Ella v. Kelly

• Decision Date: 06 June 1898
• Court: Mississippi Supreme Court
• Parties: MARY ELLA ET AL. v. GEORGE D. KELLY ET AL

23 So. 641

77 Miss. 48

MARY ELLA ET AL. v. GEORGE D. KELLY ET AL

Supreme Court of Mississippi

June 6, 1898

March 1899

FROM the chancery court of Adams county HON. CLAUDE PINTARD Chancellor.

Mary Ella Hebron and others, appellants, were complainants in the court below; George D. Kelly and others, appellees, were defendants there.

Mary E Leggett died in 1879, leaving a will, by which she gave a $ 3, 000 legacy to G. Malin Davis, in payment of a debt due said Davis by the husband of the testatrix. I. H. McCouen, a brother of the testatrix, was appointed executor of the will by the terms of which he was directed to work Greenfield plantation, in Adams county, and out of the rents pay a mortgage given by the testatrix to Jefferson College, and the $ 3, 000 legacy bequeathed Davis. Subject to this mortgage and legacy, the testatrix devised a portion of Greenfield to her brother-in-law, William Leggett, and the balance to the daughters of Thomas H. McCouen, Mary Ella Hebron and Rosa White. Davis purchased the Jefferson College mortgage on Greenfield, foreclosed it, and purchased the property August 31, 1882, at commissioner's sale, which was confirmed December 4, 1882. Davis' bid exceeded the amount due him on the mortgage, and he paid his bid by satisfying the mortgage, and receipting to the commissioner for the excess on his $ 3, 000 legacy. The bill of complaint was filed in September, 1896, by Mrs. Hebron and Mrs. White against S Kelly, as executor of the will of G. Malin Davis, and guardian of George D. Kelly, and against George D. Kelly, as sole heir of G. Malin Davis. The bill set forth the above matters, and, among other things, alleged that Davis agreed with the father of complainants, who were then minors, to advance or loan complainants the money to buy Greenfield at the sale under foreclosure of the mortgage; to hold the title as security for what was due him under the mortgage and the $ 3, 000 legacy, about $ 4, 500; and to accept, for the $ 4, 500 due him, twenty bales of cotton yearly for five years, and to convey Greenfield to complainants when the one hundred bales had been paid him. Complainants further claimed that Davis received twenty bales of cotton in 1882 front their father, on the contract, and that their uncle, A. H. Cook, completed the payment of the twenty bales yearly for 1883, 1884, 1885, and 1886; that they are entitled to a conveyance of Greenfield, and a decree for rents since January l. 1897. S. Kelly filed an unsworn answer, in which he denied the material allegations of the bill, and set forth that he was discharged as administrator of Davis' estate in June, 1885, and had never been appointed guardian of his son in Mississippi. 77 Miss.--4 No answer was filed on behalf of George D. Kelly, and no guardian at litem appointed for him. Complainants appealed from a decree dismissing their bill. The supreme court decided that Davis held the legal title of Greenfield, as trustee, until his debt against it, of about $ 4, 500 was entirely worked out by the payment of twenty bales of cotton yearly. Hebron v. Kelly, 75 Miss. 74. After the cause was remanded several depositions were taken on behalf of each of the parties. When the cause was heard the second time, the chancellor took the cause under advisement, to be decided in vacation. While the chancellor had the case under advisement, George D. Kelly filed a petition for a rehearing as to himself, under § 519, code of 1892. His petition set forth that he had been cited only by publication, and had not appeared before in the cause; that his father had never been appointed his guardian in this state; that guardian ad litem had not been appointed for him, and that he would attain his majority February 28, 1898. He prayed that the cause be remanded to rules, that he be permitted to file an answer and cross bill, and that the cause stand for hearing anew, as to him and his interest, and the orders and decrees previously rendered be reviewed. Summons was served upon Mrs. White, and publication made for Mrs. Hebron, as required by § 520 of code; but the chancellor, ignoring the petition, rendered a decree in vacation, January 29, 1898, directing that George D. Kelly convey Greenfield to complainants upon the payment to him of $ 5, 767.55, with 10 per centum per annum interest from January 1, 1898, and upon March 7, 1898, rendered another decree, sustaining the demurrer of complainants to the petition. Complainants appealed from the decree of January 29, 1898; and George D. Kelly, having arrived at age, appealed in his own name from both decrees. For an excellent statement of the facts of this ease, as developed up to that time, the reader is referred to the opinion of the court in the previous report thereof, Hebron v. Kelly, 75 Miss. 74.

We adhere to our original opinion and decree.

A. G. Shannon, for appellants.

The questions passed upon and decided in appellees' favor by the court below in the last trial are res adjudicata against them under the decision of this court in this case on the former appeal. Hebron v. Kelly, 75 Miss. 74. We make this assertion on the faith of the following authorities, viz.: Green v. McDonald, 13 Smed. & M., 445; Caston v. Caston, 54 Miss. 512; Corning v. Troy Factory, 15 How. (U.S.), 451; Henderson v. Winchester, 31 Miss. 290.

On the cross appeal.--Surely defendant, cross appellant, is not entitled to a rehearing. Whether the demurrer to his petition was overruled for the right or because of a wrong reason, it was correctly overruled.

This case, the one presented by said petition, is not within § 519, code 1892, nor can it be successfully claimed that the petition for a rehearing should have been granted under code 1892, § 596. The petition was premature under the last section. McLemore v. Chicago, etc., R. R. Co., 58 Miss. 514.

Calhoon & Green, for appellee and cross appellant.

1. Hicks v. Blakeman, 74 Miss. 459, cannot affect the decree, as the court, in its opinion, in effect held. Because it was, first, essentially, an action of ejectment, though in the chancery court, and hence a proper case for the application of §§ 1673 and 1674, code of 1892.

2. The defendants there claimed title paramount, and this was their only relation to the property, while here the appellee claimed title, but, as in Uhler v. Adams, 73 Miss. 332, was, by decree, compelled to stand as trustee and mortgagee, the relations claimed in the bill.

3. Upon a bill filed for an account by a trustee or mortgagee a different rule prevails from that under an action of ejectment. Secs. 1673, 1674, code 1892.

4. Here there was privity of title between complainants and appellee--as trustee and mortgagee--and upon this privity of title a redemption of the mortgage is sought, and ant account, while in Hicks v. Blakeman there was title paramount and hostile asserted by complainant, and the quantum recruit rule as to rents was, of necessity, involved.

Ernest E. Brown, on same side.

The bill of complaint should have been dismissed in view of the new evidence on the second trial, the most of said evidence having been discovered since the first trial. The decision of this court on first appeal meant no more than that on record then before it, Davis was a trustee, and complainants entitled to an accounting, but it did not preclude on second trial evidence which might show clearly Davis was not a trustee. Taylor v. Wright, 54 Miss. 722; Wailes v. Johnson, 25 Miss. 421; Hanserd v. Gray, 46 Miss. 75. In Taylor v. Wright, Simrall, C. J., said: "Our judgment meant no more than that as the record then was the account should be taken. But we did not thereby deny the right and power of the chancery court to consider new matter which might be brought into the cause, though, thereby, its complexion might be entirely changed."

Justice Yerger, in Wailes v. Johnson, 25 Miss. 422, announced the correct principle, as follows: "The only effect of our mandate is to require the chancellor, upon the state of the pleadings and proof remaining the same as it was when decided by the high court, to render the decree directed by the mandate." The chancellor, however, erroneously adopted the view that this court had finally adjudicated Davis was a trustee, and, on second hearing, he would consider nothing but an accounting between the parties.

But, finding as he did, the chancellor should not only have found a larger amount due George D. Kelly, but should have inserted in the decree that the amount be paid within a specified time or complainants would be forever barred of all equity of redemption, or Greenfield would be sold to pay the amount. Hunt v. Stockton Lumber Company, 21 So. 454.

The demu...