Hudson v. Moon

• Decision Date: 28 January 1999
• Docket Number: No. 97-CA-01059-SCT.,97-CA-01059-SCT.
• Citation: 732 So.2d 927
• Parties: Clyde N. HUDSON, Jr., Marie Hudson Hill, Betty Jane Campbell and Edna Osborne Walker v. Robert M. MOON, Alonzon D. Welch, Woody Loden, Johnny Gilmore and Graydon Farrow, As Directors of the Mississippi Christian Foundation and the Mississippi Christian Foundation, A Mississippi Non-Profit Corporation.
• Court: Mississippi Supreme Court

732 So.2d 927

Clyde N. HUDSON, Jr., Marie Hudson Hill, Betty Jane Campbell and Edna Osborne Walker v. Robert M. MOON, Alonzon D. Welch, Woody Loden, Johnny Gilmore and Graydon Farrow, As Directors of the Mississippi Christian Foundation and the Mississippi Christian Foundation, A Mississippi Non-Profit Corporation.

No. 97-CA-01059-SCT.

Supreme Court of Mississippi.

January 28, 1999.

Rehearing Denied April 15, 1999.

Joel P. Walker, Hernando, Attorney for Appellants.

R. Steven Coleman, W.D. Coleman, Patricia Almon Hancock, Jackson, Attorneys for Appellees.

BEFORE SULLIVAN, P.J., BANKS and JAMES L. ROBERTS, Jr., JJ.

BANKS, Justice, for the Court:

¶ 1. Appellants raise three issues for our consideration: (1) whether § 270 of the Mississippi Constitution and Miss.Code Ann. § 91-5-31 grant in them, the heirs at law of the testator, a vested interest in land subject to compulsory divesture by sale by a proscribed beneficiary institution; (2) whether this Court can consider the question of constitutionality, and if so, was mortmain in Mississippi, now repealed, unconstitutional; and (3) whether the estate proceeding is res judicata on the present application of mortmain. We conclude that the heirs had a vested right in the land and that res judicata was applicable. It follows that consideration of the constitutional issue is unnecessary. Accordingly, we reverse the judgment of the trial court.

I.

¶ 2. Myrtle H. Mulkey died on January 29, 1983, having as her only heirs at law three nieces, Marie Hudson Hill, Betty Jane Hudson Campbell, Edna Osborn Walker and one nephew, Clyde N. Hudson. Mrs. Mulkey's Will, dated January 29, 1982, was admitted to probate in the Chancery Court of DeSoto County. The Final Decree Closing Estate and Discharging Executor was issued on November 2, 1984. Under the will, the heirs at law each received monetary gifts in the amount of $5,000. Mrs. Mulkey's will devised to the Mississippi Christian Foundation ("MCF"), in trust, 30 acres of land in DeSoto County, Mississippi. Mulkey and her husband had previously conveyed 20 acres to MCF. There was also a residual cash bequest to Mississippi Christian Foundation in the amount of $463,168.74. MCF was delivered the land via Executor's Deed on November 8, 1984.

¶ 3. The final decree closing Mulkey's estate determined MCF to be a proscribed institution within the meaning of Miss. Code Ann. § 91-5-31, the mortmain statute.¹ The will contained a clause directing that "no part of the fifty acres be sold." The Chancery Court, construing the will in order that no bequest would fail, determined that MCF was, nevertheless, empowered to sell any part or all of the land bequeathed to them in trust. The final decree further adjudged that conveyances by MCF within ten years would render the statute of mortmain inapplicable to said land.

¶ 4. On November 18, 1988, MCF conveyed 0.01 acres to the Mississippi Highway Commission. There was no other disposal or sale of the property by MCF.

¶ 5. In 1987, Section 270 in Article 14 of the Mississippi Constitution, the underlying constitutional provision to the mortmain statute, was amended to read as follows:

[A]ny land devised.... to any charitable, religious, educational, or civil institution may be legally owned, and further may be held by the devisee for a period of not longer than ten (10) years after such devise becomes effective as a fee simple or possessory interest....

¶ 6. The pertinent language added to section 270 was "becomes effective as a fee simple or possessory interest." Before amendment, there was no mention of the devise becoming effective as a fee simple or possessory interest. Miss.Code Ann. § 91-5-31 was amended to conform to Section 270 of the Constitution, as amended, effective May 3, 1988. In 1992, Section 270 was repealed. Section 91-5-31 was subsequently repealed, effective from and after its passage on March 10, 1993, with no mention of a savings clause.

¶ 7. On March 22, 1993, the heirs at law filed their initial pleading in a suit to Cancel Clouds on Title and To Quiet and Confirm Title to Land, to Cancel Bequest of Funds and Other Matters in the Chancery Court of DeSoto County. Appellants based their claim on the mortmain statute. A trial on the merits was held on May 16, 1995 and the trial court, after taking it under advisement, ruled in April 1997.

¶ 8. The trial court found that when mortmain was abolished on December 8, 1992, appellants' interest in the property was contingent, inchoate, executory, and unmatured, and extinguished by the repeal of Section 270. The trial court further determined that the recital of mortmain in the final decree closing out the estate did not have res judicata effect to the case that was presently before the chancery court, and that the charitable trust created by Mulkey had not failed. The trial court dismissed the complaint of the heirs at law, with prejudice, confirming fee simple title and the cash bequest in MCF's Directors as Trustees in Trust for MCF. Aggrieved by the trial court's ruling denying them any ownership of land, the heirs now appeal to this Court.

II.

¶ 9. The heirs at law assert that Section 270 of the Mississippi Constitution and Miss.Code Ann. § 91-5-31 granted them a vested interest in 30 (thirty) acres of land which was subject to divesture by sale by MCF within 10(ten) years of Mrs. Mulkey's death. They argue that MCF, as a proscribed institution under the mortmain statute, lost the right to sell or use the property when it failed to dispose of the property within ten years of Mrs. Mulkey's death. The appellants further contend that the 1987 and 1988 amendments to § 270 of the Constitution and § 91-5-31 of the Mississippi Code and that the repeal of both the constitutional and statutory provisions concerning mortmain had no affect on their rights because property rights vested in them could not be affected by subsequent repeal of § 270 and § 91-5-31.

a.

¶ 10. This Court has continuously followed the rule that statutes will be construed to have a prospective operation only, unless a contrary intention is manifested by the clearest and most positive expression. Anderson v. Jackson Mun. Airport Auth., 419 So.2d 1010, 1026 (Miss. 1982). If the statute is unconditionally repealed without a savings clause in favor of pending suits, all pending proceedings thereunder are terminated. Beatty v. State, 627 So.2d 355, 357 (Miss.1993). A statute will not be construed to be retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is. Anderson v. Jackson Municipal Airport Auth., 419 So.2d at 1027.

¶ 11. Based on Mississippi College v. May, 235 Miss. 200, 222, 108 So.2d 703, 710 (1959), under mortmain, the heirs at law in the present case did have a vested remainder, subject to defeasance by MCF exercising its power of disposition. Under general principles of property law, the character of an estate as vested or contingent does not depend upon the defeasibility or indefeasibility of the right of possession, and if there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. Hays v. Cole, 221 Miss. 459, 471, 73 So.2d 258, 263 (1954). A vested remainder may be determinable upon the happening of a contingency, in which case it is said to be vested, subject to being divested upon the happening of a contingency subsequent, and this will not affect its vested character, for a remainder is none the less vested because it is liable to be divested or destroyed. Id.

¶ 12. The ten-year mortmain period began to run from the date of the testator's death. See Johnson v. Board of Trustees, 492 So.2d 269 (Miss.1986)

. Following this rule, the ten years in which MCF had to dispose of the property began on January 29, 1983, the date Mrs. Mulkey died. The question then arises what affect, if any, do subsequent changes to mortmain have.

¶ 13. Although the effect of rights under mortmain after repeal of § 270 and § 91-5-31 has not been specifically addressed by this Court, the Court has considered the effect of repealed statutes on certain rights. Many decisions in this state have affirmed the rule that the effect of a repealing statute is to abrogate the repealed statute as completely as if it had never been passed, and that a statute modifying a previous statute has the same effect as though the statute had all the while previously existed in the same language as that contained in the modified statute, unless the repealing or modifying statute contains a savings clause. Stone v. Independent Linen Serv. Co., 212 Miss. 580, 586-87, 55 So.2d 165, 168 (1951). The result of this rule is that every right or remedy created solely by the repealed or modified statute disappears or falls with the repealed or modified statute, unless carried to a final judgment before the repeal or modification, save that no such repeal or modification shall be permitted to impair the obligation of a contract or abrogate a vested right. Id.

¶ 14. It is evident that the legislature intended the repeal of § 91-5-31 to be effective as of its date of passage in that there is no savings clause included. At that time, the heirs had a vested right in the land, which could not be stripped from them by the repeal of mortmain. Upon expiration of the ten year period, land not disposed of by MCF was to revert automatically to the heirs of Mulkey. Not only did the heirs have a right already vested in the remainder at the time of repeal of the mortmain, the ten year period had expired. Because the heirs' rights vested before repeal of mortmain, they maintained rights in the land not disposed of by MCF.

b.

¶ 15. MCF asserts that the heirs' claim to the land is barred by the equitable doctrine of waiver and estoppel based on a Legal Voucher, Receipt, Waiver, and Joinder that each of the heirs signed in May,...