Humphreys v. Stafford

Citation13 So. 865,71 Miss. 135
CourtUnited States State Supreme Court of Mississippi
Decision Date30 October 1893
PartiesD. GEO. HUMPHREYS v. J. H. STAFFORD

FROM the chancery court of Bolivar county, HON. W. R. TRIGG Chancellor.

The case is fully stated in the opinion.

Decree affirmed.

Mayes &amp Harris, for appellant.

The supplementary petition to which the plea of res adjudicata is directed is in the very case in which the decree was rendered. There had been no final decree. Hope v Hurt, 59 Miss. 174. There is no technical res adjudicata, and nothing is shown to create an equitable estoppel. No one was prejudiced by the failure sooner to call attention to the lien on the land. There had been no distribution. No one had parted with any securities or changed his status on the faith of the supposed non-existence of such a lien, and matters in suit could not be disarranged by its recognition. Appellant has not slept on his rights more than the others concerned. The receiver has been in possession for thirteen years, and no distribution has been made so far as the record shows.

The creditor might, either assert his lien, or receive his distributive share of the moneys of the estate. No law however, required him to elect between these remedies. It does not appear that the question of lien was considered or adjudicated in the decree.

Charles Scott and Woods & Woods, for appellees.

The decree of November 8, 1880, fixed the rights of the creditors of Tobin & Co., giving the preference to two, and leaving all the others on the same footing. It directed a sale of the land for the purpose of paying debts. Nothing remained except for the receiver to report and be discharged. The claim here asserted is res adjudicata. If petitioner was dissatisfied, he should have appealed or filed a bill of review. Griffin v. Railroad Co., 102 N.Y. 452; Thomas v. Phillips, 4 Smed. & M., 358; Agnew v. McElroy, 10 Ib., 552; Burford v. Kersey, 48 Miss. 642; Gaines v. Kennedy, 53 Ib., 103; Cocke v. Simmons, 57 Ib., 183; Swan v. Smith, 58 Ib., 875.

OPINION

COOPER, J.

In the year 1879 a mercantile firm, composed of John P. Tobin, J. D Ziegler and R. M. Wilson, and doing business under the firm name of John P. Tobin & Co., was dissolved by the death of one of its members, and, within the course of a few weeks, the other members also died.

At the time of the dissolution, the firm owned a considerable stock of merchandise and some real estate, and it held many open accounts and promissory notes, and was heavily involved in debt. The members had individual property, and were individually indebted. Among the liabilities of the firm was a debt due to Brooks, Neely & Co., which was secured by deeds of trust upon real estate and some of the personalty of the firm. Judgments had been recovered and enrolled against the firm by Keep, Raymond & Co., and by Cyrus Bussy & Co.

In December, 1889, Sarah A. Wilson, suing in her own behalf and in behalf of such other creditors of the firm of John P. Tobin & Co. as might become parties thereto, exhibited her bill in the chancery court of Bolivar county, praying for the administration and distribution of the assets of said firm, and for the appointment of a receiver therefor. The bill states that since the death of the members of the firm of Tobin & Co., the trustee in the deeds executed to secure the debts of Brooks, Neely & Co had collected and shipped to said firm large quantities of cotton, covered by said deeds, and that probably the entire debt had been discharged from the proceeds thereof; that it was not desired to interfere. with the execution of said trust-deeds, but that it would be necessary for said trustee and the firm of Brooks, Neely & Co. to account for the property received by them, for which reason only they were made defendants to the bill.

On the filing of the bill, an order of publication was made requiring all creditors of the firm of Tobin & Co. to appear before the master, and establish their demands, and a receiver was appointed to take charge of the entire assets of said firm. In compliance with this order, many creditors of the firm appeared and presented their demands. Indeed, so far as the record discloses, all creditors so appeared. The master made his report to the court, showing the names of the creditors who had propounded their claims, and the sums and character of the respective claims. Certain exceptions were filed to this report, and, among them, one by the appellant, based upon the refusal of the master to allow the claim he had presented for its full amount. The exception of appellant was sustained, and thereupon the master made a supplemental and amended report. Upon the original and amended reports, the court then proceeded to make a decree, which, in effect, directed the receiver to pay, in the order of their priority, the judgments in favor of Keep, Raymond & Co., and of Cyrus Bussy & Co., which were declared preference claims; then to pay in equal proportion all other of the proved and allowed claims, setting off against any of such claims any amounts appearing on the books of Tobin & Co. as charges, and, in case of any controversy as to the validity of such offsets arising, to make no payment to such party until the adjustment thereof could be made. It was further ordered that certain claims propounded by W. and R. M. Wilson should not be paid until all other claims allowed should be first paid. This order was made on the eighth day of November,...

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    ...1750 and 1756; Burkitt v. Burkitt, 33 So. 417, 81 Miss. 593; Gillespie v. Hauenstein et al., 17 So. 602, 72 Miss. 838; Humphreys v. Stafford, 13 So. 865, 71 Miss. 135; Carter v. Kimbrough, 84 So. 251, 122 Miss. Corinth Bank v. Nixon, 144 Miss. 674; Connell v. Cazenueve, 81 So. 793, 120 Miss......
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