Scottish-American Mortg. Co. v. Bunckley

• Decision Date: 11 June 1906
• Citation: 88 Miss. 641,41 So. 502
• Court: Mississippi Supreme Court
• Parties: SCOTTISH-AMERICAN MORTGAGE COMPANY v. ALBERT N. BUNCKLEY ET AL

41 So. 502

88 Miss. 641

SCOTTISH-AMERICAN MORTGAGE COMPANY v. ALBERT N. BUNCKLEY ET AL

Supreme Court of Mississippi

June 11, 1906

FROM the chancery court of Franklin county, HON. WILLIAM P. S VENTRESS, Chancellor.

Bunckley the appellee and cross-appellant, was complainant in the court below; the mortgage company and others, appellants and cross-appellees, were defendants there. From a decree in part and largely favorable to complainant, the defendants appealed to the supreme court and complainant prosecuted a cross-appeal.

The case was once before in the supreme court and is reported Scottish-American Mortgage Co. v. Bunckley, 81 Miss 599 (s.c,. 33 So. 416). A previous litigation over the property and deeds involved in the case is reported Bunckley v. Jones, 79 Miss. 1 (s.c., 29 So. 1000).

The bill by one tenant in common sought to set aside certain conveyances as clouds on the title to the property in controversy, and the other tenants in common were made defendants along with the adverse claimants of the land. It was demurred to, the demurrer overruled, and an appeal taken to the supreme court, which affirmed the action of the lower court in overruling the demurrer, and remanded the cause for answer. The defendants thereafter answered, and the case went to trial on pleadings and proof. The court below held that the complainant was entitled to a one-fourth interest in the property, one-eighth as heir at law of his father, Nathan Bunckley, and one-eighth as assignee of his brother, W. R. Bunckley, and decreeing possession of the one-fourth interest to him, and canceled as a cloud upon his title the trust deed executed to the defendant, the Scottish-American Mortgage Company, by Nathan Bunckley, the father of complainant, in so far as it affected complainant's title and allowed him the rents and profits, less taxes, on his portion of the property, and taxed all costs against the defendants. The Scottish-American Mortgage Company and its vendees appeal, assigning numerous errors which are set forth in the opinion of the court. The defendants, the heirs of Ransom Bunckley, also appeal, admitting the correctness of the decree of the court in decreeing in favor of the complainant, but contending that their rights, which are identical with those of appellee, were ignored, and that the court below should have granted them relief, although they did not file a cross-bill. The appellee prosecutes a cross-appeal, contending that the court below should have ordered a partition of the property.

Calvin Perkins, for appellant and cross-appellee.

Res Judicata.--We feel confident that the learned chancellor erred in not sustaining the plea of res judicata set up by the mortgage company in its answer as to the undivided one-tenth interest which the complainant took under the deeds of May 10, 1847, and the undivided one-fortieth interest which he took by inheritance from his sister Alice. Those interests were owned by the complainant at the time he filed his bill in the first cause, No. 418, whereby he sought to recover a larger interest than he held, namely: an undivided one-third interest.

The bill in that case, succinctly stated, was a bill to remove cloud from title to an undivided one-third interest in the lands alleged to be owned by the complainant, and for partition, and for a writ of possession. Foster v. Jones, 17 So. 893; Freeman on Cotenancy, secs. 531, 532; 21 Am. & Eng. Ency. Law (2d ed.), 1195; Christmas v. Russell, 5 Wall., 290-307.

In Chiles v. Champenois, 69 Miss. 603-610 (s.c., 13 So. 840), it was decided that a mere bill to remove cloud from title defeated on account of defect of proof, barred a subsequent suit against the same party involving the title to the same land.

That case was overruled by Hart v. Picard, 75 Miss. 651 (s.c., 23 So. 450), in an opinion rendered by Chief Justice WOODS, without taking any notice of the decision in Chiles v. Champenois and the numerous previous decisions of this court upon which Chiles v. Champenois was based. The only reason given in Hart v. Picard for holding that a decree dismissing a bill filed to remove a cloud was not res adjudicata, was that the complainant's bill had been dismissed because she failed to show title in herself. Whether Chiles v. Champenois, or Hart v. Picard, be correct, is not material to the point now under discussion--(a) because said case No. 418, Bunckley v. Jones, was not a mere bill to remove cloud from title, filed under sec. 500 of the code of 1892, but was a partition bill in which all questions of title were, by said secs. 3101 and 3112, required to be settled; and (b) Hart v. Picard has been overruled by sec. 502 of the code of 1892, which provides that in suits to remove cloud the chancery court shall have jurisdiction "to decree possession and to displace possession, to decree rents and compensation for improvements and taxes. " Hart v. Bloomfield, 66 Miss. 100 (s.c., 5 So. 620), the case which was held in Hart v. Picard, not to be res adjudicata, arose under, and was governed by the code of 1880. That code did not contain the provision about possession, quoted above from sec. 502 of the code of 1892.

The complainant in the instant case is concluded by the adjudication in the first case, No. 418, for the further reason that in that case the present respondents set up in their answer, and proved an equitable estoppel against the said Albert N. Bunckley.

Statute of Limitations.--Feeling confident that the complainant is bound by the adjudication against him in the said suit, No. 418, as to the undivided one-tenth interest which he took under the deeds of May 10, 1847, and the undivided one-fortieth interest which he took by inheritance from his sister Alice, we shall only discuss the statute of limitations as applicable to the undivided one-eighth interest which the complainant claims to have purchased from William R. Bunckley.

The undisputed facts proven by neighbors and employes of Nathan Bunckley and by R. S. Butler, his son-in-law, who was a member of his family for eleven years, and by S. H. Bunckley, his son, who was a member of his family and his plantation manager from 1870 to 1890, are, that continuously from prior to 1870 until the 6th day of January, 1893, Nathan Bunckley resided on the land in controversy and claimed openly and notoriously that he was the sole owner thereof, except that in 1873 and 1877, recognized that the children of Ransom P. Bunckley owned an interest in that part of the tract which was allotted to Ransom P. Bunckley by the partition of 1861, and purchased from two of the three children of the said Ransom P. Bunckley their interest, and declined to purchase the interest of Mrs. Scriber, the third child. During the twenty-three years from 1870 to 1893, the land was assessed to Nathan Bunckley, was known to his neighbors and friends as his land, and he made annual crops thereon and took the same as his own property, without paying rent to any person whatever. Freeman on Cotenancy, sec. 223; Ib., sec. 228; Ib., sec. 229; Ib., sec. 230; Ib., sec. 231; Bentley v. Callahan, 79 Miss. 302 (s.c., 30 So. 709).

Theodore McKnight, for appellee and cross-appellant.

The proof in this cause utterly and absolutely fails to show adverse possession and to bring this cause within the rule of law as to adverse possession laid down by the following authorities: Tegarden v. Carpenter, 36 Miss. 404; Nixon v. Porter, 38 Miss. 401; Tush-Ho-Yo Tubby v. Barr, 41 Miss. 52; Metcalf v. McCutcheon, 60 Miss. 154; Davis v. Bowman, 55 Miss. 765; Green v. Mizell, 54 Miss. 225; Jones v. Brandon, 59 Miss. 585; McGehee v. McGehee, 37 Miss. 138; McClanahan v. Barlow, 27 Miss. 664; Hutto v. Thornton, 44 Miss. 166; Welburn v. Anderson, 37 Miss. 155; Rothchilds v. Hatch, 54 Miss. 555; Dean v. Tucker, 58 Miss. 487; Huntington v. Allen, 44 Miss. 668; Goff v. Cole, 71 Miss. 46 (s.c., 13 So. 870); Railroad Co. v. Buford, 73 Miss. 494 (s.c., 19 So. 584); Warren County v. Mastronardi, 76 Miss. 273 (s.c., 24 South Rep., 199); Bentley v. Callahan, 79 Miss. 302 (s.c., 30 So. 709); Smith v. Cunningham, 79 Miss. 425 (s.c., 30 So. 652); McCaughn v. Young, 85 Miss. 277 (s.c., 37 So. 839); 1 Am. & Eng. Ency. Law (2d ed.), 789, 790, 794, 795, 796, 797, 798, 801, 802, 803, 804, 805, 821, 831, 834, 886, 889, 892, and authorities cited.

I most respectfully submit that the defense of res adjudicata has not been made out in accordance with the following authorities: 24 Am. & Eng. Ency. Law, 784, "b;" same, 789, and note 3, citing Hubbard v. Flynt, 58 Miss. 266; same, 822, 823, and note 1, citing Lorance v. Platt, 67 Miss. 183 (s.c., 6 So. 772), and Hart v. Picard, 75 Miss. 651 (s.c., 23 So. 450); same, 277, 278; Dunlap v. Edwards, 29 Miss. 41; Clay County v. Chicasaw County, 76 Miss. 418 (s.c., 24 So. 975); Adams v. Railroad, 77 Miss. 194 (s.c., 24 So. 200); Nutt v. Knut, 84 Miss. 465 (s.c., 36 So. 689).

I most respectfully submit that it is really unnecessary to cite any authorities upon the proposition of res adjudicata, except the case of Hart v. Picard, 75 Miss. 651 (s.c., 23 So. 450), which is a duplicate of the case of Bunckley v. Jones in respect to the question of res adjudicata now sought to be raised in the instant case on account of the litigation in the case of Bunckley v. Jones.

I give for the convenience of the court the reference to the following decisions of this honorable court upon the question of estoppel, to wit: Turnipseed v. Hudson, 50 Miss 429; Sulphine v. Dunbar, 55 Miss. 255; Staton v. Bryant, 55 Miss. 261; Davis v. Bowmar, 55 Miss. 671; Stewart v. Matheny, 66 Miss. 21 (s.c., 5 So. 387); Murphy v. Jackson, 69 Miss. 403 (s. c., 13 So. 728); Hart v. Livermore, etc., Co., 72 Miss. 809 (s.c., 17 So. 769); Thomas v. Romano, 82 Miss. 256...