Gray v. Bryson

• Decision Date: 08 January 1906
• Court: Mississippi Supreme Court
• Parties: ANN V. GRAY v. JOHN C. BRYSON ET AL

39 So. 694

87 Miss. 304

ANN V. GRAY v. JOHN C. BRYSON ET AL

Supreme Court of Mississippi

January 8, 1906

FROM the chancery court of Warren county, HON. WILLIAM P. S VENTRESS, Chancellor.

Mrs Gray, the appellant, was complainant in the court below, and Bryson and others, appellees, were defendants there. From a decree dismissing the bill complainant appealed to the supreme court.

In August, 1902, the appellant, Ann V. Gray, an illiterate woman, ignorant of business transactions, contracted with Charles J. Thornton by which he agreed to build three houses at $ 400 each, for her on lots owned by her. Thornton agreed to advance her the necessary sum and to pay certain of her indebtedness, making the total amount $ 1,600, for which appellant executed a note secured by a deed of trust on the lots; the trust deed providing that insurance, in the sum of not less than $ 1,000, should be taken out on the houses and made payable to John C. Bryson, trustee. A short time afterwards appellant decided to build only two houses, and by agreement the contract touching the erection of the houses was changed accordingly, but the notes and deed of trust remained as originally given. About the time of the execution of the trust deed, Thornton agreed in writing with appellant (which writing was subsequently lost) to release one of the lots from the deed of trust upon payment to him of $ 500. Appellant and her witnesses claim that the lot so agreed to be released was the homestead lot, but this Thornton denies. The two houses were afterwards burned, and $ 495 realized on the insurance policy was paid to Bryson, trustee. Appellant then tendered Thornton the sum necessary to increase the insurance money paid to Bryson to $ 500, and which she claimed entitled her to have her homestead released from the deed of trust, at the same time demanding that Thornton should release her homestead, but this Thornton refused to do.

In December, 1903, on account of nonpayment of annual interest Bryson, the trustee, advertised the whole of the property for sale. The appellant thereupon filed her bill in this case alleging the facts above stated and a failure on the part of Thornton to perform his contract in a workmanlike manner, and the bill concluded with the following prayer: "The premises considered, complainant prays that a writ of injunction do issue from this honorable court, temporarily enjoining the said Thornton and Bryson, trustee, from doing any further act or to proceed in any way further under the powers conferred by the terms and provisions of said deed of trust; and that the said Thornton and Bryson, trustee, be made party defendants to this bill of complaint; and that a summons be directed to the sheriff of Warren county, commanding said Thornton and Bryson, trustee, to be and appear by the next term of this honorable court, to be held at the courthouse in the city of Vicksburg, on the first Monday in February, 1904, and that they be required to make a full and direct answer to this bill of complaint; and that upon the final hearing hereof an accounting may be ordered to ascertain the true and correct amount due the said Thornton on said indebtedness; and that by decree of this court the lot constituting the homestead of your complainant may be released from the operation of the terms, conditions, and provisions of said deed of trust; and that this court will order your complainant to pay only such reasonable and just sum of money as may be found to be legally and justly due the said Thornton, which amount she is willing and holds herself in readiness to pay; and that the said Thornton and the said Bryson, trustee, or any succeeding trustee in his place, may be forever and perpetually enjoined and restrained from selling, or in any way attempting to sell, the homestead of complainant, or any other part or portion of her said land, except to pay the reasonable and just amount rightfully and legally due, as the same may be ascertained and found to be due by an accounting ordered and had under the direction of this honorable court; and, if complainant be mistaken in the relief prayed for herein, she prays that she may have such other and further relief in the premises as equity may require and to your honor may seem meet and just."

Thornton's answer to said bill denied most of the allegations of the bill, and, although not made a cross-bill, concluded with the following prayer: "And this defendant, now having answered all the allegations and averments set forth and charged in the said bill of complaint to which he is advised it is material for him to make answer, prays that the injunction against him and the said Bryson, issued in said cause, restraining them from selling the property mentioned and described in the said bill of complaint, be dissolved, and for a decree authorizing and directing the sale of said land to pay the said indebtedness in accordance with the terms and provisions of said deed of trust, and that he be hence dismissed with reasonable costs and damages in this behalf incurred."

Reversed...