Lee v. Lee, 41010

• Decision Date: 23 March 1959
• Docket Number: No. 41010,41010
• Citation: 236 Miss. 260,109 So.2d 870
• Parties: Luther L. LEE v. Wilmer LEE et al.
• Court: Mississippi Supreme Court

Page 870

109 So.2d 870

236 Miss. 260

Luther L. LEE v. Wilmer LEE et al.

No. 41010.

Supreme Court of Mississippi.

March 23, 1959.

Simrall, Aultman & Pope, Hattiesburg, for appellant.

Breed O. Mounger, Tylertown, Emmette P. Allen, Brookhaven, for appellees.

HOLMES, Justice.

This suit is for the adjudication and confirmation of the title to the oil, gas and other minerals in certain land located in Walthall County, Mississippi, and described as the W 1/2 of the NE 1/4 of Section 6, Township 1 North, Range 13 East of Washington Meridian, less 5 acres in the NE corner of said land heretofore sold to the trustees of the colored church located adjacent to said land, comprising 75 acres of land more or less.

F. M. Lee died intestate in February 1937. At the time of his death he was the owner in fee simple of the aforesaid land subject to a deed of trust thereon dated October 19, 1936, executed by the said F. M. Lee in his lifetime to Henry Mounger, trustee for the benefit of George J. Bourn, securing an indebtedness of $325, evidenced by two promissory notes of even date, each for the sum of $172.50, due one and two years from their date respectively. The said F. M. Lee left surviving him as his sole and only legal heirs his widow and thirteen children, all of whom were adults with the exception of two of the children who were each 17 years of age. Each of said heirs on the death of the said F. M. Lee acquired an undivided one-fourteenth interest in the aforesaid land as tenants in common.

Subsequent to the death of the said deceased, one of his legal heirs, namely, his son, Latimer Lee, paid one of the aforesaid notes. Default having been made in the payment of the other of said notes, the trustee in the deed of trust, Henry Mounger, foreclosed the aforesaid deed of trust on June 5, 1939, and at the foreclosure sale struck off and sold said land to Mrs. Annie Louise Mounger, the wife of the said trustee, for a recited consideration of $100. Thereafter, on October 10, 1939, Mrs. Henry Mounger, Jr., who is the same person as Mrs. Annie Louise Mounger, the wife of the trustee in said deed of trust, conveyed said land to Luther L. Lee for a recited consideration of $250.

On April 29, 1944, the said Luther L. Lee conveyed said land to Velma Hart Mark, reserving unto himself all oil, gas and minerals in or under said land. On November 23, 1955, the said Luther L. Lee executed an oil, gas and mineral lease on said land to Union Producing Company. The said lease was thereafter recognized and validated by all those having a mineral interest in said land, and the said lease is therefore not here involved.

On April 18, 1957, the heirs of the said deceased other than the said Luther L. Lee, and certain grantees of mineral rights conveyed by some heirs of the said deceased other than Luther L. Lee, brought this suit in the Chancery Court of Walthall County against the said Luther L. Lee, seeking to have the title to the minerals in said land adjudicated and confirmed in them in accordance with their respective interests. This suit, therefore, involves only the title to the oil, gas and minerals in said land and not the surface thereof.

It was charged in the bill of complaint that each of said heirs acquired an undivided one-fourteenth interest in said land as tenants in common upon the death of the said F. M. Lee. It was further charged in the bill of complaint that the sale of said land at the aforesaid foreclosure sale and the conveyance of said land by the trustee in said deed of trust to his wife were void upon the ground that the trustee in the deed of trust was prohibited from purchasing said land at said foreclosure sale, and that his wife was likewise prohibited from becoming the purchaser at said foreclosure sale. It was further charged in the bill of complaint that the attempted sale and conveyance of said land by the wife of the trustee to Luther L. Lee was void, and that the reservation by the said Luther L. Lee of the oil, gas and minerals in said land in the deed executed by him to Velma Hart Mark was held by the said Luther L. Lee for the benefit of all of the cotenants in said land.

On the trial of the case the proof on behalf of the complainants showed that following the death of the said F. M. Lee his widow and such of the children as had been occupying with him the home place, which adjoined the land here in question, remained in possession of the land here involved and continued in the actual possession of the same by fencing and cultivating the same, cutting trees thereon, and grazing cattle and mules thereon until the year 1949, when the said Velma Hart Mark entered into the possession thereof under the attempted conveyance thereof to her executed by Luther L. Lee on April 29, 1944. The proof on behalf of the complainants further showed that the heirs of the said F. M. Lee other than Luther L. Lee had no knowledge that Velma Hart Mark was claiming the land until she advised them in 1949, and that certain of the said heirs then contacted the said Luther L. Lee and the said Luther L. Lee told them that he would see to it that all of them received their respective interests. The chancellor found that the purchase of the land by the wife of the trustee at the foreclosure sale and the subsequent conveyance thereof by the trustee to his wife were void, and that the reservation of the oil, gas and other minerals by the said Luther L. Lee in his attempted conveyance of the surface of the land to Velma Hart Mark was held by the said Luther L. Lee for the benefit of all of his cotenants.

The chancellor further found that upon the death of the said F. M. Lee, his widow and children other than the said Luther L. Lee who had theretofore been occupying the home place adjoining the land here in question continued in the actual possession thereof, fencing the same, cutting timber thereon, and grazing cattle and mules thereon, and cultivating a part thereof until the year 1949 when they became advised that Velma Hart Mark was claiming the land under the aforesaid attempted conveyance to her by the said Luther L. Lee. The chancellor futher held that the attempted conveyance by Henry Mounger, the trustee, to his wife was null and void and that the attempted subsequent acquisition of said land by Luther L. Lee from the said Mrs. Henry Mounger, Jr., the wife of the trustee, amounted to a redemption of the land for the benefit of all of the cotenants. Accordingly, the chancellor entered a decree granting the prayer of the original bill, adjudicating and confirming title to the mineral interest in said land in the complainants and setting out the respective interests of the complainants and the defendant.

It is the contention of the appellant that the purchase of said land at the foreclosure sale by the wife of the trustee was in all respects valid and that upon the subsequent conveyance of the said land by Mrs. Henry Mounger, Jr., to the appellant, he became a bona fide purchaser thereof and acquired title to the property for his individual benefit and not for the benefit of his cotenants.

It is further the contention of the appellant that the appellees are precluded from asserting any claim of ownership to the oil, gas and other minerals under said land under the doctrines of estoppel and laches. We are of the opinion that these contentions of the appellant are not well founded.

The appellant admits that it is the general rule that a trustee cannot himself buy land at a foreclosure sale when he is the trustee making the sale. Such is generally recognized by the authorities. The trustee in a deed of trust is the agent of both parties, and he therefore occupies a fiduciary relationship to both parties. Rawlings v. Anderson, 149 Miss. 632, 115 So. 714. The rule is founded upon public policy. In 37 Am.Jur., Mortgages, page 96, it is said: 'A person who stands in the relation of attorney in fact to both debtor and creditor is estopped from purchasing the property for his own benefit on the principle that such purchase is against public policy.'

This principle was recognized by this Court more than a century ago in the case of White v. Trotter, 14 Smedes & M. 30, 53 Am.Dec. 112. In that case, Chief Justice Sharkey, writing the opinion of the Court, said: 'Judge Storey enumerates the several...