Walker v. Williams

• Decision Date: 25 April 1904
• Citation: 84 Miss. 392,36 So. 450
• Court: Mississippi Supreme Court
• Parties: IDA WALKER v. ELISHA B. WILLIAMS ET AL

36 So. 450

84 Miss. 392

IDA WALKER v. ELISHA B. WILLIAMS ET AL

Supreme Court of Mississippi

April 25, 1904

FROM the chancery court of Lauderdale county. HON. STONE DEAVOURS Chancellor.

Ida Walker, appellant, was complainant, and Williams and others appellees, defendants in the court below, in the supplemental proceedings out of which the litigation sprang. The facts were these:

One John T. Ball died intestate in 1890, leaving some lands in the city of Meridian. His heirs were his son, A. H. Ball, two daughters, and a grandson. One of the daughters--Lula--married a Mr. Wilkins, and the other married a Mr. Allien. In May, 1891, Mrs. Wilkins, Mrs. Allien, and E B. Williams, the grandson, filed a bill for the sale of the real property for division of the proceeds. A. H. Ball, who was made defendant to the bill, answered the bill, admitting its allegations, and joined in the prayer for a sale of the lands. The prayer of the bill was granted, and a commissioner appointed to make the sale. The commissioner sold the land but at such a low price that the court refused to confirm the sale, and ordered it resold. This was in 1893, and nothing more was done in the matter until October 6, 1899. A. H. Ball was married to Ida Walker, the appellant here, and after their marriage they lived in a residence on part of this property for four years, and during that time she lent A. H Ball, her husband, $ 1,700 and took a deed of trust on his undivided interest in his father's estate, embracing the lands in controversy. This deed of trust was foreclosed in 1894, and the property was bought in by appellant. Appellant, the wife of A. H. Ball, afterwards sued and obtained a divorce from her husband, and took her maiden name, Ida Walker. In October, 1899, she filed a supplemental bill, upon which this litigation arose, reciting the unexecuted decree for the sale of the real property of the John T. Ball estate, and setting out a description of the property and her title which she acquired under the trustee's sale, and prayed that the decree be modified so as to adjudge her a distributee, and that another commissioner be appointed to sell the property for partition. The appellees, E. B. Williams and Lula B. Wilkins and Anna Allien, were made parties defendant to the supplemental bill, which they answered. They admitted that the decree of sale existed, and all the averments in reference to it; admitted appellant's title to one-fourth interest of the estate, but alleged that all the real property had been sold and conveyed by the heirs after the decree for the sale except lot 3 and block 8 of Ball's survey; that block 8, on which the Ball residence stood, had been by the heirs, including appellant, incumbered by a deed of trust to secure a loan of $ 800 from John Kamper in 1896, and that in 1899 it had been foreclosed, and that appellee Williams had bought it. Appellant then filed an amended supplemental bill, in which she charged that the sale of block 8 under the deed of trust and the purchase by E. B. Williams was fraudulent and void, and asked that it be set aside, and the property be decreed subject to partition. Defendants answered this bill, setting up a claim for taxes, and claimed rent from complainant from the date she acquired an interest in the estate until she left it in 1898, she having lived in the residence with her husband, A. H. Ball, during this time. There was a decree entered setting aside the sale of block 8 made under the Kamper deed of trust, which was purchased by E. B. Williams, and the property decreed subject to sale for partition, and a commissioner was appointed to sell the land. The charges for the use and occupation of the residence, the claim for taxes advanced and the amount of the Kamper note, were referred to a master to state the amount of each separately, with interest thereon, and he was instructed to report to the court, and to charge appellant for the four years' use and occupation of the residence, with six per centum per annum, and to charge the defendant Williams with rent at fifteen dollars per month for the time he occupied it, with six per centum. The land was sold, and bought by E. B. Williams. Complainant filed objections to her interest in the estate being charged with any part of the Kamper debt, and any part of the taxes, and for any use and occupation of the land, or any part of the costs. The court overruled these objections. There was a final decree charging the estate with the repayment of the Kamper debt, and the taxes that had been paid, and the costs of the court, charging complainant for use and occupation of the residence for the time she occupied it with her husband, and also charging E. B. Williams for use and occupation of the residence, and refusing to allow any attorney's fees to complainant. From that decree complainant appealed to the supreme court.

Affirmed.

Hardy & Cook, for appellant.

The fact that a co-tenant in possession bought property at a trustee's sale for $ 906 that is worth $ 4,500, having concealed from a nonresident co-tenant all knowledge of the time and place of sale, and after it was made failed to advise his co-tenant of the fact, failed to offer the privilege of contributing her share of the purchase money, and so to retain her interest, is unmistakable evidence of a fraudulent purpose, especially so when he sets up his purchase of so valuable an estate for such an insignificant sum in bar of the claim of his nonresident co-tenant. The chancellor took this view of it, for he set aside the sale under the Kamper deed of trust and declared it void.

"Every one who engages in a fraudulent scheme forfeits all right to protection either at law or in equity." The reason of the rule is given by the court in the following language: "This would be to hold out inducements to engage in schemes of fraud, as nothing could be lost by a failure to effectuate the entire plan." Stovall v. Farmers & Merchants Bank of Memphis, opinion of Chief Justice Sharkey, 8 Smed. & M., 316.

Williams was not entitled, therefore, under this rule of law, to have the money paid out refunded to him. McLoskey v. Gordon, 26 Miss. 273.

The charge against the estate for taxes of 1896, 1897, 1898, 1899, and 1900, with interest amounting to $ 808.20, and that this sum be paid to appellees to reimburse them for money advanced by them with which to pay the taxes, was glaring error. Sec. 1930 of the code makes it the duty of the administrator to pay the taxes.

The next error complained of is the charge against appellant of the sum of $ 992.82 for use and occupation of the residence from July, 1894, to June, 1898.

The general rule on the subject of domicile during coverture is stated, 10 Am. & Eng. Ency. Law (2d ed.), 32, as follows:

"By marriage a woman, whether a minor or an adult, loses her domicile and acquires that of her husband, and that during coverture the domicile of the wife continues to be that of the husband and changes with his."

In the note to this text a vast number of authorities are cited, embracing English, Canadian, and American cases.

The following Mississippi authorities are cited: Hairston v Hairston, 27 Miss. 704; Bate v. Incisa, 59 Miss. 513; Suter...