Veterans Administration v. Bullock

• Decision Date: 06 December 1965
• Docket Number: No. 43668,43668
• Parties: The VETERANS ADMINISTRATION and V. L. Millier, Trustee v. W. B. BULLOCK et al.
• Court: Mississippi Supreme Court

Page 610

180 So.2d 610

254 Miss. 562

The VETERANS ADMINISTRATION and V. L. Millier, Trustee v. W. B. BULLOCK et al.

No. 43668.

Supreme Court of Mississippi.

Dec. 6, 1965.

Watkins & Eager, Wm. E. Suddath, Jr., G. L. Lucas, Jackson, Walker & Dillard, Laurel, for appellants.

McFarland & McFarland, Bay Springs, Lampkin H. Butts, Laurel, for appellee.

SMITH, Justice.

The appellants, Veterans Administration and V. L. Miller, Trustee, filed their bill in the Chancery Court of the Second Judicial District of Jasper County against Neil E. Bullock and his wife, Janie Bullock; W. B. Bullock and his wife, Suda G. Bullock; Claude Smith; and, Lampkin Butts, Trustee, appellees, seeking reformation of certain instruments relating to a real estate transaction which involved or affected all of the parties.

The bill alleged that a surveyor erred in stating the location of the beginning point in his description of the lot in controversy and that the parties had, through mutual mistake, used this erroneous description in the instruments sought to be reformed. The bill charged that as a result of this mistake the lot described in these instruments was not the lot intended to be conveyed and encumbered, on which there was a dwelling, but was an entirely different lot, remote therefrom, entirely vacant and consisting of wild land.

Appellees have moved this Court to strike the notes of the reporter and to dismiss the appeal. They assign as the ground for this motion that notice to the court reported to transcribe her notes was not given within ten days after rendition of the final decree. The circumstances relating to this aspect of the case are as follows.

Upon the conclusion of the trial, the case was taken under advisement. On September 1, 1964, in vacation, the chancellor made his detailed findings of fact and conclusions of law, and on September 5, 1964, this was filed among the papers in the cause. This document concluded, 'ordered and adjudged', and was signed by the chancellor. Because of these concluding words and other language employed by the court, appellants apparently considered this to be in the nature of an adverse final decree, and on September 5, 1964, gave notice to the court reporter to transcribe her notes for the purpose of an appeal to this Court.

On September 16, 1964, also in vacation, the chancellor signed a final decree which was filed on September 22, 1964. This decree was not submitted to any attorney for appellants prior to its submission to the court for signature. No copy was sent to counsel for appellants and no notice whatever was given to any representative of appellants that it had been prepared and was being submitted to the chancellor. The decree was signed by the chancellor and was filed in the cause and again no notice was ever given by court or counsel to the appellants, who did not learn of the existence of the decree until on or about October 27, 1964. When it was fortuitously discovered that a decree had been entered, on October 30, 1964, appellants gave a supplemental notice to the court reporter to transcribe her notes.

Reasonable notice and a reasonable opportunity to assert one's rights are fundamental in every concept of due process. The almost universal and by far the better practice, in cases of this kind, is to submit proposed decrees to counsel for the opposing party prior to submission to the chancellor for his signature. This is required by Rule 38 of the Rules in Chancery. Griffith, Mississippi Chancery Practice at page 791 (2d ed. 1950).

Here the decree was neither submitted to counsel for appellants nor were they notified that it was being submitted to the chancellor for signature. After it was signed, they had no notice that it had been signed or filed. It would be unreasonable to require appellants to take notice of the entering of this decree of which they knew absolutely nothing. Under the circumstances in the record, appellees are estopped to question the efficacy of the notice given on September 5, 1964, following the entry of the chancellor's findings of fact and conclusions of law, and to assert that, as supplemented by the subsequent notice, it was not timely. The motion to strike the reporter's transcript and to dismiss the appeal is overruled.

W. B. Bullock and his wife, Suda G. Bullock, owned 50 acres of land in the Second Judicial District of Jasper County, Mississippi, described as:

The East 1/2 of the NW 1/4 of the SW 1/4, Section 19, Township 10 North, Range 11 West, and the NE 1/4 of the SW 1/4, less the East 10 acres thereof, in Section 19, Township 10 North, Range 11 West.

Their son, Neil E. Bullock and his wife, Janie Bullock, obtained a Veterans Administration loan in the amount of $9,750.00 to obtain funds with which to purchase an acre of this land on which there was a dwelling house, which they intended to occupy as their home. A correct description of this lot is as follows:

Begin at the SE corner of the NE 1/4 of the SW 1/4 of Section 19, Township 10 North, Range 11 West, and run thence West 330 feet, thence North 465 feet to a point of beginning; thence West 210 feet, thence North 210 feet, thence East 210 feet, thence South 210 feet to the point of beginning, containing one acre, in the Second Judicial District of Jasper County, Mississippi.

A survey of the property was made, the surveyor's plat showing a square one acre lot with a frame house thereon, located on a road. In writing up his description of the lot, the surveyor stated that the beginning point of his description was 1320 feet west of the southeast corner of the Northeast Quarter of the Southwest Quarter of Section 19, Township 10 North, Range 11 West. In this, he was in error by some 1000 feet, thereby locating the lot embraced within the calls of the survey description about 1000 feet from the lot on which the house was actually situated, although still located upon the W. B. Bullock 50 acre tract. The lot embraced within the survey lines contained no house or building of any kind. It was vacant, wild land, and was not located on any road. However, both the house and the road were shown on the surveyor's plat. The testimony in the record shows this vacant land to be worth about $100.00 per acre.

The court excluded a written contract of sale and purchase offered by complainants to show the agreement between the W. B. Bullocks as sellers and the Neil Bullocks as purchasers, and excluded testimony offered for the purpose of showing what was said by these parties at the time of the transaction as to the property being sold and purchased.

However, it was abundantly clear that the property intended to be purchased by the Neil Bullocks and to be conveyed by the W. B. Bullocks was the lot on the road and on which the house was located and not a vacant woods lot some 1000 feet distant. Beyond question, this was also the lot which the Veterans Administration intended to accept as security for its loan of $9,750.00, and which the Neil Bullocks intended to encumber as security for their loan.

There is no material conflict in the evidence. The Neil Bullocks defaulted and failed to appear at the trial at all. The W. B. Bullocks were in the courtroom when the case was called, but immediately absented themselves when complainants announced that they were desired as witnesses. A subpoena issued for them was returned 'not found', and they did not testify. There is testimony from a surveyor, however, that W. B. Bullock told him that the lot on which the house was situated was the one to be surveyed, and the surveys show the outline of this house upon all of the plats in the record, including the plat containing the error in description.

Suda G. Bullock, wife of W. B. Bullock, also admitted to a witness that there had been 'an error in the description of the property'. She pointed out to this witness the house as that occupied by her son Neil Bullock. The $9,750.00 proceeds of the Veterans Administration loan was paid to W. B. Bullock and his wife, Suda G. Bullock, and covered the cost of certain repairs to the house and the payment of the consideration for the conveyance of the real estate.

The error in the survey description was not discovered and occurs in the description contained in the conveyance from the W. B. Bullocks to the Neil Bullocks and in the trust deed from the Neil Bullocks to V. L. Miller, Trustee, securing their indebtedness to the Veterans Administration. The Neil Bullocks defaulted in the payment of their debt and in the subsequent foreclosure, the notices and trustee's deed carried forward the rrror in description. When the error was finally discovered, the W. B. Bullocks were called upon to rectify the situation but declined to do so. This suit was then brought for the purpose of obtaining a reformation of the deed from the W. B. Bullocks to the Neil Bullocks, and of the trust deed of the Neil Bullocks to V. L. Miller, Trustee, securing the Neil Bullocks' loan from...