Gambrell Lumber Co. v. Saratoga Lumber Co.

• Citation: 40 So. 485,87 Miss. 773
• Court: Mississippi Supreme Court
• Decision Date: 16 April 1906
• Parties: GAMBRELL LUMBER COMPANY v. SARATOGA LUMBER COMPANY

40 So. 485

87 Miss. 773

GAMBRELL LUMBER COMPANY v. SARATOGA LUMBER COMPANY

Supreme Court of Mississippi

April 16, 1906

FROM the chancery court of Rankin county, HON. JAMES L. MCCASKILL Chancellor.

The Saratoga Lumber Company, the appellee, a corporation, was the complainant in the court below; the Gambrell Lumber Company also a corporation, the appellant, was defendant there. The defendant, although duly summoned, failed to appear in the court below. A decree pro confesso was taken against it, and a final decree, predicated thereof, was rendered in complainant's favor, from which the defendant appealed to the supreme court. The facts touching the contents of the bill of complaint are stated in the opinion of the court.

Decree reversed, decree pro confesso vacated and cause remanded.

Green &amp Green, for appellant.

Point One.--The exhibit, being the basis of the right of the confirmation of the title of complainant, controls the averments of the pleader of conclusions in conflict with them.

Let it be noted that the appellee invokes the doctrine of common source of title, thereby coming within the requirement of the statute, and that in the deraignment from the common source it is shown that the owner made a deed of trust, and that is the keystone to the complainant's title. That instrument is made an exhibit to and a part of the bill. Consider McNeill v. Lee, 79 Miss. 459 (S.C., 30 So. 821), wherein the court most properly held: "The bill alleges that there had been no default when the sale was made, but the deed of conveyance by Willis to Lee is made an exhibit to the bill, and it recites that default had occurred in the payment of the debt; and the rule is settled here that where the statute makes an exbit a part of the bill, and it is contradictory to some allegation of the bill, the fact will be taken as stated in the exhibit. House v. Gumble, 78 Miss 259 (S.C., 29 So. 71)."

In House v. Gumble, supra, this court said, when speaking along a similar line: "And when an exhibit made a part of the bill by the statute is contradicted by some averment of the bill, the fact will be taken in conformity with the exhibit. The exhibit, especially when it is a copy of the record, is to be taken as true rather than a contradictory averment in the pleading relating to the same fact. Williamson v White, 101 Ga. 276; Deposit Co. v. Lackey, 149 Ind. 10; Frieberg v. Magale, 70 Tex. 116."

The title, the right of the complainant, is placed in it under and by virtue of the terms of the several exhibits that are made part of the bill in this cause, and the rights that the complainant have under and by virtue of the same arose thereunder and are to be governed thereby.

Now, consider the terms of the deed of trust whereunder the right of complainant is derived and whereunder the title that is sought to be confirmed arose. The deed of trust, the foundation stone of the title of the appellee, set out that "this deed of trust is given subject to a certain recorded deed of trust on same property in favor of the Gambrell Lumber Company." This is the language of the exhibit, the foundation of the title of the appellee. But this is not all. Consider the terms of exhibit "B," voluntarily made a portion of the case and whereon the appellee relies to recover. This is the so-called resignation of Kent, trustee. It is in these significant words: "Having executed a deed of trust made by Mrs. Julia Randall to the J. D. Gambrell Lumber Company, and being trustee (in) a certain deed of trust made by Mrs. Randall in favor of the Saratoga Lumber Company, which is recorded in deed book UU, pp. 106, 107, in the office of the chancery clerk of Scott county, Mississippi, I hereby refuse to execute the trust created by the last-mentioned deed of trust."

Note the words, "Having executed a deed of trust made by Mrs. Julia Randall to the J. D. Gambrell Lumber Company, . . . I hereby refuse to execute the trust created by the last-mentioned deed of trust."

As appellee claims in and under exhibit "A," it must claim in accordance with the terms thereof. There rests upon it an estoppel to deny the force and virtue of the exhibit; it is a part of its chain of title. The venerable maxim that no man can blow hot and cold at the same time is here applicable, or, as put by Broom's Legal Max. (7th ed.), 168, "Allegans contraria non est audiens."

This fundamental principle begins in this state with Wailes v. Cooper, 24 Miss. 208, wherein the holding is most accurately stated in the syllabus: "It is an established rule that if the title deeds under which a purchaser derives title to land recite an incumbrance, he will be bound by the recital, and presumed to have notice of it, whether he has read the recital or not. Held, that the law will not permit him to deny notice by insisting that he has not read the deed," and will hold that he took subject thereto.

Enunciating the same rule, see Davis v. Bowmar, 55 Miss. 674, wherein it was declared: "The recitals, assumptions, and stipulations of a written contract, in any suit upon that contract, operate as an estoppel upon the parties to it." See, also, to the same effect: Stewart v. Mathews, 66 Miss. 23 (S.C., 5 So. 387); Deason v. Tylor, 53 Miss. 697; Gordon v. Sizer, 33 Miss. 805.

Point Two.--The execution of the power was void, as shown by the exhibits to the bill.

The deed of trust, the refusal of Kent to act as substituted trustee, the appointment of McIntosh as substituted trustee, are all annexed to the record, and, under the averments of the bill, each and all of them constitute essential steps in the chain of title of the appellee from Julia Randall.

As shown supra, the exhibits themselves control and govern when made a part of the bill, and the legal effect of them will be given to the transaction regardless of the averments of the pleader as to the same.

The law as to the execution of the power is set forth in Sharpley v. Plant, 79 Miss. 190 (S.C., 28 So. 799), wherein this court held: "Strictissimi is the rule in the execution of powers by a trustee under conveyance to him in trust. A grantor in such an instrument may clog its execution with any and all difficulties and prerequisites to sale which his imagination may conjure up, and they all become vitally essential to a valid sale. There must be a strict adherence, not only to the substance of the power, but also to all formalities required in its execution by the instrument. If this be by deed, nothing but a deed will execute the power. So, if the deed is to be sealed, the general rule is strictly adhered to--that powers can be executed only in the mode and at the time and upon the conditions prescribed in the instrument creating the power of trust. Perry on Trusts, sec. 511 (b)." In reference to the appointment of substituted trustees, Mr. Perry says: "Where it is necessary to act under the powers thus given in the instrument of trust, it is of the utmost consequence that there should be an exact compliance with the power and authority as given. If there is any irregularity as to the persons by whom the new appointment is made or as to the manner in which it is made, the new trustee will be incapable of exercising any legal authority over the trust property, and will be a trustee only de son tort if he interfere, and any purchaser of the trust property may find his title utterly worthless." Perry on Trusts, sec. 288; Learned v. Mathews, 40 Miss. 220; Brame & A. Dig., 820. The conditions attached by the donor of a power must be complied with strictly, however unessential they may seem. 18 Am. & Eng. Ency. Law, 837, and notes.

McIntosh Brothers, for appellee.

The first point argued by counsel for appellant is that "the exhibit, being the basis of the right of confirmation of the title of complainant, controls the averments of the pleader."

The principle here announced is sound law and is abundantly supported by authorities cited in the appellant's brief, and if the averment of the bill and exhibits, taken together and properly construed, charge what counsel for appellant in their brief claim they do, their construction is right, for they claim that the bill and exhibits in this case charge:

First--That...