Shepherd v. Johnston

• Decision Date: 13 January 1947
• Docket Number: 36262.
• Citation: Shepherd v. Johnston, 201 Miss. 99, 28 So.2d 661 (Miss. 1947)
• Court: Mississippi Supreme Court
• Parties: SHEPHERD et ux. v. JOHNSTON.

28 So.2d 661

201 Miss. 99

SHEPHERD et ux. v. JOHNSTON.

No. 36262.

Supreme Court of Mississippi

January 13, 1947

Brunini, Brunini & Everett, of Vicksburg, and Creekmore & Creekmore, of Jackson, for appellants.

Lamer F. Easterling, of Jackson, John H. Culkin and James D. Thames, both of Vicksburg, for appellee.

McGEHEE, Justice.

The claim of ownership on the part of the appellants, J. H Shepherd and wife, to a one-half undivided fee-simple interest in the 1935 acres of land involved herein, the legal title to which is held by the appellee, Mrs. Mattie H Johnston, is predicated upon an alleged resulting trust arising by operation of law under the following circumstances, to wit:

That on, and prior to, January 29, 1935, the appellant, J. H Shepherd, was in possession of the said land under a lease contract, and shortly before the lease expired he was offered the opportunity to purchase the same for $4,200 from the then owners, Mrs. Mary Richardson and others; that not having the money with which to finance the purchase, he undertook to borrow the same from Dr. S.W. Johnston, husband of the appellee; that as a result of his efforts in that behalf an agreement was finally reached whereby Dr. Johnston was to advance the amount necessary to handle the transaction, and they were each to acquire a one-half undivided interest therein; that it was therefore agreed that Dr. Johnston would make a loan of $2,100 to Mr. and Mrs. Shepherd with which to purchase their said one-half interest, and with the understanding that the deed of conveyance from Mrs. Mary Richardson and others should be executed in favor of the appellee, Mrs. Mattie H. Johnston, in order that the title might be held by her in trust, and as security for the loan until the Shepherds should fully repay the same; and that thereupon a deed would be executed by Mrs. Johnston in favor of the Shepherds for their one-half undivided fee-simple interest in the land.

That the loan of $2,100 was carged against the Shepherds on the books of Dr. Johnston, and was fully repaid prior to the end of the year 1938, out of the part of the profits belonging to the Shepherds, which were derived from the operation of the land by them during the intervening years.

The suit to establish this alleged resulting trust is brought against Mrs. Mattie H. Johnston as sole defendant, and is based upon her refusal to convey to the complainants, Mr. and Mrs. Shepherd, the one-half undivided fee-simple interest aforesaid.

Dr. Johnston had died prior to the filing of the suit, and a motion was made at the hearing, containing all necessary and proper averments, and otherwise meeting all legal requirements whereby the complainants asked for an inspection and copy of the books and records kept by Dr. Johnston in his lifetime pertaining to the purchase and operation of the land in question. It is alleged in the motion that the said books and records contain data showing that such $2,100 loan had been made, and also that the same had been fully repaid. The inspection was asked to be allowed at the office of the Chancery Clerk, and subject to such terms and conditions as the court might deem proper. This motion was overruled, and the action of the trial court in that behalf is one of the grounds assigned as error on this appeal.

Under section 1659, Code 1942, Griffith's Chancery Practice, section 542, and the cases of Equitable Life Assurance Society v. Clark, 80 Miss. 471, 31 So. 964; Robertson v. Greenwood Lbr. Co., 127 Miss. 793, 90 So. 487, and Knox v. L. N. Dantzler Lbr. Co., 148 Miss. 834, 114 So. 873, the complainants were entitled to the inspection, as requested, and it was reversible error, under the rule announced in the foregoing decisions, to have overruled the motion in that behalf.

At the trial the complainants offered to testify as to the alleged agreement between themselves and Dr. Johnston for the purchase of the land, and as to the repayment of the purchase price for their one-half interest therein on the basis hereinbefore set forth. An objection was sustained to such testimony when offered, for the reason that it was deemed by the court to be in support of their claim against the estate of the said Dr. Johnston, a deceased person. But we are of the opinion that the court was in error in excluding this testimony, since neither the estate of Dr. Johnston nor any of his heirs at law, other than his wife, were parties to this suit. They could not, therefore, be bound by any decree that may have been predicated upon this testimony in the present suit. The trial court held that they were not necessary parties to the instant suit, and there is no cross appeal from that action in overruling a demurrer which raised the question of non-joinder of necessary parties.

Since the defendant, Mrs. Mattie H. Johnston, had expressly denied in her answer that Dr. Johnston's estate has any interest in the land in controversy, and she contended both in her answer and in her testimony as a witness at the trial that she purchased the land in her own right, and is now the sole owner of the fee-simple title thereto, it will be readily seen that the proffered testimony would tend to establish the claim of the complainants against her, and to show that she is holding the title under a...