Tucker v. Wilson

• Decision Date: 18 May 1891
• Citation: 9 So. 898,68 Miss. 693
• Court: Mississippi Supreme Court
• Parties: J. S. TUCKER ET AL. v. M. E. WILSON ET AL

9 So. 898

68 Miss. 693

J. S. TUCKER ET AL. v. M. E. WILSON ET AL

Supreme Court of Mississippi

May 18, 1891

FROM the chancery court of Lee county, HON. BAXTER MCFARLAND Chancellor.

Appellants filed this bill in the chancery court of Lee county, seeking to revive an original suit begun in their behalf by their next friend in 1870. The history of the said suit is as follows: In 1870, appellants, minor children and heirs of one J. S. Tucker, by their next friend, C. B. Williams, filed their bill in said county against Mary Tucker, J. K. Wilson Mrs. M. E. Wilson and J. B. Vance and others to enjoin a sale of certain land by Vance as trustee for the benefit of said. M. E. Wilson. J. K. and M. E. Wilson made a motion to dissolve the injunction and demurred to the bill, and the demurrer being sustained, complainants by their next friend appealed to the supreme court. The cause was docketed in the supreme court as "No. 564, C. B. Williams' next friend, etc., v. Mary Tucker et al.," and came on to be heard in 1873 (see Williams v. Tucker, 47 Miss 678), and the decree of the chancery court was reversed and the costs of appeal taxed against appellees. Meantime, the cause was a second time docketed, presumably by a mistake of the clerk of the supreme court, and appeared on the docket as "No. 636, Heirs of J. S. Tucker v. Jas. K. Wilson et al.," but no transcript bearing that style was filed and a motion was made to dismiss the appeal in case No. 636 for want of a transcript, and the motion was sustained and the dismissal certified to the lower court. Afterwards, at the same term, counsel for appellants moved the court to set aside the order of dismissal and recall the mandate, because the identical cause had been previously docketed by its proper title and was being considered by the court. This motion was passed from time to time and finally withdrawn.

Shortly after the reversal of the decree, C. B. Williams, the next friend, died, and the costs of appeal taxed against defendant not having been paid no mandate was sent to the lower court certifying such reversal. The defendants, James K. and M. E Wilson, acting, as they testify, upon information from their counsel that the appeal had been abandoned and the injunction consequently dissolved, caused Vance, the trustee, to advertise and sell the land, and at the sale M. E. Wilson became the purchaser and is now claiming the land under said purchase.

No steps were taken in the cause until 1888, when the complainants in their own right filed this bill against the defendants in the original bill seeking to revive the suit. Complainants are all adults, some of them having been of age considerably more than ten years.

The answer of J. K. and M. E. Wilson set up the following defenses: (1) Adverse possession in M. E. Wilson for more than ten years under her purchase from Vance, trustee; (2) That in 1886 a chancery suit filed in Union county by the same complainants against the same defendants, and seeking to cancel the latter's claims to the land, was upon demurrer of defendants dismissed, and that this, if not making the subject of this suit res judicata, yet showed a purpose to abandon the original suit now sought to be revived; (4) That the present suit as well as any other "new action" by complainants is barred under § 2686, code 1880, and if not barred by this statute it is barred under the ten years' statute or the six years statute; (5) That the right of complainants to maintain any action to recover the land is taken away by a special statute of limitations of five years for actions to recover lands, passed in 1882 (Laws 1882, p. 282), specially for Union county, the purpose of which was to cure the evils resulting from burning of the court-house in that county; (6) And finally, that the cause was stale.

The allegations of fact in the answer were established by the evidence. It was shown also that the land in controversy was formerly in Lee county, but was embraced in the territory afterwards formed into Union county.

The evidence showed that complainants after becoming of age had brought an ejectment suit against M. E. Wilson to recover the land, but the action seems not to have been pressed. The dismissal of their bill filed in Union county and referred to before was without prejudice.

Complainants now appeal from a decree dismissing their bill to revive.

Reversed and remanded.

Clarke & Clarke, for appellants.

1. The original suit was not abated by the removal and death of Williams, the next friend. The costs of the appealwere adjudged against appellees, the defendants. The chancery court, after the appeal, was powerless to do anything in the cause until the coming in of the mandate. That the mandate was so long withheld was defedants' fault, and it was not filed until 1889, when complainants themselves paid the costs.

2. the bill of revivor seeks to do just what the mandate would do--to require the chancery court to proceed with the cause. It serves the purpose of getting the parties before the court, of showing that the minors had become adults, that defendants still claim the land, and that the suit is still pending. It also shows the purchase in violation of the injunction by M. E. Wilson and the deed from Vance, the trustees. The bill of revivor was proper. Story Eq. Pl. 418- 434; Adams' Eq. 775. 776; 12 (U. S.) 164; 2 Am. & Eng. Enc. of L. p. 273; 23 Wall. (U. S.) 198.

3. none of the several statutes of limitations invoked are applicable to this case, because it remained during all these years the court or by the act of the parties. It could not be dismissed by operation of law, as there can be such dismissal in this state. 52 Miss. 465; 54 Ib. 333; Story Eq. Pl. 418. We know of no statute of limitations applicable to a bill revive.

Blair & Stribling, for appellee, M. E. Wilson.

1. Mrs. Wilson had been in possession, claiming adversely more than ten years before thsi bill was filed. She purchased at trustee's sale more than ten years before. This sale was not in violation of the injunction, being made at a time when the cause in the supreme court was dismissed. Its subsequent reinstatement and reversal could not affect the sale. Even if the sale was unlawful, it tends to show adverse holding. Adverse possession always begins in wrongful holding. Hanna v. Renfro, 32 Miss. 129; 54 Ib. 224; 60 Ib. 154. It is claiming against the true owner that makes possessions adverse. Angell on Lim. § 390. No case of adverse possession can be found in favor of which the statute does not run. Ib. 381.

2. When the...