Maris v. Lindsey

• Decision Date: 14 February 1921
• Docket Number: 21456
• Citation: 87 So. 12,124 Miss. 742
• Court: Mississippi Supreme Court
• Parties: MARIS et al. v. LINDSEY et al

87 So. 12

124 Miss. 742

MARIS et al. v. LINDSEY et al

No. 21456

Supreme Court of Mississippi

February 14, 1921

[Copyrighted Material Omitted]

APPEAL from chancery court of Madison county, HON. V. J. STRICKER Chancellor.

Suit by Sarah Jones Lindsey and others against C. T. Maris and others. From a decree making an injunction perpetual defendants appeal. Affirmed and remanded.

The appellees filed a bill in the chancery court against the appellants, alleging that the complainants, who are the appellees here, are the descendants of one Easter Jones, who died intestate on or about the 8th day of September, 1911 leaving named parties as her heirs, and setting forth the subsequent death of a portion of the heirs and the names of their descendants who inherited in their place their share of the estate of the said Easter Jones. It is also alleged that the said Easter Jones was seized and possessed in fee simple of a portion of the lands embraced in this suit, describing said lands, and also that she died seized and possessed of an undivided one-half interest in other lands described in the bill, and that Jacob Jones, her husband, owned the other one-half interest in the last-mentioned lands; that Jacob Jones died intestate on the 24th day of September, 1919, and left as his heirs certain of the complainants. It is further alleged that on the 14th day of April, 1917, the said Jacob Jones and William Dinkins, Sr., conveyed all of their interest in all of the above-mentioned lands to C. T. Maris, as evidenced by deed of record referred to in the bill; that on the same day C. T. Maris reconveyed to said Jacob Jones and William Dinkins, Sr., a part of the said lands, describing the same in the bill, and alleged that the said C. T. Maris and William Dinkins, Sr., are in the full possession and control of the said lands, and have had the exclusive possession since their respective transfers and the death of the said Easter Jones, and that they have held the same for their own use and benefit to the exclusion of the complainants, having collected valuable rents, sold much valuable timber therefrom, used and occupied portions of the said land for their own benefit; the sum and total of said amounts being unknown to the complainants.

It is further alleged in the bill that there appears on the records of deeds in the office of the chancery clerk an instrument of writing, purporting to be a deed of trust on all of said lands executed by the said Jacob Jones and Easter Jones to secure Fred Rings in the sum of five thousand dollars, divided into eleven deferred payments of five hundred dollars, each evidenced by a note due and payable on the 8th day of March of the years 1912, 1913, 1914, 1915, 1916, 1917, 1918, 1919, 1920, 1921, and 1922, respectively.

It is further alleged in the bill that Jacob Jones and Easter Jones were never indebted to the said Rings, and if the said deed of trust was to secure to any person any sum, the indebtedness had long since been paid, and the notes surrendered and the lien thereby released. But should the court find anything to be lawfully due, complainants offer to do equity in the premises.

The bill sets forth the respective interest claimed by the complainants, and alleges that William Dinkins, Sr., and C. T. Maris each had a one-seventh interest in said lands, as to a portion of the lands, and a one-fourteenth interest each as to the lands owned jointly by Jacob Jones and Easter Jones.

The bill prays that a commissioner be appointed by the court to ascertain the amount of rents received and the use and occupation of the lands, and to ascertain the value of all timbers cut, sold, or used by them since the death of the said Easter Jones, and to ascertain the amount of all taxes paid by them, together with the value of all permanent improvements made by them, if any, and for a partition of the lands, if capable of a partition in kind, and, if not, then for a sale of said lands for division of the proceeds among the parties to the suit.

The answer of the defendant Maris admitted the heirship of some of the complainants as alleged and denied, upon information and belief, as to the others; admits that the parties who are dead died intestate as alleged in the bill; admits that Easter Jones died owning a portion of the lands; and denied her ownership of other lands at the time of her death. The defendant, Maris, admits the allegations with reference to the conveyance by Jacob Jones and William Dinkins, Sr., but charges that they owned all the land sought to be partited, but that such ownership was subject to a deed of trust given to secure certain indebtedness to Fred Rings, but denies the amount set out in the bill, and sets forth the amounts of the notes according to his contention, and alleges that said notes were transferred to John Wohner, and that said debt was due and unpaid, and that on the 9th day of June, 1913, said lands were sold by the trustee to Jake Jones and William Dinkins, and that said Jones and Dinkins acquired a perfect legal title, and that complainants have no claim to the said lands for this reason. The answer denies the allegations with reference to the collection of rents and the selling of timber, etc., and denies the right to have an accounting of said things.

The answer further alleges that on June 9, 1913, Jake Jones, William Dinkins, Robert Jones, Maggie Jones, and Sarah Jones Lindsey owed John Wohner the sum of five thousand eight hundred sixty-five dollars, bearing interest at the rate of six per cent. per annum, and that they executed six promissory notes due and payable in from one to six years for the sums of one thousand three hundred twenty-nine dollars and forty cents, one thousand two hundred seventy dollars and seventy-five cents, one thousand two hundred twelve dollars and ten cents, one thousand one hundred fifty-three dollars and forty-five cents, one thousand ninety-four dollars and eighty cents. and one thousand thirty-six dollars and fifteen cents, and secured said notes by deed of trust upon all of said lands to W. H. Powell, trustee, which was duly acknowledged and placed of record, and a certified copy filed as an exhibit to the answer and cross-bill; that this debt, secured by said deed of trust, was transferred to the said Maris on April 14, 1917, and noted on the record; that said parties failed to pay said notes, and that the trustee in accordance with law and the terms of the deed of trust sold all of said lands to the said Maris on April 16, 1917, by deed duly acknowledged and recorded, a copy of which is filed as an exhibit to the answer and cross-bill; that the defendant Maris thereby acquired a perfect title to said lands. The answer and cross-bill further alleges that the first publication of the notice of said trustee's sale was made on March 23, 1917, the second notice on March 30, 1917, and the third notice on April 6, 1917, and that the sale was made on April 16, 1917.

In the answer and cross-bill it is further alleged that on April 2, 1917, all of the lands described in the bill were sold for the taxes of the year 1916 due the state and county, said sale being made by the sheriff and tax collector to John Wohner, and that a tax deed was executed and filed with the chancery clerk, and remained on file until March 31, 1919, on which date it was unlawfully delivered by the clerk to Jake Jones or William Dinkins, or to some one of the complainants; that the said chancery clerk thought he had a right to deliver said deed because said person paid him, as he thought, the necessary amount to redeem the lands, but as a matter of fact the taxes for 1917 and 1918 were not paid to the said chancery clerk by them, as required by section 4338 of the Code of 1906, and that the said attempted redemption of said lands was null and void.

The answer and cross-bill further alleges that the defendant Maris paid the taxes for the years 1917, 1918, and 1919, the same amounting to a total of six hundred dollars and thirty cents, which is alleged to be a first lien upon said lands should the complainants be granted any relief. It is further alleged that since the 16th day of April, 1917, the said Maris has placed upon said lands permanent improvements, before notice of the intention of the complainants to claim said lands, in the sum of five hundred dollars. It is further alleged that the trustee, W. H. Powell, as a further precaution, fortification, and establishment of the title to said lands advertised the same for resale under the deed of trust aforesaid on April 19, 1920, but before the sale was made an injunction was obtained on a supplemental bill, and he was restrained from selling the same. The answer is made a cross-bill.

The complainants filed a supplemental bill setting forth the fact that Powell, trustee, had readvertised the lands for sale, and that if the deed of trust was ever owing to Wohner, it had been paid and discharged by the sales of timber and rents, profits, etc., and an injunction was prayed and obtained, restraining the sale.

The complainants answered the cross-bill of the defendant Maris, and denied the material allegations in the cross-bill and the validity of the sales made.

The exhibits to the answer and cross-bill of Maris are extensive, and set forth the deeds of trust and notices appearing in the papers under each of them, with copies of the deeds of trust and trustee's deeds executed in both instances. In the deed of trust executed by Jacob and Easter Jones, A. K. Foote, trustee, to secure Fred Rings, the record shows that the advertisement of said sale appeared in a newspaper of the county as follows: First, on May 16, 1913; second, on May 23, 1913; third, on May 30, 1913; and the sale was made on the 9th day of June, 1913.

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