Dibert v. Durham
| Decision Date | 21 January 1918 |
| Docket Number | 19889 |
| Citation | 77 So. 311,116 Miss. 469 |
| Court | Mississippi Supreme Court |
| Parties | DIBERT v. DURHAM |
APPEAL from the chancery court of Pearl River county, HON. D. M RUSSEL, chancellor.
Bill by D. D. Durham against Mrs. Eva C. Butterworth Dibert. From a decree overruling demurrers to the bill, defendant appeals.
Appellee was complainant in the court below, and appellant, Mrs Dibert, a nonresident of Mississippi and a resident of New Orleans, La., was the real defendant in interest. The bill seeks to enjoin an execution of a judgment held by Mrs Dibert against appellee in the sum of approximately three thousand six hundred dollars. A temporary injunction was granted, and the nonresident defendant appeared and filed a general demurrer to the bill. The demurrer was overruled, and an appeal granted to settle the law of the case. The bill charges that appellee leased some pine timber for turpentine purposes from the White Cedar Pile & Pole Company, a corporation of Louisiana; that this nonresident corporation acted by and through its secretary and general manager, John Dibert, the husband of the defendant, Mrs. Eva C. Dibert that John Dibert was the owner of practically all, if not all, of the capital stock of the corporation; that the consideration for the turpentine lease was evidenced and paid by certain promissory notes executed by appellee, Durham, to his own order, one note for one thousand dollars due sixty days after February 17, 1912, its true date, the other for three thousand dollars, payable October 15, 1913, both bearing interest at six per cent. interest per annum; that after the execution and delivery of the said notes they became the individual property of John Dibert; and that John Dibert died leaving appellant, his widow, as his sole heir at law and as the sole owner of said notes. The contract between Durham and the White Cedar Pile & Pole Company, Limited, is evidenced by writing made an exhibit to the bill. It was executed February 17, 1912, in the city of New Orleans, and the notes given for the consideration were likewise dated and executed at New Orleans, La., and made payable in that state. The contract for the corporation was signed by John Dibert as secretary, and his authority to execute the lease is not questioned. The contract describes the timber leased, and contains certain provisions or alleged warranties upon which the complainant in this suit bases a claim for damages. It is provided that Durham shall have the turpentine privileges of section 8, township 3 south, range 16 west, for two turpentine seasons from the date of the contract, and that, if the lessor or any one at its instance entered upon said section for the purpose of cutting the timber thereon, only one forty acres at a time shall be cut, and that no entry shall be made upon any other portion of section 8 until said forty acres are entirely cut; that, if "any person having the right to cut the timber" enters upon the land for the purpose of cutting the said timber, he shall do so "under the restrictions above set forth, and when necessary or such person to enter upon said land under said restrictions, D. D. Durham shall receive three and one-half cents per cup for all cups that he shall be deprived of in the use of section 8 during two turpentine seasons from the date of this act." There is a similar provision in reference to section 17 upon which Durham is given the turpentine privileges for three years with the guaranty that, if the lessor enters upon section 17 for the purpose of cutting timber, he shall do so "after the close of the second turpentine season," and if an entry is made prior to the close of the second turpentine season, "they shall reimburse D. D. Durham at the rate of two cents per cup for such land in section 17 of which he may be deprived of the use of." The total consideration of five thousand dollars was one thousand dollars cash and the balance by the two promissory notes mentioned. The bill and exhibits show that John Dibert died some time in the years 1912, and that a judgment by division D, civil district court of New Orleans, rendered July 12, 1912, by Porter Parker, Judge, placed "Mrs. Eva C. Butterworth, widow of John Dibert," in possession as sole owner of all the property and effects, movable and immovable, of John Dibert, deceased, including the notes given for said turpentine lease. After the rendition of this decree, and on November 19, 1912, Mrs. Dibert, as the sole owner of said notes, exhibited her bill in the chancery court of Pearl River county to recover a judgment upon the notes and to enforce a vendor's lien upon the turpentine lease and rights granted the defendant, Durham. To this bill of complaint Durham made no defense, and a decree pro confesso and final decree based thereon were taken against the defendant. After the filing of this bill by Mrs. Dibert, Durham paid one thousand dollars, the amount of the first note, and entered into some kind of an arrangement with the complainant whereby he executed a bond in lieu of a receiver and was permitted to proceed with the working of his turpentine orchards and to remove the products. The condition of this bond was that, if the court should adjudge the defendant indebted to Mrs. Dibert upon the second note for three thousand dollars, Durham would then pay the said...
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