Hamblet v. Harrison

• Decision Date: 24 March 1902
• Citation: 31 So. 580,80 Miss. 118
• Court: Mississippi Supreme Court
• Parties: ADDIE HAMBLET v. MARY J. HARRISON ET AL

31 So. 580

80 Miss. 118

ADDIE HAMBLET v. MARY J. HARRISON ET AL

Supreme Court of Mississippi

March 24, 1902

FROM the chancery court of Quitman county. HON. A. McC. KIMBROUGH Chancellor.

Mrs Harrison, appellee, was complainant in the court below; Mrs Hamblet, appellant, was defendant there. From a decree in complainant's favor defendant appealed to the supreme court.

This suit was instituted by Mrs. Harrison and her children complainants in the court below, against Mrs. Hamblet, defendant, to recover of her certain lands described in the bill, and for the cancellation of her claim to the same. The lands had been conveyed to Mrs. Hamblet by her husband, F. M. Hamblet, since deceased. The lands were owned by appellees, and were sold to the state of Mississippi in March, 1883, for the taxes for the year 1882. The state subsequently conveyed to one Alexander, who, in turn, conveyed to Crawford. At the time of the sale Mrs. Harrison was more than twenty-one years of age; the other appellees were minors. In 1890 Hamblet, an attorney, was employed by the appellees to institute proceedings for the cancellation of the tax title or the redemption of the interest of those entitled to redeem the land. Crawford was in possession of the land at that time, and Hamblet instituted against him an ejectment suit, and, as alleged in the bill of complaint, advised his clients that he had begun a suit in chancery for the cancellation of the tax titles, or for the redemption of the land. Judgment was entered in the ejectment suit in favor of the plaintiffs for the recovery of the lands, but the land was charged with a lien for the sum of $ 200 in favor of the defendant on account of permanent improvements. Within three months after the rendition of the judgment in the ejectment suit, Hamblet procured an execution to be issued against the land involved in the suit, in order to make the above mentioned sum of $ 200 for the defendant, and at the sale under this execution, Hamblet procured the land to be bid in in the name of one L. Marks for the sum of $ 500. Marks was not present at the sale, and knew nothing of the fact that the land had been bought in his name, until afterwards when told by Hamblet. The judgment for $ 200 in favor of Crawford had been assigned by him to Marks. No money was ever paid out by Marks on this land purchased in his name. Hamblet paid the sum of $ 200 on account of the judgment, which had been assigned to Marks. The remaining $ 300 of the bid Hamblet retained until a later date, which he finally paid to plaintiffs, after deducting out of this amount his fee for services. Hamblet afterward procured from Marks a conveyance of the title that had been taken in his name at the execution sale. Hamblet afterward married the appellant in this case, and conveyed the lands to her, and shortly afterward died. In 1898 the appellees in this case filed their bill in this cause against Mrs. Hamblet, setting forth in their bill all the facts above stated, and alleging specifically that each of the acts done by the said Hamblet, from the beginning of his correspondence with Mrs. Harrison up to and including the conveyance to his wife, was fraudulent and void; that each of the said acts had been undertaken and carried out for the express purpose of defrauding the complainants out of the lands in controversy. The defendant answered the bill, and denied all the allegations contained in it. Proof was taken on both sides, and substantially the above facts were adduced.

On final hearing complainants were granted the relief prayed for, and from the decree to that effect this appeal was prosecuted.

Case affirmed and remanded.

P. H. Lowrey, for appellant.

The deeds from the state to Alexander, from Alexander to Crawford, and from Crawford to Marks, were excluded, but for what reason I am at a loss to see. While Marks, at the time of his sale to Hamblet, had another claim to the land through an execution sale, which is assailed by complainants as fraudulent and void, and which was probably derived from a common source with complainants, which I do not admit, yet if he had a title from a different source on which he could have recovered, he and those claiming under him, the appellant, may stand upon that title, and defeat the suit of complainants to remove the other as a cloud on their title. Griffin v. Sheffield, 38 Miss. 359; Wade v. Thompson, 52 Miss. 367.

A most revolting case of fraud and breach of trust on Hamblet's part is alleged, but not proven. The testimony of the complainant, Mrs. Harrison, is the only evidence tending to establish fraud, and she does not make out her case.

There is nothing in the evidence to show that this execution sale was at the instance of Hamblet.

The witness Marks testifies that Hamblet came to him with a request that he, Hamblet, be allowed to bid the land in at the execution sale in his, Marks, name, for the benefit of himself. This was probably such a breach of trust to his clients as would have defeated his title, if the objection had been promptly made by the clients. It certainly would have warranted the clients in taking the land at his bid, but they cannot concur in the sale, and receive and use the money, and then recover the land. If this bill sought to hold the attorney as trustee, and the purchase by him for their benefit, it could not be done now for three reasons: 1. Complainants have waited an unreasonable time. 2. They received from Hamblet and used the money. 3. The land has passed into the hands of a third party for valuable consideration without notice.

The correspondence exhibited with Mrs. Harrison's deposition shows that she, who was acting for all the defendants, knew, before she received the money, that her attorney had purchased the land, and at what price, and she made his good bargain a reason for paying him only a small fee. We ask that the decree be reversed because no fraud on the part of Hamblet is proven. Because if such fraud had been proven, it could not effect his innocent assign for value without notice. Because complainants, both adults and minors, are estopped by the receipt and use of the purchase money and their long delay. Because, independent of all these questions, defendant holds through F. M. Hamblet, through Marks, through Crawford, through Alexander, through the State, a tax title, which is unassailed in the evidence, the judgment in the ejectment suit not effecting this title, which at the time of the suit was held by Marks, who was not a party to the suit.

If this court should not agree with us in this, we ask that at least the complainants, before they dispossess the defendant, be required to reimburse her the $ 500 paid out to them and for them in the recovery of the land from Crawford, together with interest--that this be made a charge on the land. This is asked by the cross-bill, and would be no more than doing equity. The land having been conveyed by F. M. Hamblet to the defendant, and the right to recover back whatever he paid out for and to them being an equity running with the land, we can see no reason for their recovering the land without at least reimbursing her to this extent.

M. E. Denton, on the same side.

If F M. Hamblet wrongfully bought the land of his...