Ford v. Smith

• Decision Date: 09 November 1931
• Docket Number: 29541
• Citation: 137 So. 482,162 Miss. 138
• Court: Mississippi Supreme Court
• Parties: FORD et al. v. SMITH et al

137 So. 482

162 Miss. 138

FORD et al. v. SMITH et al

No. 29541

Supreme Court of Mississippi

November 9, 1931

Division B

Suggestion Of Error Overruled December 7, 1931.

APPEAL from chancery court of Humphreys county HON. J. L. WILLIAMS Chancellor.

Suit by Mary Coats Ford and others against Lem Smith and others. Decree pro confesso was taken against all the defendants except the defendant I. Levy, and the bill was dismissed as to him. From a decree dismissing the bill as to the defendant I. Levy, complainants appeal. Reversed, and cause remanded in accordance with opinion.

Reversed and remanded.

Ruth Campbell and Campbell & Campbell, all of Yazoo City, for appellants.

I. Levy mortgagee of some of the cotenants cannot acquire tax title and set same up against mortgagors who are cotenants of complainants on account of his fiduciary relationship.

Chiles v. Gallagher, 67 Miss. 421 and 422; Martin v. Swofford, 59 Miss. 331; Moore v. Tillman, 45, Ill. 370; McLaughlin v. Green, 48 Miss. 209.

Thus where a testator devises subject to the payment of an annuity to a third person, and will provides that the annuity shall be a lien on the land devised an action against the devisees or his personal representative to enforce payment of the annuity as a personal obligation, which does not seek to enforce the lien on the land is governed by ordinary statute of limitations applying to an ordinary action upon an implied contract, and therefore the plaintiff is entitled to recover such installments of the annuity as are not barred by the statute.

2 R. C. L. 23.

Wise & Bridgforth, of Yazoo City, for appellees.

There was an inchoate right to an equitable lien by the cotenant (out of possession) against the (other) cotenant for the use of the land, but the lien of the deed of trust was prior and superior to this lien.

Pennington v. Purcell, 145 Miss. 543, 111 So. 577; 7 R. C. L. 836.

Crops grown upon the common estate by one tenant in common of the land vest in and become the property of the occupying tenant, in the absence of agreement or statute to the contrary. The other cotenants have no property therein.

38 Cyc. 65, note 67.

The will expressly made her annuity a charge upon the lands, but provides no right of distraint for its collection and does not make the legacy a rent charge, therefore the annuitant is relegated to procedure against the lands to collect it, and has no interest in the crops.

2 R. C. L., pages 3 and 6; 3. C. J. 215.

The mortgage is a mere security for a debt and imposes no duty upon the mortgagee to protect the interests of the mortgagor, unless there is some special covenant creating such a duty.

Cornell v. Woodruff, 77 N.Y. 203, 206; Moore v. Boagni, 35 So. 716; 19 R. C. L. 397-398, note 16 L. R. A. (N. S.) 121.

A tax deed may be void as to a part of the lands conveyed thereby and yet valid as to other parts.

Nelson v. Abernathy, 74 Miss. 164, 21 So. 150; Lewis v. Vicksburg Ry. Co., 67 Miss. 82, 6 So. 773; Hewes v. Seal, 80 Miss. 437, 32 So. 55.

If the deeds of trust be treated as warranty deeds to the trustees, the doctrine of after acquired title applies, and the interest acquired by Kate Smith in 1926 was conveyed by the instruments.

Mississippi Sawmill Co. v. Douglas, 107 Miss. 678, 65 So. 885; Kaiser v. Earhart, 64 Miss. 492, 1 So. 635; Fletcher v. Wilson, Sm. & M. (Miss.) Chy. 376.

If by virtue of the fact that only an interest in a described tract is purported to be conveyed by the several deeds of trust, the instruments be treated as quit-claim deed to the trustee, then her after-acquired title in 1926 passed to Levy's trustee in the several deeds of trust.

Code 1930, section 2125; Bramlett v. Roberts, 68 Miss. 325, 10 So. 56; Martin v. Raleigh State Bank, 146 Miss. 1, 111 So. 448; McInnis v. Pickett, 65 Miss. 364.

OPINION

Ethridge, P. J.

The complainants, Mary Coats Ford and others, filed a bill against the defendants, Lem Smith, I. Levy, and others, setting up that one John Smith formerly owned certain lands involved in the subject-matter of the suit, and that he made a last will and testament in which he devised his lands to his wife for life, and, after her death, to seven of his children for their natural lives, and to the children of the several children named in the will in fee, reserving and making an annuity of one hundred dollars a year in favor of one of the children, who, by the terms of the will, was to take no other interest than the annuity of one hundred dollars per annum during her lifetime. The will also provided that no partition of the real estate should be made during the life of any of the children named.

This will, in full, reads as follows: "I, John Smith of the county of Yazoo and state of Mississippi do hereby make and publish my last will and testament intending thereby to dispose of all worldly estate of which I shall be possessed at the time of my decease.

"1. I direct that all my just debts, including my funeral expenses be paid by my executor.

"2. I give and bequeath to my beloved wife, Catherine, all my personal property, including debts and choses in action, that shall survive me.

"3. I give to my said wife all my real estate for the term of her natural life, and after her death to my children named as follows: Rhody, Annie, Bettie, Peggy, Ike, Harvey and Adam, for the term of their natural lives, each to have an equal interest therein, and upon their deaths, or the deaths of either or any of them, his, her or their share or interest shall go to his, her, or their heirs in fee simple, and in default of heirs such interest or interests shall revert to my estate and descend to my right heirs in fee simple.

"4. If any of my children named in article 3, shall die before me without issue living at my death, their life interest devised in article 3, shall go to my children already named surviving me and they are to have a life estate therein, and upon their deaths the said interest shall descend as is provided in article 3. But if my said children dying before me shall leave issue living at my death, such issue shall take the share of their parent in fee simple.

"5. It is my desire that no partition of my real estate shall be made during the lives of any of my children hereinbefore named.

"6. I bequeath to my daughter Kittie, one hundred dollars a year for her life, and direct said sum to be paid to her on the first day of March each year, and such annuity shall be a charge upon all my real estate, but is not to be payable in any year when by reason of an overflow, or any other cause, the income of said estate does not exceed the actual expenses incurred in cultivating the same. If my said daughter Kittie should die during any year before the time of payment of said annuity, the said annuity shall not be due and payable for that year or any portion of it. My said daughter Kittie is to have nothing from my estate except this annuity, and when the word heirs is used herein, 'as my heirs' or 'my right heirs,' the said words are not meant to include the children of my daughter Kitty, or their descendants, but they are expressly excluded.

"I hereby appoint my wife, Catherine, the executor of this my last will and direct that as such she shall not be required to give bond.

"In witness whereof I have hereunto set my hand this 12th day of April, 1883.

his

JOHN X SMITH

mark

"Signed by the said testator, John Smith, as and for his last will and testament, in the presence of us who at his request in his sight and presence and in the presence of each other, have subscribed our names as attesting witnesses.

"R. A. PARKER.

"J. C. DEETS."

The will was duly probated on the 3d day of November, 1883.

The wife of John Smith died subsequent to the probation of the will, and a partition of the possession of the lands was made in 1894 between the children of John Smith, deceased. The bill in the partition proceeding is not before us, but the report of the commissioners making the division and the decree of the court is in the record. Under this report of the commissioners, and the decree confirming it, the gin, the store and dwelling, the offices and church, and the grounds in connection therewith, and a common right of way to the back side of the place were set aside in common. The commissioners then set aside to William Jones lots 6, 8, and D, according to a map, with a right of way fifteen feet in width off the west end of lot 9; to Ann Bass they allotted lots 7, 9, and E, as per description and map; and then set aside to Ike Smith, Adam Smith, Henry Smith, Peggy Jones, and Bettie Hall the remainder of the lands in severalty. To Harry Smith they allotted lots I and A; to Peggy Jones lots 2 and B; to Adam Smith lots 3 and C; to Bettie Hall lots 4 and G; to Ike Smith lots 5 and F, together with a right of way fifteen feet in width off the west end of lot G, as per description.

Ike Smith during his lifetime was married three times, and there were children by each marriage. He died in 1913, and his wife by the last marriage and her children were living upon the property set aside by this decree to Ike Smith. About 1919 they began dealing with the defendant I. Levy, who furnished them supplies and took deeds of trust during different years upon the property set apart to Ike Smith. The deeds of trust were signed by the wife, Kate Smith, and some of the children of Ike Smith. About the first day of March, 1919, a lease was executed by Kate Smith, the widow of Ike Smith, to the defendant I. Levy, leasing her undivided interest in the John Smith estate, Ike Smith having been one of the heirs to said property which is known as the Mount Zion...