Davis v. Davis

• Decision Date: 31 May 1888
• Citation: 65 Miss. 498,4 So. 554
• Court: Mississippi Supreme Court
• Parties: HUGH L. DAVIS v. WILLIAM J. DAVIS

4 So. 554

65 Miss. 498

HUGH L. DAVIS v. WILLIAM J. DAVIS

Supreme Court of Mississippi

May 31, 1888

APPEAL from the Chancery Court of Adams County, HON. WARREN COWAN Chancellor.

On the 29th of May, 1882, William J. Davis filed a bill in the Chancery Court of Adams County against Hugh L. Davis, stating that complainant and defendant, as partners in the business of farming, under the firm name of H. L. Davis & Co., bought a tract of land known as the "Duncan Homochitto" plantation, which had been paid for with the assets of the firm; but that the deed thereto had been taken by the defendant in his individual name without the consent or knowledge of the complainant. The purpose of the bill was to compel the defendant to convey to the complainant the title to a one-half interest in the land referred to. By an amendment to this bill, it was alleged "that said partnership and firm of H. L. Davis & Co., composed as aforesaid of this complainant and said defendant, was dissolved on or about the 31st day of January, A. D. 1881 and that all the debts of said partnership and firm have long since been paid."

During the pendency of the suit just adverted to, which was designated in the lower court "No. 765," the complainant therein, on the 3d of December, 1883, filed in the same court another bill against the same defendant, in a cause marked "No. 817," by which complainant sought to secure one-half of the cotton (or the proceeds of the same) due from the tenants of "Duncan Homochitto," plantation, as rent thereof. This latter bill alleged "that said defendant is demanding and collecting said rent cottons, both those already baled and those to be baled irrespective of complainant's rights and without his consent;" and "that said defendant has heretofore refused and still refuses to make any division of said rent cottons with complainant."

In connection with this bill in cause "No. 817, "the complainant therein, William J. Davis, upon affidavit made and bond given, obtained a writ of sequestration for the seizure of "the rent or case cottons due for the year 1883, for the rent or lease of the Duncan Homochitto plantation;" and under such writ the sheriff sized certain bales of cotton on the plantation mentioned.

Thereupon on the 8th of December, 1883, Hugh L. Davis, the defendant above referred to, filed his bill against William J. Davis, in the case at bar, which in the lower court was numbered "820." This last bill prayed for an injunction to compel the sheriff "to restore all said parties to said writ of sequestration as nearly as may be unto the position in which he found them, by releasing his levy on whatever cotton he may have found and seized on said Duncan Homochitto plantation, and to refrain from any further steps looking to the execution of said writ of sequestration; and more especially to enjoin and prohibit the said sheriff from allowing said W. J. Davis to bond said rent cotton or cotton seized under said writ." And it further prayed the court to "enjoin said W. J. Davis from the further prosecution of said suit 'No. 817,' or attempting any proceedings under his said bill therein; and that he do refrain from molesting or attempting to molest your orator, or the laborers or tenants on said lands in the quiet and peaceable possession of said lands, as well as from all interference in the affairs of said plantation, by suit or otherwise, until said suit 'No. 765' shall have been decided"

Hugh L. Davis, in his answer to the bill in suit "No. 765," and in his bill in case "No. 820," denied that there had ever existed a partnership in farming, as stated by William J. Davis in his two bills of complaint, or that the land in question had been bought by them as partners, or paid for by assets belonging to them as partners, and insisted that the latter had no interest in the land or the rents thereof, as claimed in his several bills.

Hugh L. Davis, the complainant, having set down case "No. 820" for hearing, on bill, answer and exhibits, William J. Davis, defendant, on the 16th of June, 1885, moved that this "cause be continued until when and after said cause No. 765 shall have been decided;" which motion was sustained by the court.

On the 8th of Nov., 1886, the chancery court rendered a final decree in case "No. 765," which required Hugh L. Davis to convey to William J. Davis an undivided one-half interest in the "Duncan Homochitto" plantation, but made no reference to the rents thereof. This decree was, upon appeal, affirmed by this court.

On the 6th of June, 1887, the defendant in the case at bar ("No. 820") made a motion for the dissolution of the injunction on bill and answer, and the ascertainment of the damages which had accrued to the defendant, on the ground that suit "No. 765" had been decided in favor of the complainant therein and defendant herein. And, accordingly, an order was made dissolving the injunction and referring the cause to a master to report the damages to which the defendant was entitled. The defendant's claim for damages, as referred to the master, was principally for rents of the plantation in controversy.

On the 10th of Nov., 1887, the complainant herein moved to modify the order dissolving the injunction and referring the ascertainment of damages to a master, on the ground that the defendant was precluded from claiming any rents in this suit because by his bill, as amended in case "No. 765," he was enabled to obtain a decree for one-half of the "Duncan Homochitto" plantation; and, the question of rents being before the court up to final decree, he failed to obtain any decree for rents, the matter having thus become res adjudicata; "or, if said rents were not in question in said cause No. 765, the demand for the place and damages to date of decree was one indivisible demand, and is res adjudicata by virtue of the decree in cause No. 765." This motion was overruled. The complainant in case "No. 765" made no demand for rents accruing...