Hogue v. Armstrong

• Decision Date: 16 February 1931
• Docket Number: 29138
• Citation: 159 Miss. 875,132 So. 446
• Court: Mississippi Supreme Court
• Parties: HOGUE v. ARMSTRONG

132 So. 446

159 Miss. 875

HOGUE v. ARMSTRONG

No. 29138

Supreme Court of Mississippi

February 16, 1931

Division A

APPEAL from chancery court of Adams county, HON. R. W. CUTRER Chancellor.

Suit by W. B. Hogue against George W. Armstrong, wherein defendant filed a cross-bill. From a decree dismissing the original bill and sustaining the cross-bill in part, complainant appeals. Affirmed in part, and in part reversed and remanded.

Affirmed in part; reversed and remanded as to partition.

Engle &amp Laub, of Natchez, for appellant.

Where a deed is executed under the mistaken idea derived from counsel that the grantor has a less interest in land than she conveys she may avoid it.

Hoy. v. Hoy, 93 Miss. 732, 40 So. 903, 136 A. S. R. 546; Ala. & V. R. Co. v. Jones, 73 Miss. 110, 55 A. S. R. 488, 19 So. 105.

Equity will grant relief where the parties went into a contract under a mutual mistake in a material fact and without which mistake the contract would not have been made.

Nabours v. Coche, 24 Miss. 14; Powell v. Plant, 23 So. 404-5; 9 C. J., page 1166, Section 17 on Mistake of Fact; 12 C. J. 350-351, sections 48, 49 and 50; Newell v. Fisher, 11 S. & M. 431, 437.

A sale should not be decreed in partition unless the petition alleges, or the proof shows the land cannot be partited in kind.

Cox v. Kyle, 75 Miss. 667, 23 So. 518; Tindall v. Tindall, 3 So. 581; Smith v. Stansel, 93 Miss. 69, 46 So. 538; Shorter v. Lesser, 98 Miss. 706, 54 So. 155; Hilbun v. Hilbun, 134 Miss. 235, 98 So. 993.

L. T. Kennedy, of Natchez, for appellee.

Equity will not relieve where a party mistakes the law as to his private legal rights.

Smith v. Meuse, 103 So. 356; Brown v. Wesson, 74 So. 831.

It is necessary for relief in equity against mistakes that the same be mutual.

Jones v. Metzer, 96 So. 161; Virginia Trust Co. v. Cato, 99 So. 261.

An honest belief of both parties that a claim is doubtful, makes it a proper subject of compromise, even if there is a certain defense to it.

Smith v. Farra, 20 L. R. A. 115.

A party, however, instead of appealing to the courts for redress, is always at liberty to compromise and settle matters in dispute. When such a settlement is clearly ascertained to have been fairly made, the courts will not disturb it, no matter how plain and indisputable the right to redress originally may have been.

Morgan v. Hodges, 15 L. R. A. 438; Pearce v. New Orleans Building Co., 9 La. 397; Galusha v. Sherman, 47 L. R. A., 417; Annotation to Armido v. Henry, 25 L. R. A. (N. S.) 275.

OPINION

McGowen, J.

Hogue, appellant, exhibited his bill in the chancery court of Adams county, Mississippi, against appellee, Armstrong, seeking cancellation of a deed on the ground that the deed was executed by appellant to appellee, each to the other, for a one-half interest in three thousand acres of land in Adams county, by mutual mistake. Armstrong, answering the bill, denied the allegations of the bill as to mutual mistake, and filed a cross-bill seeking, among other things, a partition of the land in controversy, which cross-bill did not allege that the lands were incapable of division in kind.

On hearing the proof, the chancellor dismissed the original bill, and sustained the cross-bill to the extent that he ordered a sale of the lands for partition and a division of the proceeds thereof between the parties.

The three thousand acres involved in this controversy is a towhead north of Glascock's Island in the Mississippi river.

The bill of complaint alleged that the deed sought to be canceled was executed a few days after Armstrong had filed a bill against Hogue, alleging that this towhead was in the state of Louisiana, and asserting that title thereto was in Armstrong. The deed executed was a joint deed, wherein Armstrong conveyed a one-half interest in the towhead to Hogue, and Hogue a one-half interest therein to Armstrong, describing the towhead as being in Mississippi.

It is unnecessary for us to set forth here all the facts of the case.

The gravamen of the bill was that there had been a mistake of fact--a mutual mistake of fact--by the parties at the time of the execution of the deed, which deed was a compromise between the parties, executed by them after Armstrong had filed his bill against Hogue seeking to recover the lands in controversy. After the deed had been executed, Armstrong dismissed his bill, and Kennedy, his lawyer, was invested with a half interest in Armstrong's interest in the land; and very soon thereafter Hogue and Armstrong entered into a contract for Hogue to cut the timber, by which contract and by the cutting of the timber, Hogue paid Armstrong and Kennedy in excess of seven thousand dollars. This also was sought to be recovered in the bill filed by the appellant.

At the time of the settlement it is clear that the issue made by the bill was whether or not the lands were in Louisiana or in Mississippi. The original bill of Armstrong prayed that the court order a survey to establish the line, as permitted by the statute. Armstrong contended that the towhead was not an accretion to, and part of, Briars Plantation, owned by Hogue, abutting the river in Adams county, Mississippi, and that by virtue of certain deeds which he had obtained--set forth in his bill--he was the owner of this particular towhead, and asserted that the lands were in Concordia parish, Louisiana.

The evidence of the complainant, Hogue, as alleged in his bill, tends to show that the lands were in Mississippi. However, we express no opinion as to the result of the evidence on this line, deeming it unnecessary. The evidence further shows that in eight or ten days after Armstrong filed his bill, Hogue sought a compromise and advised Kennedy, the attorney for Armstrong, to that effect. Armstrong was a nonresident of this state, and upon being informed of the offer of compromise, came to Mississippi, and in the office of Kennedy, his attorney, executed the deed sought to be canceled. There were present at the conference Armstrong, attended by his attorney, Kennedy, and Hogue, accompanied by his attorneys, Judge DALE of Louisiana, and Judge MARTIN of Mississippi.

There is not a scintilla of evidence in this record that Hogue was not fully informed both as to the law and the facts. It is true that Hogue testified that Kennedy deceived him, but he points to no statement of Kennedy's that sustained any false statement of fact beyond the bare allegation of Armstrong's bill that the towhead was either an accretion to Glascock's Island, in Concordia parish, Louisiana, or it was a part of the island which had been submerged by the waters of the river and which had reappeared. On the other hand, Hogue contended that the lands were accretions to Briars Plantation, owned by him, and were in Mississippi.

When the parties made the compromise settlement, the real question of fact to be ascertained was the true boundary line...