Kellogg v. King

• Decision Date: 30 April 1917
• Docket Number: 19003
• Citation: 114 Miss. 375,75 So. 134
• Court: Mississippi Supreme Court
• Parties: KING v. KELLOGG

75 So. 134

114 Miss. 375

KING v. KELLOGG

No. 19003

Supreme Court of Mississippi

April 30, 1917

Division B

APPEAL from the chancery court of Yazoo county, HON. O. B. TAYLOR Chancellor.

Suit by Letita King, Administratix of the Estate of C. L. King against J. M. Kellogg, executor of the estate of M. R. Miles. From a decree for plaintiff, defendant appeals and complainant cross-appeals.

The facts are fully stated in the opinion of the court.

Decree reversed.

E. F Noel, for appellant.

E. L Brown and Watkins & Watkins for appellee.

OPINION

STEVENS, J.

This is the second appearance of this cause in this court, as shown by the reported case of King v. Miles, 108 Miss. 732, 67 So. 182. There appears some confusion in the briefs as to the styling of the case, due to the fact that there is a direct and cross-appeal now before us. We shall consider Mr. Kellogg, the executor of the estate of Mrs. M. R. Miles, deceased, as the appellant, and Miss Letitia King, the administratix of C. L. King's estate, as appellee and cross-complainant. Counsel for appellant concedes in his brief that "practically the same questions, except as to objections to evidence, were involved" in the first appeal.

The opinion heretofore written in this case conclusively settles several points of law now argued afresh, and we must follow the law of the case as announced on the first appeal. The conclusions reached by the court are sound, regardless of any "law of the case" doctrine. With this preliminary statement, we shall proceed to a discussion of such parts of the testimony and the law applicable thereto as is necessary, without undertaking the arduous task of making a complete and separate statement of the facts.

Mrs. M. R. Miles in her lifetime owned two valuable plantations, Mileston and Good Hope. Both of these plantations in the year 1902 she leased to C. L. King. The first lease expired in 1905, and was renewed to run until the end of the crop year 1908. It appears that Mr. King, the tenant, had limited means of his own, and it was necessary for Mrs. Miles, as the landowner, to furnish her said tenant with large sums of money each year with which to make and gather the crops. These advances ran from a thousand to fifteen hundred dollars per month. In March 1903, Mr. King, as the owner of a policy of life insurance on his own life, in the sum of five thousand dollars, payable to his executors, administrators, or assigns, assigned the policy to Mrs. Miles, and in June, 1903, another policy for a like amount, and payable to his estate, was also assigned to Mrs. Miles. These policies were retained by Mrs. Miles until after the death of Mr. King, which occurred October 28, 1911, and on December 3, 1911, Mrs. Miles made proof of King's death and collected the full amount of insurance. Miss Letitia King was appointed administratrix of his estate, and exhibited her bill in equity as administratrix to recover the proceeds of this insurance from Mrs. Miles. At the time this suit was instituted Mrs. Miles was living and resided in the city of New Orleans, but pending litigation she died, and Mr. Kellogg has qualified as her executor. The bill charges that the policies of insurance were originally assigned to Mrs. Miles as security for advances then being made, and that by tacit agreement were retained as security for advances during the next and each successive crop year. It is charged in the bill that all advances which Mrs. Miles made to King had been fully repaid, and accordingly Mrs. Miles had no interest in the proceeds of these policies. The bill was answered, and the answer made a cross-bill. This answer and cross-bill refers to and expressly incorporates as a part thereof the pleadings of a former chancery suit which sheds light upon the present controversy, and to which it is proper to make brief reference. At the termination of Mr. King's lease in 1908, it appears that he was financially involved and owed various creditors, some of whom had judgments. King thereupon filed a voluntary petition in bankruptcy, E. L. Trenholm was appointed trustee in bankruptcy, and King's affairs were duly administered in and by the bankrupt court, and King was in due time discharged. Mr. Trenholm, as trustee, filed a bill in equity against Mrs. Miles, in which he sought to recover, and did successfully recover, upon three accounts or claims: first, usurious interest; second, overcharges in rents; and, third, certain premiums paid by King while he was insolvent, upon the two policies of insurance then held by Mrs. Miles. It was the theory of the trustee in bankruptcy that King had assigned and delivered the life insurance policies to Mrs. Miles as a gift. Mrs. Miles, in answering the trustee's bill, adopted this theory of the assignment of the insurance policies, and represented in and by her answer that the policies had been given to her by Mr. King. The chancellor then rendered the decree, the material portion of which has already been stated in the former opinion in this case. Mrs. Miles was taxed with the insurance premiums upon the theory that King should not in equity take money belonging to his creditors and keep alive insurance which he was voluntarily giving his landlord. The total sum recovered by Trenholm, trustee, was six thousand, five hundred dollars, and this amount Mrs. Miles paid without even prosecuting an appeal to this court. The main point settled by the court in the first opinion in the present case was whether the decree in the Trenholm suit was res adjudicata of the issues here presented. The court has expressly ruled that the parties and the issue are different, and in so doing has settled absolutely the right of King's administratrix to maintain the present action. The answer and cross-bill in the present case, instead of repudiating the theory upon which the Trenholm suit was tried, readopts the averments of the answer to the Trenholm suit, and expressly says in part as follows:

"Respondent further states that in her answer to the amended bill in said cause, in reference to ownership and payment of premiums on the policies referred to in the preceding paragraph, she answered, in effect, denying that any of the premiums on either policy charged to King had been actually repaid to her by King; denying that she knew that said King was wholly insolvent at the time of making said payment on any of them, and stating that said policies were transferred and delivered to her absolutely and unconditionally by said King; that after the said transfer and delivery, the defendant had the right at all times to surrender the said policies and obtain therefor any cash surrender value that said policies had earned; that she did not surrender said policies for their cash surrender value, for the reason that C. L. King requested her to pay the premiums, keep up the policies, and charge the premiums to him, and that it was a matter of grace on her part as to whether she did or not, even if said King repaid; that said policies were paid at the earnest solicitations of C. L. King, and are still owing to her by said C. L. King; and stating further as to each policy: 'Defendant further shows unto the court that, even if she is mistaken as to the legal effect of the said assignment of said policy and the court should hold on the facts that the said policy was assigned to her as collateral and not absolutely, then she is advised and believes that, before she should be caused to surrender the said policy, the complainant, the trustee of the said bankrupt, King, should repay to her, with legal interest thereon, all the premiums paid by her on account of the said policy.'"

Notwithstanding the fact that the chancellor in disposing of the trustee's suit charged Mrs. Miles with the total sum of six thousand five hundred dollars for usury, rents, and premiums, a recovery was permitted without any apparent effort on the part of Mrs. Miles to offset various items now attempted to be offset and recovered in her cross-appeal. She now seeks to recover on certain promissory notes executed by King in his lifetime, and which she claims to be unpaid, the value of four thousand bushels of corn loaned by King and not returned, various payments of premiums expended by her in keeping alive the said policies of insurance, the value of cotton seed alleged to have been loaned and not returned, and large damages claimed for a breach of King's covenants to keep the buildings and cabins in repair. The material findings of the chancellor in the present suit are as follows:

"(1) That the insurance policies were held by defendant's testatrix in pledge, and not as a gift, to secure any and all indebtedness owing to her by complainant's intestate; and

"(2) That the notes given by C. L. King, deceased, to Mrs. Miles each year, for advances, stipulated for usury, and only the principal of each note for each year, should be collected and

"(3) That the principle of the sum as claimed by the defendant against the complainant, after eliminating a clerical error of one hundred dollars, as shown by her Exhibit U, amounted to the sum of three thousand, four dollars and sixty-six cents; and

"(4) That this principal sum of three thousand four dollars and sixty-six cents included a double charge of the item of one hundred ninety-seven dollars and seventy-five cents, premium on insurance in the account for 1904; that said Exhibit D for said year fails to give credit for mule killed and paid for by the railroad in the sum of one hundred eighty dollars which said sum is shown to have been applied as a payment on insurance premium of two hundred, five dollars and sixty cents; that the amount for that year as stated by said exhibit contains a double charge of two hundred seventy-six...