Pennington v. Purcell

• Citation: 125 So. 79,155 Miss. 554
• Decision Date: 02 December 1929
• Docket Number: 28039
• Court: United States State Supreme Court of Mississippi
• Parties: PENNINGTON v. PURCELL

125 So. 79

155 Miss. 554

PENNINGTON v. PURCELL

No. 28039

Supreme Court of Mississippi

December 2, 1929

Division A

1. APPEAL AND ERROR. Former opinion settling principles of case held "law of case" on whether mortgagee had notice of pending partition suit, there being no additional points in evidence.

Opinion on former appeal, settling principles of case when case was before Supreme Court on demurrer on whether beneficiary under deed of trust was notified of pending partition suit involving property by recital in deed of trust, held "law of case," where there were no points in evidence tending to show any other knowledge than was conveyed by the recital in trust deed.

2. APPEAL AND ERROR. Where supreme court announces principles of case and remands case, questions determined are settled unless mistake in opinion amounts to miscarriage of justice.

Where case is brought to supreme court for express purpose of having court announce principles on which it is to be tried and these principles have been announced and case remanded to the lower court, supreme court should enforce general rule that question considered and determined in former appeal is deemed to be settled, unless mistake in former opinion is so palpable as to amount to miscarriage of justice.

3 MORTGAGES. Evidence did not show debt upon which trust deed was founded was fictitious.

In suit to have claims asserted by defendant decreed to be subordinate and inferior to plaintiff's deed of trust and for foreclosure, evidence held not to show that debt on which trust deed was founded was fictitious or simulated debt.

4. JUDICIAL SALES. Creditor purchasing at judicial sale may make "payment" within meaning of limitations statute by applying debt due him in payment of bid (Hemingway's Code 1927, section 2660).

Creditor purchasing at judicial sale may make "payment," within meaning of Hemingway's Code 1927, section 2660 (Code 1906, section 3122), providing that action shall not be brought to recover property sold by order of chancery court where sale is in good faith and purchase money paid, unless brought within two years after possession taken by purchaser, by applying debt due himself in payment of his bid so far as purchase money would inure to him.

5. JUDICIAL SALES. Bar set up by statute against action to recover property sold by chancery court's order applies only against parties to record or their privies (Hemingway's Code 1927, section 2660).

Bar set up by Hemingway's Code 1927, section 2660 (Code 1906, section 3122), providing that action shall not be brought to recover property sold by order of chancery court where sale is in good faith and purchase money paid, unless brought within two years after possession taken by purchaser, can only be effective as against parties to record or their privies or those whose title depends upon validity or invalidity of decree of sale, since statute merely bars attack upon irregularities of proceedings or invalidity of decree.

6. JUDICIAL SALES. Two-year statute cannot be invoked by purchaser at commissioner's sale and at execution sale to bar right to foreclose paramount lien (Hemingway's Code 1927, section 2660).

Hemingway's Code 1927, section 2660 (Code 1906, section 3122), providing that action shall not be brought to recover any property sold by order of chancery court where sale is in good faith and purchase money paid, unless brought within two years after possession taken by purchaser, cannot be invoked by one purchasing at commissioner's sale under cotenant's lien for use and occupation and at execution sale for costs of partition proceedings so as to bar rights of beneficiary under prior deed of trust to foreclose paramount lien.

HON. J. L. WILLIAMS, Chancellor.

APPEAL from chancery court of Sunflower county HON. J. L. WILLIAMS, Chancellor.

Suit by Ben T. Pennington against Mrs. E. M. Purcell. From a decree dismissing the bill, complainant appeals. Reversed and remanded.

Reversed and remanded.

Forrest G. Cooper, of Indianola, and J. J. Breland, of Sumner, for appellant.

The two-year Statute of Limitation contained in Section 2660 of Hemingway's Mississippi Code of 1927, is no bar to this action because it is only effective against parties to the record or their privies or those whose title depends upon the validity or invalidity of the decree of sale.

Revised Code of 1871, sec. 2173; Richardson v. Brooks, 52 Miss. 118; Morgan v. Hazelhurst Lodge, 53 Miss. 665; Section 2693, Revised Code of 1880; Martin v. Gilleyler et al., 70 Miss. 324, 12 So. 254; Section 3053 of Hemingway's Code 1927; Foster v. Gulf Coast Canning Co., 71 Miss. 624, 15 So. 931; Dendy v. Commercial Bank & Trust Co., 108 So. 274.

The appellee did not pay the purchase money at the commission's sale within the meaning of section 2660, Hemingway's Code of 1927.

Shannon v. Summers, 86 Miss. 619, 38 So. 345.

There are no facts in the record which would warrant the chancellor in finding as a fact, that the consideration for the note given by Joe B. Evans to appellant, secured by the deed of trust, which the appellant is seeking to foreclose in this suit, was fictitious or simulated. The question of notice was settled beyond dispute by this court on the first appeal of this case.

Pennington v. Purcell, 111 So. 577.

Chapman, Moody & Johnson, of Indianola, for appellee.

Where land was sold by order of the chancery court and the sale was in good faith, the purchase money was paid and an action was not brought within two years after possession taken by the purchaser under such sale of the property an action is barred by the Statute of Limitation.

Section 2660, Hemingway's Code of 1927; Sec. 2486, Hemingway's Code of 1917; Section 3122, Mississippi Code of 1906; Section 2760 of the Code of 1892; Sec. 2693 of the Code of 1880; Sec. 2173 of the Code of 1871; Jordan v. Bobbitt, 91 Miss. 1, 45 So. 311.

At a judicial sale where the sale is to be for cash, if a creditor purchases he may make payment by applying the debt due himself in payment of his bid so far as the purchase money would inure to him.

35 C. J. 53; 41 C. J., p. 977, sec. 1427; Ivey v. New South Building & Loan Ass'n (Ga.), 30 S.E. 540.

All questions of fact resolved by the chancellor in favor of the appellee are presumed by this court to be correct, unless palpably erroneous and by the decree of the chancellor it is established the debt secured by the deed of trust was fictitious.

Although a decision has been rendered by this court on a former appeal this court may review its holdings on a subsequent appeal and not adhere to them if the former decision is erroneous and would lead to unjust results, especially where no rights have accrued in reliance upon the former decision.

Brewer v. Browning, 115 Miss. 358, 76 So. 267.

Each cotenant has a lien upon the interest of every other for the value of the use and occupation of the joint estate beyond such tenant's individual interest therein.

Walker v. William, 84 Miss. 392, 36 So. 450; Bennett v. Bennett, 84 Miss. 493, 36 So. 452; Courtenay v. Hayden, 127 Miss. 13, 89 So. 777; Medford v. Frazier, 58 Miss. 241; Burns v. Dreyfus, 69 Miss. 211, 11 So. 107.

The purchaser of real estate is bound to take notice of all recitals in the chain of title through which his own title is derived. Not only is he bound by everything stated in the several conveyances constituting that chain, but he is bound fully to investigate and explore everything to which his attention is thereby directed.

Deason v. Taylor, 53 Miss. 697; 2 Pomeroy's Equity Jurisprudence (3 Ed.), sec. 597, pp. 980-981; Bank of Tupelo v. Motley, 127 Miss. 674, 90 So. 438; Chaffee v. Patterson, 61 Miss. 28; Osborn v. Crump, 57 Miss. 622, 627; Shotwell v. Lawson, 30 Miss. 27; Glattli v. Bradford, 105 Miss. 573, 62 So. 6431; Allen v. Pool, 54 Miss. 323, 333; 30 Cyc. 211g, 38 C. J. 22, sec. 24.

Argued orally by Forrest G. Cooper, for appellant, and by Elmer Johnson, for appellee.

OPINION

McGowen, J.

The appellant, Ben T. Pennington, filed his bill against the appellee, Mrs. E. M. Purcell, alleging that by virtue of a certain deed of trust executed January 12, 1920, by Joe B. Evans in his favor, he was invested with a superior, paramount, and first lien on a certain twenty-nine-acre tract of land; in Sunflower county, Mississippi, and prayed that any and all claims asserted by Mrs. Purcell be decreed to be subordinate and inferior to the lien of his deed of trust, and that same be foreclosed by decree of the chancery court.

Hitherto the appellee filed a demurrer to the original bill, which being sustained by decree of the lower court, appellant appealed to this court therefrom, to settle the principles of the case, and the report of that appeal, styled the same as this is found in 145 Miss. 543, 111 So. 577, wherein the decree of the court below sustaining the demurrer was reversed, and remanded for trial in that court.

When the case reached that court, appellee filed her answer, and the issue being joined and the evidence heard, the court entered a decree dismissing appellant's bill, and denying him any relief; from which decree an appeal was prosecuted here.

We deem it unnecessary to set forth at length the pleadings, believing that a statement of the facts will render this opinion readily and easily understood.

On December 2, 1918, Mrs. Purcell filed a petition for partition of this and other land against J. B. Evans, her cotenant, and further asserted that Evans should be required to account to her for rent due on the land for prior years, alleging that he had exclusive use of the lands and of the rents thereof.

On May 20, 1920, the chancery court entered its decree, directing that the land be partited in kind; and appointed...