Miles v. Fink

• Decision Date: 03 February 1919
• Docket Number: 20369
• Citation: 119 Miss. 147,80 So. 532
• Court: Mississippi Supreme Court
• Parties: MILES ET AL. v. FINK

80 So. 532

119 Miss. 147

MILES ET AL. v. FINK

No. 20369

Supreme Court of Mississippi

February 3, 1919

Division B

1. EXECUTORS AND ADMINISTRATORS. Possession of real estate. Notice to heirs.

Under Code 1906, sections 2012, 2071, 2079, (Hemingway's Code sections 1677, 1738, and 1746), where the will does not confer any specific powers upon the executor to take charge of the real estate and lease it, and there is sufficient cash on hand to pay debts, the heirs should have notice and a hearing of a proceeding by the executor to obtain possession of and lease such real estate.

2. TENANCY IN COMMON. Lease by tenant in common.

While one tenant in common cannot lease the whole property, so as to bind the other co-tenants, still one tenant may lease to the extent of her rights in the property, and such lease will be valid to the extent of her interest.

3 INJUNCTION. Mandatory injunction. Possession of land.

Where a defendant is in possession of land under bona-fide claim of right and is financially able to pay any damages assessed against him, a mandatory injunction to oust him of possession should not be issued without notice to him.

HON JOE MAY, Chancellor.

APPEAL from the chancery court of Bolivar county, HON. JOE MAY, Chancellor.

Bill by Jake Fink against John R. Miles and others. From an order denying a motion to dissolve an injunction, defendant appeals.

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

Case reversed and cause remanded.

J. B. Harris and A. W. Shands, for appellant.

Owen & Roberts, for appellee.

OPINION

ETHRIDGE, J.

One J. S. Simpson died in Bolivar county, owning certain lands, which prior to his death had been leased for the period of five years, and which lease expired January 1, 1918. The appellant Miles and his partner, having acquired this lease, were in possession of the property involved prior to and on the 1st of January, 1918. Simpson in his will made certain specific bequests, among other things willing to his wife, Mrs. Mary Simpson, certain sums of money, and the rents on his land for life, and undertook to will the lands, after the death of his wife, to certain of his relatives. Mrs. Mary Simpson renounced the will and took an heir's share, being awarded one-half of the property, real and personal, of said Simpson. In December, 1917, the executors of the will of Simpson published notice that they would lease the plantation involved in this suit on a given day, and on that day Miles filed a bid; also a bid was filed by Jake Fink, the appellee, in which bid he did not bid a specific sum, but bid one hundred dollars more than the highest bid. Miles was dissatisfied and consulted a lawyer, who informed him that the executors had no power to lease the lands. Thereupon Miles went to Mrs. Simpson on the 28th of December, 1917, for the purpose of renting the land, and offered her a sum in excess of the amount which the executors contracted with Fink for under his bid. On the 28th of December, while Miles was at Mrs. Simpson's she had some one call up J. W. Cutrer, her attorney, and the evidence is in dispute as to what took place in the telephone conversation between Cutrer and Mrs. Simpson's representative; Miles contending that she notified Cutrer not to rent the place to Fink under any conditions, and Mr. Cutrer saying that he did not so understand the conversation, and did not understand that the party was talking directly for Mrs. Simpson. According to the appellee's testimony, which is not disputed by any evidence in the record, Mrs. Simpson agreed to rent him the land for the year 1918 at the sum of sixteen dollars per acre, but would not give a written contract until she conferred with an attorney named Montgomery. She tried to get in touch with Mr. Montgomery at that time, but he was out of the state, whereupon she told Miles to keep possession of the place, and not to surrender to any one except on her written order.

On the 4th day of January following this, J. W. Cutrer sent the executors a writing, signed by him as agent and attorney for Mrs. Simpson, ratifying the lease made to Fink. Miles refused to give possession to Fink, and a suit of unlawful entry and detainer was sued out, but on the return day was dismissed, and a petition filed with the chancellor, without notice to Miles or Mrs. Simpson, praying the court should authorize and confirm the action of the executors in leasing the land, which was done by the chancellor without notice to Miles. At the same time a petition was filed with the chancellor, praying for the issuance of a mandatory injunction to dispossess Miles and to place Fink in possession. This petition or bill was also without notice to Miles, being ex parte. The bill for an injunction alleged that Miles was a pure trespasser, and had no color of right or shadow of lease, and also alleged that Fink was in possession, and prayed only for a mandatory injunction to remove Miles from possession and for damages to Fink. Mandatory injunction was granted, without notice to Miles, and without hearing, that it was granted on an ex parte application of the appellee. The sheriff armed with this writ of injunction went upon the lands in question and served the injunction upon Miles and demanded possession. Miles requested time to confer with a lawyer, and after so conferring with his attorney refused to vacate the premises, but testified that he did nothing to prevent the other party coming into possession.

This writ was served on Saturday night, and on Sunday the attorney for appellant called the chancellor over the telephone, wanting the chancellor to come to Cleveland, Miss., for the purpose of hearing a motion to dissolve the injunction, stating that he did not want himself or his client to be in contempt of any order of the court. The chancellor stated that he could not come the following day, as he had to go to South Mississippi, but set the hearing for a later day, and told the attorney that he would not consider the appellant as wrongfully violating the injunction until such hearing. On the hearing it was admitted by the appellee in open court that there was enough cash money left by Simpson to pay all of his debts, and that the estate was perfectly solvent. It was also testified by the appellant that he and his partner were solvent, being worth over liabilities about forty thousand dollars, and the value of the rental of the place as rented to Jake Fink by the executors was twelve thousand, two hundred and ninety-six dollars. It appeared further, in the evidence on the motion to dissolve, that the appellant and his partner had been in possession of the lands in controversy, and had never been out of possession until the hearing, and also that Fink was not in possession at the time of the suing out of the writ of injunction, and had not been in possession at that time. The chancellor refused to dissolve the injunction on this hearing, and refused a supersedeas to the appellants, but granted an appeal to settle the principles of the case.

The will of Simpson did not confer any specific power upon the executors to lease the land; no specific control being by the terms of the will given the executors. The appellants contend that the only right the executors had to the possession of the land under the will was under section 2071, Code of 1906 (section 1738, Hemingway's Code) and that under section 2079, Code of 1906 (section 1746, Hemingway's Code), the heirs or devisees shall be given notice before hearing, and the chancellor's decree approving the lease by the executors is void. The appellee contends that under section 2012, Code of 1906 (section 1677, Hemingway's Code), the concluding clause of which reads as follows:

"And he shall also have a right to the possession of the real estate so far as may be necessary to execute the will, and may have proper remedy therefor," the appellee contends that no notice is required under this section to the heirs and devisees.

An examination of the will convinces us that the executors had no power under the terms of the will to take charge of the real estate and lease it, and that such lease would only be valid when ratified by the parties interested. We think, also, that under section 2012, Code of 1906 (section 1677, Hemingway's Code), the heirs and devisees would have to have notice and a hearing to give the executors possession of the real estate under that section. It follows from what we...