Mounger v. Gandy

• Citation: 69 So. 817,110 Miss. 133
• Decision Date: 08 November 1915
• Docket Number: 17175
• Court: United States State Supreme Court of Mississippi
• Parties: MOUNGER ET AL. v. GANDY ET AL

69 So. 817

110 Miss. 133

MOUNGER ET AL. v. GANDY ET AL

No. 17175

Supreme Court of Mississippi

November 8, 1915

APPEAL from the chancery court of Covington county. HON. R. E SHEEBY, Chancellor.

Suit by M. U. Mounger and John A. Yeager against W. W. Gandy and others. From a judgment for defendants, plaintiff appeals.

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

Decree Reversed.

M. U Mounger and R. H. & J. H. Thompson, for appellants.

McIntosh Bros., for appellees.

OPINION

STEVENS, J.

Appellants as complainants in the court below, instituted this suit in the chancery court of Covington county to quiet their title to the lands described as the northeast quarter of the north-east quarter of section thirteen, township seven north range fifteen west, and the southwest quarter of the north-west quarter of section eighteen, township seven north, range fourteen west, in said Covington county, and to cancel as a cloud the claim of the defendants. Complainants deraigned title through foreclosure by the trustee of a deed of trust given by the defendant W. W. Gandy to secure an attorney's fee of seven hundred and fifty dollars contracted with and owing complainants as the attorneys for the defense of W. W. Gandy, at that time charged with the murder of one Rutland. After W. W. Gandy was arrested, and while incarcerated, he employed the complainants to defend him, and in order to secure the fee he executed a deed of trust on the eighty acres of land involved in this suit to one Lott, as trustee. This deed of trust was foreclosed, and the land purchased by complainants, who deraigned title from the United States government by mesne conveyances to W. W. Gandy and from Gandy to themselves through said foreclosure. It appears that on the trial of the murder case appellants, as attorneys for W. W. Gandy, interposed the defense that at the time of the homicide the defendant was partially insane, being afflicted with what is known as "paranoia." The jury, on the trial of the criminal charge, found that the defendant was insane at the time of the homicide, and so certified by their verdict, and upon this verdict or finding of the jury W. W. Gandy was committed to the insane hospital for treatment, and was so confined at the time of the institution of this chancery suit. A guardian was appointed for his estate, and, in response to the bill in this case, filed waiver of service, joined issue in short with all the allegations of the bill, and adopted the allegations contained in the separate answer of his codefendant, Carrie Lee Gandy. It further appears that Carrie Lee Gandy was a minor, and defended by W. C. Davis, her guardian ad litem. She admits the execution of the deed of trust, but denies that complainants are the owners of the land in question and that her claim thereto is a cloud upon any title of complainants. It is further claimed in her answer that W. W. Gaudy was insane at the time of the execution of the trust deed, and thereby incapable of making said conveyance, and, furthermore, this defendant claimed the lands in question as the exempt homestead. The answer further charges that this defendant filed a bill for divorce against her husband, W. W. Gaudy, and secured a decree of divorce, and also awarding her alimony in the sum of three hundred and ten dollars, and a lien upon the lands in question to pay and satisfy her claim for alimony; that in pursuance of this decree R. Norwood, commissioner, duly advertised and sold the lands in question, and at the commissioner's sale the defendant Carrie Lee Gaudy purchased the lands and received therefor a commissioner's deed, and by virtue of said deed she claims a title thereto. Considerable testimony was taken for both parties, and the cause thereafter heard by the chancellor on bill, answer, and depositions. The chancellor dismissed the bill, and from his decree appellants appeal.

The testimony shows that one Augustus Gandy, father of the defendant W. W. Gandy, owned lands adjoining the lands in controversy, lying to the east of the forty acre tract in section eighteen and to the north and east of that portion of the land in controversy lying in section thirteen. In 1909 W W. Gandy, then a member of his father's household, married a girl of tender years, his codefendant herein, and thereafter he and his child wife lived as a member of Augustus Gandy's household, and in the same house and on the lands owned and occupied by the father as a homestead. They were living as members of this household at the time W. W. Gandy committed the homicide, and at the time of the execution by W. W. Gandy of the deed of trust in question. Carrie Gandy did not join in the execution and delivery of this trust deed. It seems that the lands involved in this suit were acquired by W. W. Gandy before his marriage, and that these lands were wild and uncultivated, and not inclosed, when the trust deed was given, with the possible exception of two or three acres on the northern line of the south-west quarter of the north-west quarter of section eighteen where it is contended by attorneys for the defense, supported by the evidence of the defendants, that the fence inclosing the farm of Augustus Gandy came down across the line from the north and took in several acres of this particular forty title to which was in W. W. Gandy. It was contended by witnesses for the complainants that the fence did not cross the line at that...