Evans v. Hoye

Decision Date11 March 1912
Docket Number15,213
Citation57 So. 805,101 Miss. 244
CourtMississippi Supreme Court
PartiesHENRY EVANS AND R. A. BLACKBURN v. H. W. HOYE ET AL

APPEAL from the chancery court of Newton county, HON. SAM WHITMAN JR., Chancellor.

Suit by Henry Evans et al. against H. W. Hoye et al. From a decree dissolving a temporary injunction and dismissing the bill complainants appeal.

The appellants, Evans and Blackburn, filed a bill in the chancery court, alleging that Evans had entered into a parol agreement with appellee, Hoye, by which it was agreed that Hoye should convey to Evans a certain tract of land for the sum of eight hundred dollars, to be paid within three years; that immediately Evans began to make improvements upon the place and had expended the sum of seven hundred and forty dollars thereon, which money was expended in good faith; that at the end of the third year--that is, in 1909--Evans demanded of Hoye a deed to the place, which was declined. The bill averred that Evans had bought supplies from Hoye during the years 1907, 1908, and 1909, but had never been able to get a settlement of his account; that, not being able to get the deed to the property when demanded, he had entered into a written contract with Hoye on December 16, 1909, whereby it was agreed that he should pay Hoye one hundred dollars rent for the year 1910, and upon the payment of the further sum of one thousand dollars Hoye was to deed him the place; that in the fall of 1910 Evans paid Hoye one hundred dollars rent and all of the account for supplies for the year 1910, and took his receipt therefor; that thereupon Hoye advised Evans that he held a deed of trust against him for two hundred and ninety-three dollars, secured by certain live stock and agricultural products, in which deed of trust one Powe was trustee. Evans denied that he had executed any such instrument, and that he owed Hoye anything. The bill further alleged that Evans had become indebted to R. D. Cooper for the sum of one hundred dollars, and had secured same by deed of trust on two bales of cotton from the first gathered and marketed in the year 1910; that, however, the first two bales of cotton were sold and the proceeds applied to the payment of one hundred dollars rent to Hoye, and the next two bales of cotton were sold and the proceeds applied to the payment of the supply account for 1910; that the fifth and sixth bales of cotton were sold and delivered to R. A. Blackburn (also complainant in this suit) in settlement of the Cooper note, which had been assigned to Blackburn; that thereafter the trustee, Powe, seized these last-mentioned bales of cotton by virtue of a writ of replevin, claiming the right to this cotton because of the deed of trust alleged to have been given by Evans to Hoye, which deed of trust was dated subsequent to the date of the filing of the Cooper deed of trust. The bill further alleged that the deed of trust held by Hoye was not executed bona fide, but, if it did exist, was obtained by fraud. The bill denies any indebtedness, and prays that an injunction issue to prevent the trustee and the justice of the peace before whom the replevin suit had been brought from proceeding further, and prays for an accounting with said Hoye, and for judgment against him for the improvements. Upon this bill a preliminary injunction was granted.

The appellee answered, denying most of the averments of the bill and made his answer a cross-bill. Affidavits were taken by each party, and on motion of the appellee the chancellor dissolved the injunction, denied the appellants relief dismissed the bill, and granted an appeal to the supreme court. In support of the motion to dissolve, the defendants set up three causes: (1) Because the bill of complaint shows on its face that complainant is not entitled to the relief prayed for, there being no equity in the bill. (2) Because the bill seeks to enjoin proceedings in a court of law pending before a justice of the peace for cotton alleged to be the property of Blackburn by virtue of a deed of trust executed by Evans in favor of Cooper on the first two bales of cotton raised by Evans in the year 1910, while the bill shows on its face that the cotton in controversy was not the first two bales. (3) Because the bill shows that Evans was a tenant of Hoye during 1910, and Hoye had a prior lien upon all products grown on the premises during said year and for supplies furnished by said Hoye.

Reversed and remanded.

R. D. Cooper, for appellants.

The motion of appellees to dissolve the injunction states first that the bill has no equity and that appellants are not entitled to any relief. To this we will answer, that the bill charges that the execution of the deed of trust to Hoye was not of his making, and that if obtained at all, from Evans it was through fraud and deceit. Prays for the cancellation of same; denies owing Hoye anything at all. Prays for an accounting between the two. Prays for the improvements on the land described in the bill. Avers that Hoye has no lien on this cotton by virtue of the alleged deed of trust or as landlord. That the Cooper deed of trust is prior in date and of filing to that of Hoye's. Prays for an injunction and for general relief, etc. There are several grounds for equitable relief. Section 160 of the state constitution gives the chancery court jurisdiction and also 161. "Mutual accounts" followed by section 556, Code 1906, on mutual accounts. Section 609, Code 1906 gives authority to the chancery court to stay proceedings in a court of law. Certainly the chancery court has jurisdiction of the subject-matter.

It was stated by the chancellor that the charge of "obtaining of the deed of trust was through fraud and deceit, if obtained at all," is not full enough, that the fraud and deceit should be more elaborate. To this I think the charge that Evans did not execute the deed of trust, and if obtained at all it was through fraud and deceit, is full enough. It would be fraud on me to obtain my signature to an instrument of writing without my consent or knowledge and that is what was meant by the expression in the bill. It really charges a forgery, but then in the alternative states that if obtained at all it was through fraud and deceit. I do not know how else to express it. If he was able to state specifically how his signature was obtained, then it would no longer be fraud, because he would have knowledge how it took place. The bill being sworn to is equal to a plea of non est factum in a court of law, and placing the burden on appellee, Hoye, to show its genuineness. In answer to the second ground in appellee's motion; it states that appellants are undertaking to enjoin the proceedings in the justice court and claiming the cotton involved by virtue of a deed of trust executed by Evans to R. D. Cooper, when the bill admits that these two bales are not the two covered by the Cooper deed of trust, etc.

The bill charges that the Cooper deed of trust is prior in date and filing for record to the alleged deed of trust of H. W. Hoye, but counsel for appellees hold that the Cooper deed of trust does not hold these two bales of cotton because they constitute the fifth and sixth bales and the Cooper deed of trust calls for the first two bales gathered and put on the market. But my contention is that if some other person other than Hoye or some third party claimed this cotton by virtue of a deed of trust that there might be some merit in counsel's contention.

But the bill charges that Hoye got the first two bales or the proceeds of the cotton, which Cooper held a deed of trust against prior in date of filing for record. It further charged that Hoye had been paid the one hundred dollars rent for the use of the place for the year 1910, and that the supply account with Hoye had also been paid, and the exhibits to appellee, Hoye's answer admits this fact. So Hoye having received the cotton of Cooper and his rent note and the supply account having been paid, he, Hoye, is not in a position to...

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8 cases
  • Tillotson v. Anders, 89-IA-00013
    • United States
    • United States State Supreme Court of Mississippi
    • August 16, 1989
    ...jurisdiction over suits for accounting. See Dunagin v. First National Bank, 118 Miss. 809, 80 So. 276 (1919); Evans v. Hoye, 101 Miss. 244, 252-53, 57 So. 805, 806 (1912); see also Miss. Const. Art. 6, Sec. 159(f) (1890) (jurisdiction over all cases of which the chancery court had jurisdict......
  • Canal Bank & Trust Co. v. Brewer
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    • United States State Supreme Court of Mississippi
    • June 6, 1927
    ...Miss. 562; Ann. Cas. 1915B 520; Citizens Bank of Belzoni v. Harpeth Nat'l Bank, 120 Miss. 505; McKenzie v. McCrory, 88 Miss. 86; Evans v. Hay, 101 Miss. 244; Alcorn Saddler, 66 Miss. 221; Madison County v. Paxton, 56 Miss. 679; Hill on Injunctions, 93; Walker, Chancery, 90; Coleman v. Hudsp......
  • Paepcke-Leicht Lumber Co. v. Savage
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  • Canal Bank & Trust Co. v. Brewer
    • United States
    • United States State Supreme Court of Mississippi
    • June 6, 1927
    ...562; Ann. Cas. 1915B 520; Citizens Bank of Belzoni v. Harpeth Nat'l Bank, 120 Miss. 505; McKenzie v. McCrory, 88 Miss. 86; Evans v. Ray, 101 Miss. 244; Alcorn v. Saddler, 66 Miss. 221; Madison County v. Paxton, 56 Miss. 679; Hill on Injunctions, 93; Walker, Chancery, 90; Coleman v. Hudspeth......
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