Halliburton v. Crichton

• Citation: 147 Miss. 621,111 So. 743
• Decision Date: 14 March 1927
• Docket Number: 26309
• Court: United States State Supreme Court of Mississippi
• Parties: HALLIBURTON et al. v. CRICHTON et al. [*]

111 So. 743

147 Miss. 621

HALLIBURTON et al.
v.
CRICHTON et al. ^[*]

No. 26309

Supreme Court of Mississippi

March 14, 1927

Division B

1. EXECUTORS AND ADMINISTRATORS. Bill alleging sale by brokers was not consummated- through fault of deceased owner held1 to state cause of action against deceased's estate.

Bill against executor and heirs at law to recover damages from decedent's estate for breach of contract to sell lands of deceased held to state cause of action, in that it sufficiently alleged that sale of land was not consummated through fault and neglect of the owner after purchaser had been procured by* brokers.

2. EXECUTORS AND ADMINISTRATORS. Creditor who had properly registered claim may file bill in chancery for sale of lands of estate to pay debts (Hemingway's Code, section 1737). Under Code 1906, section 2070 (Hemingway's Code, section 1737), creditor of decedent whose claim had been properly probated and registered may file bill in chancery court for sale of lands of estate to pay debts, where there was no personal property situated within state for that purpose.

3. VENUE. Impropriety of venue appearing on face of bill must be raised by plea or special demurrer.

Where impropriety of venue appears on face of bill, question of venue must be raised by plea or special demurrer.

HON. HARVEY McGEHEE, Chancellor.

APPEAL from chancery court of Quitman county, HON. HARVEY MCGEHEE, Chancellor.

Suit by Wesley Halliburton and another against Powell Crichton as executor of the will of Minna Lombard Crichton, deceased, and others. Decree of dismissal, and complainants appeal. Reversed and remanded.

Reversed and remanded.

[147 Miss. 622] Lucy Somerville and Shands, Elmore & Causey, for appellant.

I. A broker whose commission is to be paid from the proceeds of the sale is entitled to recover such commission when the failure of the sale is due to the fault of an owner of the property. Roberts v. Kimmons, 65 Miss. 332, 3 So. 736; Shiriman et al. v. Weilberger et al., 125 Miss. 199, 87 So. 131; Kelley v. Peacock, 115 Miss. 555, 76 So. 547.

The court has held in the following cases that the broker was entitled to his commission although in each case the owner of the land endeavored to find some technicality to release him from his obligation to pay the commission. Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 810; Ferguson v. Quick, 117 Miss. 692, 78 So. 618; Cook v. Smith, 119 Miss. 375, 80 So. 777; Long v. Griffith, 113 Miss. 659, 74 So. 613; Delta Pine & Land Co. v. Wallace, 83 Miss. 656, 36 So. 263.

In these cases, however, the commission was not to be paid from the proceeds of the sale as was the agreement in the case at bar. There is one case which we are quite sure will be cited to the court by the appellees; that is, the case of Lee v. Greenwood Agency et al., reported in 123 Miss. 823, 86 So. 443.

There is one Mississippi case which seems to us to be directly in point. See Stephenson v. Morris, 69 Miss. 232, in which case Judge CAMPBELL'S opinion follows the unanimous holdings of other jurisdictions. See Realty Bonds & Finance Co. v. Port Richmond Canal & Land Co., 152 P. 434; Pederson v. Yakima & East Selah Irrigation Co., 116 P. 279; Staskey v. Smith, 268 S.W. 1057; Rabinowitz v. North Tex. Realty Co., 270 S.W. 579; Vining v. Mo-La-Oil Co., 279 S.W. 747; Singer Construction Co. v. Goldsborough, 128 A. 754; Ratzlaff v. Trainor-Desmond Co., 183 P. 269.

As set out in these cases, we submit that the right of the complainants in this case to their commission is plain; that they earned their commission is admitted by the agreement made between them and Mrs. Crichton which appears as Exhibit B to the bill of complaint. [147 Miss. 623]

II. The allegations of the bill of complaint are sufficient to charge the default of Mrs. Crichton and to require an answer by defendant's herein. Chancellor Griffith in his recent book on Mississippi Chancery Practice has stated clearly the requisites as to certainty in a bill of complaint. See section 298.

The bill in the case at bar clearly charges the default on the part of Mrs. Crichton and that as a result of her default and failure to carry out her contract these complainants have been injured to the extent of the loss of their commission. The bill clearly apprises the defendants of the nature of the claim propounded against them and it clearly apprises them of the nature and form of the relief which is asked and, therefore, we maintain meets every requirement of a bill in equity.

The rule is on a general demurrer that a bill will not be subjected to refined and technical criticism and will only be required to reveal a real and substantial cause of action. Griffith's Miss. Ch. Pr., section 291.

III. The demurrer being general the special grounds of demurrer stated are not properly before the court. Griffith, sections 290-91.

Boone & Lowrey, for appellees.

I. This suit was attempted to be filed under the provision of section 1737, Hemingway's Code, which section permits a creditor of the decedent, whose claim against the estate is registered, to file a petition "as the executor or administrator may, for the sale of the land or personal property of the decedent for the payment of debts; and the court shall hear and decide upon such petition and decree as if the application had been made by the executor or administrator." Refer to section 1735, Hemingway's Code, which provides for the sale of lands by an executor or administrator. [147 Miss. 624]

Any action begun under the provisions of either section would be for the relief of all creditors and neither of them imply in any way that one creditor may seek relief from his debt and obtain a decree for the sale of land to satisfy his indebtedness alone.

This does not purport to be an action for the benefit of creditors generally and is in effect a personal suit for the benefit of appellants. Inasmuch as this is true, we cannot see how the chancery court of any county may entertain the action as the appellants have ample and sufficient remedy in the courts of law and such suit certainly could not be maintained in the chancery court against the decedent, Mrs. Crichton, were she now alive and a resident of the state of Mississippi. Sections 489 and 1758, Hemingway's Code.

If the appellants had any right of action against the decedent, Mrs. Crichton, over which the chancery court has no jurisdiction, her executor might properly be sued in the circuit court of Coahoma county, and might be summoned to this said court as provided by this statute.

It occurs to us that the real test of the jurisdiction and venue of the chancery court of Quitman county in this cause is whether the chancery court would have jurisdiction of a like cause filed therein against a living resident of the Second Judicial District of Coahoma county, for our statutes expressly provide for the survival of such action against the executor of a decedent and also expressly provide where such action may be brought. See section 1758, Hemingway's Code, providing for the survival of actions and section 489 of the same Code fixing the venue.

We, therefore, submit that a court of equity is without jurisdiction of this cause and that although the court might hold that such cause might be entertained by the equity court, it would be necessary that the suit be filed in the county in which the will of the decedent was admitted to probate and in which the executor was qualified. [147 Miss. 625]

The amended bill itself is not definite and complete enough in its allegations to require an answer from the appellees. It is not alleged that Mrs. Crichton ever specifically agreed to furnish a merchantable title. It is obvious that at the time of the making of the contract referred to, both parties thereto, as well as the appellants, realized the possibility of a failure of title.

The bill alleges that Mrs. Crichton neglected to do the things necessary to obtain a merchantable title which she might convey to Miller, but in no way specifically alleges the thing necessary to be done by her, neither does it allege that it was possible for Mrs. Crichton to obtain a merchantable title.

II. Admitting the jurisdiction and venue and admitting that the bill is sufficiently specific in its allegation to require an answer from the appellees, have the appellants stated a cause of action which would entitle them to recover a judgment or decree against the appellees?

Taking every allegation of the bill as true and admitting the jurisdiction and venue to be proper the facts alleged could not legally support such judgment or decree. Lee v. Greenwood Agency Company et al., 123 Miss. 823, 86 So. 449, is conclusive in support of the contentions of appellees herein.

We cannot see from reading the case as reported on suggestion of error in 125 Miss. 177, where the court in any way modified its former decision, except that it allowed the broker to recover certain expenses which were shown by the correspondence between the parties to be necessary on account of an effort on the part of the broker to secure cancellation of certain leases, and it appears that the broker was specifically authorized to secure an option, cancel these leases and to incur the expenses incident thereto.

The principals stated in the Greenwood Agency Company case are fully supported in Malone v. Dillard, 102 So. 705; Clark v. Hovey, 105 N.E. 222; Coleman v. Edgar Lumber Co., [147 Miss. 626] 155 Ark. 275; Preston v. Postell, 300 F. 134.

Lucy Somerville and Shands, Elmore & Causey, in reply, for appellant.

I. As to lack of jurisdiction, the complaint of appellees is that this is properly a legal demand, and further that if the suit could be brought at all, we would have to sue on behalf of ourselves and other creditors. This question is settled by this court in Allen, Adm., v. Hillman, 69 Miss. 225.

II. As to improper venue,...