Rives v. McNeil

• Decision Date: 13 February 1922
• Docket Number: 22372
• Court: Mississippi Supreme Court
• Parties: RIVES v. MCNEIL

90 So. 595

127 Miss. 839

RIVES v. MCNEIL

No. 22372

Supreme Court of Mississippi

February 13, 1922

1. CANCELLATION OF INSTRUMENTS. Refusal to cancel deed where defendant offered to quitclaim to complainant held error.

Where complainant in a former suit procured a decree cancelling deed of another party to land, and where during the pendency of such suit the attorney for defendant took a deed absolute in form as security for his fee; and in suit to cancel the deed so takn offers in his answer to quitclaim to complainant and disclaims ownership, the deed being of record, it was error for the court to refuse to cancel such deed.

2. ELECTION OF REMEDIES. Proceeding to judgment against a third party for rent with knowledge that defendant collected rents and accounted to such party held an election to look to third party.

Proceeding to judgment against a third party for rent with knowledge of all material facts as to defendant's collection of rents for use of such third party, and an accounting by defendant to third party for money so collected, constitutes an election, and binds complainant and estops him thereafter from proceeding against defendant. -Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L. R. A. (N. S.) 785, 17 Ann. Cas 611, cited.

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Copiah county, HON. V. J. STRICKER Chancellor.

Bill by H. W. Rives, executor, against M. S. McNeil. Complainant's bill was dismissed, and complainant appeals. Reversed in part and affirmed in part, and judgment rendered.

Judgment reversed in part and affirmed in part.

Miller & Hendrick, Fulton Thompson and R. H. & J. H. Thompson, for appellant.

On the face of the pleadings, treating the plea and answer of the defendant as properly joined, the complainant was entitled to relief. Certainly he was entitled to a decree canceling and annulling the deed from Burrage to McNeil.

This seems to us to be so plain that we fear the presentation of argument on the subject will be unwarranted. We will, however call the court's attention to the following facts:

1. Neither the plea nor the answer of the defendant deny or put in issue the charges of the bill showing complainant to be the true and real owner of the lands, having a perfectly legal and equitable title to the lands in suit, and the utter invalidity of the deed from Burrage to McNeil.

2. McNeil acquired the deed to the land as a security for his fee for defending the suit of Rives, Executor v. Burrage et al, and this he did before the time for appealing from the chancery court decree in that case had expired, of which he had full knowledge; he was not an innocent purchaser of the lands for value; he paid nothing for them; his deed was merely a security for a pre-existing debt, and his debt had fully been paid, thus rendering his deed of no effect, divesting whatever title, if any, which passed by the deed to him.

3. McNeil's pleadings show that he had no interest in the land at the time this suit was begun. Whatever interest, if any, he may have had was reinvested in Burrage, and the final decree against Burrage estopped all claims that Burrage was the owner of any interest in the land.

4. McNeil disclaims all interest in the lands by his pleadings; he even offers by quitclaim deed to convey the same to the complainant.

Notwithstanding all these facts, the court below denied complainant all relief; not only denied him a recovery of rents, but as well refused to cancel McNeil's deed as a cloud upon complainant's admitted title, a complete and perfect one, to the lands.

The plea was bad and the exceptions to it should have been sustained, and this is true even if the plea and the answer be treated as one pleading.

1. The plea and the answer were to the entire bill and did not present or pretend to present a defense to every part of the bill of complaint. It or they in no way presented a defense to the primary purpose and object to the bill, the cancellation of the deed from Burrage to McNeil as a cloud upon complainant's title and the confirmation of complainant's title to the lands; in fact, the answer admitted the complainant to be entitled to this relief; that complainant was entitled to be adjudged the true, legal and equitable owner of the lands and to have defendant's deed to them cancelled. Defendant's pleadings did not controvert the decree in the first suit, Exhibit "A" to the bill of complaint, by which complainant's title was decreed against Burrage and his co-defendants to the first suit. Defendant's pleadings purported only to be and were designed alone to present a defense or defenses to the complainant's claim and for a recovery of rents, nothing else.

2. Defendant's pleading sought to present the doctrine of election of remedies as a defense, and to aid the facts pleaded the answer asserts that McNeil collected rents as the agent of Burrage seeking thereby to make applicable to this case the decision of this court in Murphy v. Hutchinson, 93 Miss. 643.

In respect to this effort we have to say:

(A) The averment of the answer that McNeil collected rents as the agent of Burrage is disproved by the facts pleaded by McNeil. The defendant shows that the deed made to him by Burrage was a mortgage to secure the payment of his fee in the first suit. If the deed were a mortgage as averred by defendant he was not the agent of Burrage to collect rents for him; McNeil was a mortgagee in possession and collected the rents for himself and not for Burrage, the mortgagor. McNeil's duty as a mortgagee in possession was to restore the land to Burrage, the mortgagor as soon as the mortgage debt was paid. There may have been something in the nature of a trusteeship not an agency, requiring McNeil to deal fairly with Burrage, but they occupied antagonistic positions each caring for his own interest and acting for himself. Neither acted as agent or servant of the other. The acts of neither were the acts of the other and hence the relation of principal and agent did not exist between them.

(B) The complainant did not deal with McNeil either personally or as an agent of any other person, known or unknown. No contract was made between them. McNeil and Burrage were each liable to complainant for the rents collected by them respectively, and if they collected rents for the same time they were jointly and severally liable to complainant therefor as wrongful occupants, by themselves or tenants, of lands belonging to the complainant; they were liable as trespassers and each or both could be sued by complainants for rents collected upon an implied contract, complainant waiving the tort.

(C) If by any sort of reasoning the doctrine of "election of remedies" can be held to have any application to this case, the defendant's pleadings are insufficient to invoke the doctrine. If there be one principle which without exception is controlling on the subject of election of remedies it is this: "The election must have been made with full knowledge of the facts and the burden was on the defendant to aver in his pleadings and prove that complainant had full knowledge of the fact when he elected to sue Burrage." Both of these propositions are conclusively settled by a decision of this court, Madden v. Louisville Etc. Ry Co., 66 Miss. 258, 277.

3. Defendant's pleadings are insufficient to deny complainant relief, not only on the primary purpose and objection of the bill of complaint, but are insufficient as well to free McNeil from liability for rents.

The plea and answer admit that defendant collected rents on complainant's lands; while they do not specify the amount of rent collected by him, they do not deny the charge of the bill that he collected seven hundred and ten dollars as rents and therefore said charge and amount is admitted to be true.

The doctrine of election of remedies does not afford defendant shelter from liability. He collected rents from complainant's lands. This is admitted. Burrage is liable to complainant for rents so collected by him as has been decreed in the suit to which he was a defendant. Both and each of them became so liable to complainant either as tort-feasors or by reason of contract. If, as tort-feasors, the complainant could have sued them jointly or severally. Bailey v. Delta Etc., Co., 86 Miss. 634.

If defendant and Burrage were liable to complainant by reason of a contract, express or implied, the complainant could have sued them jointly or severally by virtue of the statute. Mississippi Code of 1906, section 2683.

The complainant is entitled, as we submit, to a final decree of this court confirming his title to the lands and cancelling the deed from Burrage to McNeil as a cloud on his title, and is also entitled on the face of the pleadings to a personal decree against McNeil for six hundred and seventy-five dollars with interest at six per cent. thereon from March 20, 1920, to date.

Wells, Stevens & Jones, for appellee.

Before taking up the propriety of filing both a plea and an answer we desire to emphasize the legal proposition already advanced in our statement of this case, that the final decree in the prior suit between Rives and Burrage was, and is, binding upon both the defendant Burrage and upon McNeil, who holds in privity of estate.

In 15 R. C. L. 468, the only question that could possibly be raised about the legal effect of the prior decree involving the title of Burrage, would be an inquiry as to the status of McNeil, or his relationship to the defendant Burrage. In the same volume of Ruling Case Law, par. 488, privity is defined as follows:

"As used when dealing with the estoppel of a judgment, privity denotes mutual or successive relationship to the same right of property, and it is classified as privity in...