McGehee v. Weeks

• Decision Date: 23 December 1916
• Docket Number: 18279
• Citation: 73 So. 287,112 Miss. 483
• Court: Mississippi Supreme Court
• Parties: MCGEHEE ET AL. v. WEEKS

73 So. 287

112 Miss. 483

MCGEHEE ET AL. v. WEEKS

No. 18279

Supreme Court of Mississippi

December 23, 1916

Division B

APPEAL from the chancery court of Attala county, HON. A. Y WOODWARD, Chancellor.

Bill by M. J. McGehee and another against A. W. Weeks, wherein defendant filed a cross-bill and applied for a writ of sequestration. From an interlocutory decree granting the application, complainants appeal.

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

Decree affirmed, and cause remanded.

James F. McCool and Thomas Land, for appellant.

Teat &amp Teat, for appellee.

OPINION

STEVENS, J.

This appeal is prosecuted from an interlocutory decree granting an application on the part of the defendant and cross-complainant, A. W. Weeks, for a writ of sequestration to seize certain agricultural products grown upon the premises in litigation. Appellants were the complainants in the court below, and by their bill seek to cancel a deed absolute in form executed by them in favor of the defendant. The theory of the bill seems to be that this deed was intended as a mortgage, or at least that appellants by separate instrument of writing were accorded the right to repurchase the lands upon payment of one thousand nine hundred and sixty-five dollars and eighty-four cents on or before November 1, 1914; and in event they did not redeem the land by that date, they, by the same instrument, promise to pay the defendant or order the sum of one hundred twenty five dollars as and for the rent of the premises for the year 1914, The writing by which they promise to pay rent and by which they are given the right to redeem the land appears to have been executed on the same day the deed of conveyance was signed and delivered.

This separate instrument is crudely drawn, but, whether it operates as a deed of defeasance or not, it appears from the pleadings that appellants, as the grantors in the deed, remained in possession, and upon the trial of the case upon its merits they would be permitted to show by parol evidence or otherwise that the deed was intended to operate as a mortgage. Their bill avers that time for paying the amount necessary to redeem was by oral agreement extended by Mr. Weeks. The bill also avers that the consideration for the deed was a previous indebtedness due by appellants to Mr Weeks, and that there is embraced in this indebtedness usurious interest and other illegal charges. The answer denies the material allegations of the bill, and this answer is made a cross-bill. It is averred in the cross-bill that the defendant and cross-com...