McPherson v. Richards

• Decision Date: 28 January 1924
• Docket Number: 23537
• Citation: 134 Miss. 282,98 So. 685
• Court: Mississippi Supreme Court
• Parties: MCPHERSON et al. v. RICHARDS et al

98 So. 685

134 Miss. 282

MCPHERSON et al. v. RICHARDS et al

No. 23537

Supreme Court of Mississippi

January 28, 1924

Division B

APPEAL from chancery court of Quitman county, HON. G. E. WILLIAMS Chancellor.

Suit by J. J. McPherson and others against Tom Richards and others. From a decree dismissing the bill and cross-bill, plaintiffs appeal. Reversed and remanded.

Judgment reversed and cause remanded.

Lowrey & Lamb, for appellants.

Certain land was leased by the board of supervisors on April 9, 1902 to the defendant, Tom Richards, for a period of twenty two years. Seven years of this term was in consideration of clearing and improvements to be made on the land and the additional fifteen years was for an annual rental of three hundred twelve dollars and fifty cents. All of the defendants have at various times since the beginning of the lease had possession of the said land either as claimants of the lease or tenants of such claimants.

By an order made in 1911 the board of supervisors, for an additional consideration of the clearing of thirty-five acres additional, and the building of two additional houses, and the payment of the ground rent stipulated in the original lease, undertook to extend the original lease, or make a new lease for a term of fifteen years from the expiration of the seven year lease, extending to April 9, 1924.

On the former appeal this court held that the fifteen-year lease was void, and ordered an accounting. We think it is hardly necessary to discuss further the efforts of the board of supervisors to validate this void lease in 1911 (two years after the expiration of the seven-year lease), by the order shown in the record. As pointed out in our briefs on the former appeal, this was not the exercise by consent of the board of supervisors of the preference provided by the statute in force in 1902, when the original lease was made but was entirely an effort to make a new and different lease without the consent of the heads of families of the township and was void.

Even if the finding of the chancellor on the second trial is to be given weight he does not find that the defendants had cleared one hundred and twenty-five acres before the expiration of the seven years, and if he had so found it would be contrary not only to the evidence in the case and utterly unsupported by the evidence, but would also be contrary to the finding of this court on the former appeal. Neither does he find that the defendants had "built one good house on each and every twenty acres of the one hundred and twenty-five acres cleared" as required by the original contract and if he had so found it would have been unsupported by the evidence and utterly unwarranted from the evidence.

We therefore respectfully submit that this case should be reversed and remanded to the chancery court for an accounting with the original lessee for his failure to comply with the terms of the seven-year lease, and also for an accounting with the various holders of the lease since that date for rents and profits, improvements and taxes, under the section of the Code above referred to, and that this accounting be had in the chancery court in this suit.

M. E. Denton, for appellees.

It appears to me to be very clear from the decision of the supreme court, 125 Miss. 219, 87 So. 469, that the former decision of the chancellor was reversed solely upon his finding of fact. The chancellor held, after an oral examination of all of the witnesses in his presence, that the lease contract under which appellees claim title had been complied with, and the supreme court reversed him upon a contrary finding of fact to the effect that the whole lease, including the preliminary seven-year period, and the additional period of leasehold for fifteen years, was void, or had been forfeited, solely upon the ground that "It clearly appears that the lessees did not perform their, contract by clearing the land and building the houses, as agreed in the first lease."

On the rehearing of the case the chancellor conducted a personal examination of the witnesses, and in view of the reversal of his former decision by the supreme court on the facts, he went upon the land personally during the period of high water, which happened to prevail at the time of the trial in his court, and after making a painstaking, personal examination of the premises, held that all of the land contemplated by the original lease contract and all other improvements thereon had been made as mutually contemplated between the parties to the lease.

When a judgment or decree of a lower court is appealed from and reversed and remanded by the supreme court the lower court has full power to allow any amendment to be made in the pleadings, and to permit a trial de novo, the same as if the case had never been appealed. Haines v. Haines, 98 Miss. 830, 54...