Silver Creek Co. v. Hutchens

• Decision Date: 01 January 1934
• Docket Number: 30931
• Citation: 151 So. 559,168 Miss. 757
• Court: Mississippi Supreme Court
• Parties: SILVER CREEK CO. v. HUTCHENS, CHANCERY CLERK, et al

151 So. 559

168 Miss. 757

SILVER CREEK CO. v. HUTCHENS, CHANCERY CLERK, et al

No. 30931

Supreme Court of Mississippi

January 1, 1934

Division A

1. APPEAL AND ERROR.

Chancellor's fact findings, supported by ample evidence, cannot be disturbed on appeal, unless manifestly wrong.

2 INJUNCTION.

In absence of agreement preserving right to hearing of motion to dissolve injunction as interlocutory matter at regular term separate from hearing on merits, and preserving all defendants' rights as if hearing had been in vacation granting of attorney's fees for dissolution of injunction would be improper.

3. INJUNCTION.

Plaintiff's counsel, having agreed to hearing of motion to dissolve injunction as interlocutory matter during regular term with all rights defendants would have had on hearing in vacation preserved, were bound by agreement, and plaintiff was liable for attorney's fees for dissolution of injunction, notwithstanding, after such interlocutory hearing, same evidence was immediately introduced on merits.

4. INJUNCTION.

Award of damages on dissolution of wrongful injunction was properly withheld until final determination of case.

5. INJUNCTION. In suit to cancel alleged void tax sale, award of one thousand two hundred dollars attorney's fees to defendants for procuring dissolution of injunction restraining distribution of alleged excessive portion of taxes paid into court held grossly excessive, and reduced- to five hundred dollars.

The award of attorney's fees was grossly excessive, in view of the fact that, at time of hearing on motion to dissolve the injunction, all the funds affected by the injunction had been unconditionally released therefrom except damages, penalties, and interest amounting to three thousand four hundred dollars and ten cents, and that, on the motion to dissolve, trial was not extended, and issues were not complicated.

6. COSTS.

Defendants' motion for allowance of attorney's fees on plaintiff's appeal from decree dissolving injunction was denied, where principal issue presented on appeal involved merits.

HON. J. L. WILLIAMS, Chancellor.

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

Suit by the Silver Creek Company against A. R. Hutchens, chancery clerk of Humphreys county, and others. From an adverse decree, plaintiff appeals. Affirmed in part and reversed in part and rendered.

Affirmed in part, and reversed in part.

H. Talbot Odom and P. D. Montjoy, Jr., both of Greenwood, for appellant.

A sale of lands at tax sales, without offering same in forty acre tracts, is void.

Section 3249, Mississippi Code of 1930; Carothers v. McLauran, 56 Miss. 371; Griffin v. Ellis, 63 Miss. 348; Herring v. Moses, 71 Miss. 620, 14 So. 337; Herron v. Jennings, 31 So. 965; Stevenson v. Reed, 90 Miss. 341, 43 So. 433; Talmage v. Seward, 155 Miss. 580, 124 So. 791.

The decree is clearly against the overwhelming weight of the evidence.

It appears clearly that the decree in this case is contrary to the preponderance of the testimony and the decision of the chancellor is manifestly wrong. In such a case this court not only has a right, but it is the duty of this court, to reverse the, chancellor on the finding of facts, which we feel confident will be done in this case when the court carefully considers the testimony of the several witnesses.

Gillis v. Smith, 114 Miss. 665, 75 So. 451; McCarty et al. v. Love, 145 Miss. 330, 110 So. 795; Kwong et al. v. Miss. Levee Coms., 144 So. 693; Griffith's Chancery Practice, sec. 453, p. 479; Jones v. Brandon, 60 Miss. 556; 32 C. J. 426, 427; Cocks v. Simmons, 57 Miss. 183; Rickets v. Rickets, 152 Miss, 792, 119 So. 194.

Attorneys' fees are not allowable for defending an injunction suit on its merits when the injunction was a mere incident thereto.

Griffith, Chancery Practice p. 491, sec. 464; Derdeyn v. Donovan, 81. Miss. 696, 33 So. 652; Jamison v. Dulaney, 74 Miss. 890, 21 So. 972; Curphy & Mundy v. Terrell, 89 Miss. 624, 42 So. 235; Mims v. Swindle, 124 Miss. 686, 87 So. 151; Howell v. McLeod, 127 Miss. 1, 89 So. 774; Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840; State Cotton Cooperative Association v. Borodofsky, 139 Miss. 368, 104 So. 91; Hunter v. Harkinson, 141 Miss. 279, 106 So. 514; Giglio v. Saia, 140 Miss. 769, 106 So. 513; Staple Cotton Cooperative Association v. Buckley, 141 Miss. 483, 106 So. 747; Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Shuler et al. v. McCool, 128 So. 511; 32 C. J. 476.

It was error to hear the motion to dissolve without going into the case on its merits.

Section 399, Mississippi Code of 1930.

The attorney's fees allowed are excessive.

Nixon v. City of Biloxi, 25 So. 664, 76 Miss. 810; Vicksburg Water Works Co. et al. v. City of Vicksburg, 54 So. 852, 99 Miss. 132.

C. M. Murphy, R. H. Nason, and V. B. Montgomery, all of Belzoni, for appellees.

Lands must be offered by tracts. Each tract must be handled as a unit for sale purposes. The sheriff first offers a forty acre parcel of the first tract for the total taxes due on the first tract, then adds another forty acres and offers eighty acres of the first tract and so on until all taxes for the first tract are obtained, or all of same is sold. Then the next tract must be handled in the same way, and so on, until all of the tracts of one landowner have been sold.

Gregory v. Brogan, 21 So. 521, 74 Miss. 694; Hewes v. Seal, 32 So. 55, 80 Miss. 437.

The decree is supported by the overwhelming weight of the evidence.

The chancellor's findings on conflicting evidence are not subject to revision by the Supreme Court.

Southern Plantations Co. v. Kennedy Heading Co., 61. So. 166, 104 Miss. 131; Evans v. Sharborough, 64 So. 466, 106 Miss. 687; Bank of Lauderdale v. Cole, 71 So. 260, 111 Miss. 39; Jackson v. Banks, 109 So. 905, 144 Miss. 392; Bacot v. Holloway, 104 So. 696, 140 Miss. 120; Stevenson v. Swilley, 126 So. 195, 156 Miss. 552; Byrd v. Hendon, 120 So. 203; Hill City Compress Co. v. West Kentucky Coal Co., 122 So. 747.

Appellant had a full, complete and adequate remedy at law. Hence the injunction was improper even if the tax sales were void.

It was proper to hear the motion to dissolve without going into the case on its merits.

The attorneys' fees allowed are very reasonable.

Curphy v. Terrell, 89 Miss. 624, 42 So. 235; Section 433, Mississippi Code of 1930; Staple Cotton Cooperative Association v. Borodofsky, 139 Miss. 368, 104 So. 91; Day v. McCandless, 142 So. 486; Johnson v. Howard, 141 So. 573; Moss v. Sanitary Board, 154 Miss. 765, 122 So. 776; N. O. & M. C. R. R. v. Martin, 105 Miss. 230, 62 So. 228; Penny v. Holberg, 52, Miss. 567; Griffith's Mississippi Chancery Practice, sec. 464, note 24, p. 491; Vicksburg Water Works Co. v. City of Vicksburg, 54 So. 852, 99 Miss. 132.

Argued orally by H. T. Odom, for appellant, and by V. B. Montgomery, for appellee.

OPINION

Cook, J.

The appellant, Silver Creek Company, filed its bill of complaint against A. R. Hutchens, chancery clerk of Humphreys county, the state of Mississippi, R. D. Moore, state land commissioner, T. L. Gilmer, sheriff and tax collector of Humphreys county, and the board of Mississippi levee commissioners, seeking to set aside and cancel an alleged void tax sale of lands owned by the appellant, for the state, county, and levee taxes due thereon for the year 1930.

The bill of complaint alleged that the appellant was the owner of large tracts of land located in Humphreys county, Mississippi; that for the year 1930 the assessment against said lands was, without authority of law, and without notice to the appellant, illegally increased approximately fifty per cent. over the assessment for the previous year; that, believing such increased assessment to be unfair, unjust, excessive, and illegal, the appellant refused to pay the taxes for the year 1930, and permitted said land to be sold by the tax collector, at which sale they were struck off and sold to the state of Mississippi for the amount of the alleged delinquent taxes thereon; that, in selling the lands in pursuance of a notice of sale previously published, the tax collector failed to comply with the requirements of section 3249, Code 1930, in that he did not first offer forty acres, and, if the first parcel so offered did not produce the amount due, then offer another similar subdivision, and so on until the required amount was produced, or until all the land constituting one tract and assessed as the property of appellant was offered for sale before striking off to the state the appellant's land; and therefore the said attempted sale was null and void, and conveyed no title whatever to the state.

With this bill of complaint the appellant offered to and did pay into court the sum of fifteen thousand five hundred seventy-four dollars and ninety-four cents, the amount demanded by the chancery clerk for the redemption of said lands from the alleged void tax sale, and as ancillary relief under the bill the appellant prayed for and obtained an injunction against the chancery clerk, commanding him to accept the said money and issue releases covering said lands, but restraining him from distributing the said sum to the various taxing districts interested therein, for the alleged reason that the said taxing districts were insolvent and could not be made to respond in judgment or be made to refund the amount, in the event said tax sale should be held to be void.

The bill of complaint was filed on. March 27, 1933, and was returnable to the April rules of the court. On April 7, 1933 the defendants, A. R. Hutchens, chancery clerk, and T. L. Gilmer, sheriff and tax collector, filed an answer and cross-bill, and also a motion to dissolve the injunction,...