleged that the complainant "became and were and are entitled to all of the rights, equities, users, occupation, right of renewal and option of purchase provided for in said leasehold contract"; that it (the complainant) was using said leasehold as a sawmill site; and that the defendants W. G. Norton and the Richey Land, Improvement & Manufacturing Company, were aware of this fact, and also aware of the fact that the appellant "was going forward under the terms of said lease-hold contract, living up to and abiding by the same--all of which was fully known to the said W. G. Norton and the Richey Land, Improvement & Manufacturing Company."

The prayer of the bill was that the conveyance from the Richey Land Company to W. G. Norton be set aside, and that complainant be decreed to be entitled to continue to occupy and use said mill site unto the end of the fourteen-year period, with the right in complainant at any time during said period to avail of said option of purchase, or, if mistaken in the relief sought, then that W. G. Norton be decreed to make over and convey title to said mill site upon the payment of one thousand, four hundred dollars.

In other words, complainant, by its bill, sought to have the court of equity decree specific performance of the lease contract and enforce one or the other of the options granted in it, after the time named in the lease contract for the exercise of such options had expired, basing its right upon the grounds that by occupying the leased premises after the expiration of the term it had by such occupation availed itself of the option of renewal; and that defendants were charged with notice of the intent of complainant to renew the lease for the remaining seven years.

To this bill, the defendants, appellees here, filed the following demurrer:

"Now comes the defendants in the above-styled suit, namely, W. G. Norton and the Richey Land, Improvement & Manufacturing Company, and demur to the bill of complaint filed herein, and for grounds of demurrer would show:

"(1) There is no equity on the face of the bill.

"(2) That it appears from the allegations of the bill and Exhibit A, filed therewith, that complainants' right to renew the lease under paragraph 5 of Exhibit A expired with said lease, and same was not renewed before or at the time of the expiration of the said lease, and complainants had no right of renewal at the date of the filing of their bill of complaint herein.

(3) It appears from the allegations of the bill of complaint and Exhibit A filed therewith that complainant had the option at any time during the seven-year lease, or during the fourteen years if said lease had been renewed, to purchase the land described in the lease at a price not exceeding one hundred dollars an acre; that the lease was not renewed by complainants, and no offer to purchase said land made during the life of the original lease; and that no right to so purchase said land existed at the time of the filing of the bill herein.

"(4) Because it appears from the bill and the exhibits filed therewith that complainants had, at the time of the filing of the bill herein, no right either to lease or to purchase the property described in Exhibit A to the bill.

"(5) And for other grounds to be assigned at the hearing of this demurrer."

After hearing the argument of counsel the court below thereupon entered the following decree:

"This cause coming on to be heard on the demurrer filed by the defendants in the above-styled cause to the bill of complaint filed herein, and the court having heard the argument of counsel, it is ordered that the demurrer be and the same is sustained, and the complainants making application for leave to amend the bill, by consent of counsel for complainants and defendants, it is agreed that the amended bill should be submitted to the court, in order that the court might pass upon the filing of it, between now and the 20th day of February, 1915, and any decree to be rendered to be as of this term of the Sharkey county court, and by consent to be entered on the minutes as of this term."

The complainant thereafter submitted to the court a paper labeled, "Amendment to Bill of Complaint," wherein it was charged that at the time of the negotiations whereby and through which complainant's immediate vendors, W. L. Crenshaw and F. E. Gary, purchased from the Norton Hardwood Company and W. G. Norton, and others, the leasehold and the other property described in Exhibit C to the original bill of complaint, the vendors in that instrument represented to W. L. Crenshaw and F. E. Gary, as an inducement for them to purchase the said property, and they (the said W. L. Crenshaw and F. E. Gary) were led to believe, in said transaction, either by intention on the part of the vendors or by mistake on their part, that the expiration date of the first part of said contract was November 18, 1914, instead of October 18, 1914; "that the representations aforesaid with reference to the expiration of the first seven-year period of the lease expiring on November 18, 1914, were made by the said W. G. Norton to the said Crenshaw and Gary, his vendees in Exhibit C, which representations they relied on and accepted as being true and acted thereon; that the said Crenshaw and Gary in making said purchase of said W. G. Norton and the other vendors through Exhibit C were not shown and did not know of the true date of said lease Exhibit A, or of the expiration thereof, but were only shown what purported to be an abstract of the conditions of that lease or conveyance; that such also is true of these complainants in their purchase from the said Crenshaw and Gary, through Exhibit D to the original bill of complaint, it, the complainant, having only this data to go upon and having never seen the original lease, Exhibit A, and relying upon the statements aforesaid, as coming from the said W. G. Norton and through a purported abstract of the contents of said Exhibit A, made their purchase from the said Crenshaw and Gary through Exhibit D."

The bill further alleged that:

The "expiration day of said lease fell on Sunday the 18th day of October, 1914, and that the said W. G. Norton appeared in Greenville on Tuesday, the 20th day of October, 1914, to begin his scheme whereby he was to put in motion his efforts to take from complainant said mill site and said milling plant; that he had gone to Greenville, Miss., from his home in Arkansas for that purpose, evincing thereby that he had this very object and purpose in mind."

The purported amendment also alleged that Norton had begun...