Vinson v. Colonial & United States Mortgage Co.

• Decision Date: 19 November 1917
• Docket Number: 19575
• Citation: 76 So. 827,116 Miss. 59
• Parties: VINSON ET AL., v. COLONIAL & UNITED STATES MORTGAGE CO. ET AL
• Court: Mississippi Supreme Court

76 So. 827

116 Miss. 59

VINSON ET AL., v. COLONIAL & UNITED STATES MORTGAGE CO. ET AL

No. 19575

Supreme Court of Mississippi

November 19, 1917

Division A

APPEAL from the Chancery Court of Holmes county, HON. A. Y WOODWARD, Chancellor.

Partition proceedings by Mrs. J. A. Vinson and others against the Colonial & United States Mortgage Company and others with counterclaim by defendants. From a decree for defendant plaintiff appeals.

This case is now in the supreme court for the second time. The facts of the case necessary to an understanding of the points involved are fully stated in the opinion of the court in the former decision. See Watson v. Vinson, 108 Miss 600, 67 So. 61. In that case the chancellor held that the appellants here owned a three-fourths undivided interest in the lands in controversy, and that appellee Mrs. Fannie M. Watson owned a one-fourth interest in said lands, and entered a decree accordingly on August 13, 1913, which was affirmed by the supreme court January 25, 1915, in the case supra. When the appeal in the former case was taken to the supreme court, the appellees here, who were appellants in the other case, executed a supersedeas bond, which provided that they would "pay such costs, damages, and rents as shall be awarded by the supreme court of Mississippi on the final hearing of this appeal."

After the mandate of the supreme court was received by the lower court in May, 1915, appellants made demand of appellee Mrs. Watson for rents for the years 1913 and 1914, during which years she had remained in possession of said lands, claiming the same under the provisions of the will of her late husband, Dr. J. H. Watson, Sr., who was the father of appellants, and which rents she had collected during the time the former case was pending on appeal in the supreme court. afterwards, by supplemental petition appellants prayed that the rents for the year 1915 also be ascertained and awarded appellants.

The chancellor declined to allow the rents for these years, upon the theory that, in addition to paying taxes for those years, appellee Mrs. Fannie M. Watson had since the death of Dr. Watson paid all taxes upon said lands, and that from the death in 1884 of Mrs. Abbie T. Watson, the first wife of Dr. Watson and the mother of the appellants, up to the date of Dr. Watson's death, all taxes had been paid by Dr. Watson, whose sole devisee was appellee Mrs. Fannie M. Watson, and that therefore appellants' claim for rents was not as great as the equitable claim of Mrs. Fannie M. Watson against them for taxes during the period of years extending from the death of Mrs. Abbie T. Watson.

Appellants claimed, however, that all claim for taxes and improvements prior to the years 1913 had been adjudicated by decree of the chancellor in the former case, and that the claim for taxes for the years between the death of their mother and the death of their father had been offset by the rents to which appellants would have been entitled for said years, and that therefore any claim of appellee Mrs. Fannie M. Watson for taxes paid by her or Dr. Watson during the years prior to 1913 had been adjudicated.

Decree reversed, and case remanded.

E. F. Noel and Boothe & Peeper, for appellant.

Elmore & Ruff and J. H. Watson, for appellee.

OPINION

HOLDEN, J.

In the original partition suit filed by the instant appellants there was a decree of the chancery court favorable to them, and upon appeal to the supreme court the decree was affirmed. When the mandate of this court reached the lower court, the present proceeding now before us was started by the instant appellants for the purpose of enforcing payment of damages and rents due instant appellants which were secured by a certain supersedeas bond executed by the appellants in the first appeal. When this proceeding was begun in the lower court in accordance with the affirmance of the decree by the supreme court, the instant appellees, who were defendants in the original suit, filed a claim of offset against the appellants' claim for damages and rent, said offset being a claim for taxes paid on the land by Mrs Watson, one of the appellees here now, for about twenty-eight years prior to the time that the original decree was obtained. Upon a hearing by the chancellor of the matters then and there presented by the proceedings and pleadings, the chancellor allowed the offset of the taxes paid for...