Alcorn v. Alcorn, 76 Miss. 907

76 Miss. 907 | Miss. | 1899

Whitfield, J.,

delivered the opinion of the court.

This appeal was granted to settle the principles of the cause. The only point for adjudication, however, is the propriety of the action of the chancellor in retaining the injunction till the final hearing. And all that we shall say will be understood as addressed solely to the solution of that question. We have given this record a most thorough consideration, and from it are satisfied that the appellant’s counsel puts his contention too strongly when he characterizes the injunction as having for its sole object the putting the appellant out of, and the appellee into, the possession of the Eagle’s Nest plantation.

It is to be noted that, prior to filing the bill, appellants went to Memphis, and have not since been on the property involved!

The difficulty with counsel’s position is that the character and quality of possession set up by appellant now, since the death of her husband, from which she says she is being shut out, is not at all the character and quality of possession set up by her and her husband when he lived. It is clear that he never claimed under the alleged deed from his father, of date April 28, 1894, which was not put to record for some three years. And it is also satisfactorily shown that her husband did not claim, under the instrument of date November 8, 1895, as absolute owner of the property. We are not speaking of how these things may turn out to be on final hearing, on full proof; but on the record as it now stands, it is clear to us that the alleged deed of April 28, 1894, was void for incapacity on the part of Governor Alcorn to execute it, and that if the instrument of November 8, 1895, had any other effect than' to empower James Alcorn to mortgage the property to pay debts, etc., and passed the legal title to him, it so passed it in trust, the whole beneficial interest remaining in Amelia W. Alcorn, his mother.

The facts in testimony in connection with the instruments, giving them this character, and the only possession James ever set up being of this character and quality in strict recognition of his mother’s life estate in not one hundred acres, but the whole of that part of Eagle’s Nest devised to her by her husband, it is not for the appellant, the daughter-in-law, now to change the character and quality of that possession, for the time it lasted, into an adverse holding. Because since her husband’s death and the record of the deed of April 28, 1894, she now elects to claim all save one hundred acres as hers and her son’s under the instruments referred to, now for the first time invoked to show title in her husband, it does not at all follow that this newly asserted character of possession can, by some magic ex post facto operation, be imputed to a possession of a wholly different kind held by her husband till his death.

The true view of the bill is that it seeks to preserve the possession of the appellee as it was, to maintain the status as to possession as it had been between mother and son until the chancery court, having full jurisdiction of the subject-matter, shall finally dispose of the rights of the parties. In this view the principles of the cases of Woods v. Riley, 72 Miss., 73; Jones v. Brandon, 60 Miss., 560, 561; Marble Co. v. Ripley, 10 Wall., 354; Beaty v. Kurtz, 2 Peters, 566, and of the cases cited in note at page 375 of 1 Am. St. Rep., are decisive of the correctness of the action of the learned chancellor. It was proper to look to the amended bill, though the amendment was made after the motion to dissolve was made. Conover v. Ruckham, 34 N. J. Eq. Rep., 297.

Many considerations are influential with a chancellor in determining his action as to dissolving an injuction, or retaining it, till full proof on final hearing. As to whether the complainant will suffer more from the dissolution than the respondent from its retention: Frieton v. Grannon, 36 N. J. Eq. Rep., 221—as, where the bill shows a probable right and probable danger to that right, unless the injunction be retained; and many other considerations addressing themselves to the sound judicial discretion of the court applied to dissolve it. Very wide latitude, necessarily, must be allowed the trial court. The effectuation of right, the vindication of justice, is the object, as everywhere, in judicial proceedings. And when fraud is charged, the reasons for retaining the injunction are greatly strengthened. Hollis v. Williams, 43 Ga., 217.

Once more remarking that our observations are addressed merely to the action of the chancellor in retaining this injunction, and that whilst it is true that mandatory injunctions are granted with great caution prior to full hearing, but are to be granted prior thereto, nevertheless, ‘ ‘ where the exigencies of the case are great” (see note to 20 L. R. A., 161), and specially that we rest our decision in this case upon its very extraordinary facts, we hold that the injunction was properly retained until final hearing.

Affirmed.