104 So. 696 | Miss. | 1925
Lead Opinion
The bill further charges that the defendant, J.W. Cutrer, without any ground or right, brought an ejectment suit against Abels in the year 1907; that complainant at that time was a citizen of Pike county, Miss., but was not made a defendant in the ejectment suit, as it was desired that he should not know anything about the pendency of said suit; that judgment was taken by consent of Abels in favor of Cutrer by default; that, had he been made a party to the suit, he could have produced proof which would have prevented a judgment; and that the whole ejectment suit was an effort by strategy to obtain possession of the land.
The bill further alleges that the record discloses no title or right or claim in the defendants in said lands, and that their claim of title, the nature and character thereof, was entirely unknown to complainant; that any claim they might have was null and void; and prayed that whatever title they might assert might be canceled as a cloud, doubt, and suspicion on complainant's title for possession, for a cancellation of any claim, and for quieting the title.
Mrs. Goss, nee Holloway, filed her answer, denied all of the material allegations of the original bill, filed a cross-bill against the complainant, W.C. Bacot, in which she alleged that W.C. Bacot is the brother of her late husband, J.R. Bacot, and that Bacot resided in the southern part of the state; that W.C. Bacot, the complainant, had never resided in Quitman or Coahoma counties *131 — never had any abode in either of said counties; that J.R. Bacot, having become insolvent, was unable to do business or own property in his own name.
She further alleged that by her industry and economy she acquired means, and removed with her husband, J.R. Bacot, to the city of Clarksdale, Coahoma county, to engage in a mercantile business for herself; that before so doing she secured from the father of her late husband, the late William Bacot, authority to transact business under the firm name and style of W. Bacot Co.; and that, in pursuance of said agreement, she engaged in a general mercantile business in Clarksdale, Miss., under the firm name of W. Bacot Co.
She claimed that all of the assets of this business became and were her separate property, and that this fact was known to the complainant and to the children of William Bacot; that while this business was being so conducted William Bacot died intestate, leaving as his heirs at law certain children, of whom the complainant was one; that after his death the heirs, including the complainant herein, executed to her a written transfer of their interest in said business and authorized her to continue to own and operate said business under said firm name of W. Bacot Co.; that later in 1903, W. Bacot Co. became insolvent, and proper proceedings were had culminating in the adjudication that W. Bacot Co. was insolvent, and that she was thereafter discharged as a bankrupt and released from the indebtedness so contracted; that before her discharge as a bankrupt she, in contemplation of becoming the purchaser from the trustee of the assets and property of the firm of W. Bacot Co., secured permission from W.C. Bacot, complainant herein, to use his name in the purchase of same; and that, in pursuance of said agreement, she did purchase said property in complainant's name and paid the purchase price therefor and took a bill of sale, transfer, and deed therefor in the name of W.C. Bacot, and that neither then nor after did the complainant ever have any interest *132 in any of the said property. She alleged that subsequently she continued the conduct of the business and held all of her property in the name of the complainant.
She further alleged that a part of the property owned by her was the land in controversy, and that the lands were bought for her by her late husband, J.R. Bacot, while acting as her agent, causing the title to be taken in the name of the complainant; that the cross-complainant relied on and had the utmost confidence in her husband, did not doubt or question his fidelity to her interests, and that he acted in connection with the business as her agent, and that all of the money paid by her husband to the railroad company was her money.
She further alleged that she took possession immediately upon the execution of the agreement to purchase, March, 1898, and made all improvements and paid all taxes. She further charged that, if complainant had any kind of title, he held such title for her benefit and that he should be divested of same and same vested in her, to the end that she be seized and possessed of perfect title in the land.
She further alleged that J.R. Bacot died in 1907, leaving her as his sole heir at law who was then his wife, there being no children; that at his death she became the owner of all the property owned by her husband in his lifetime. She alleged that any payments made for said lands were on her behalf and for her benefit, and that in so doing her husband was her agent.
She alleged that she immediately entered upon said land, and had been in the open, notorious, uninterrupted, adverse possession of the lands for more than ten years, and for that reason was entitled to have the title thereto confirmed as against the complainant; and prayed that the title to the property be quieted and confirmed in her, and that the cross-defendant's title be canceled as a cloud upon her title.
The defendant J.W. Cutrer adopted the above answer. *133
W.C. Bacot filed his answer thereto, denying the material allegations of said crossbill.
The bill in this case was filed on April 7, 1908, and the decree of the court below is dated April 11, 1921, and has but recently been submitted to this court for decision. Both the complainant and the defendant appeal here by direct and cross appeal.
Having stated the issues presented by the pleadings, we will content ourselves by saying that this is a voluminous record. Many objections were made to the testimony on both sides, which are not of sufficient importance to deserve special mention, as we find no reversible error in the ruling of the court below.
The chancellor decreed that the title to the land should be quieted and confirmed in Mrs. Bacot, the defendant, and that she should pay certain taxes which had been paid by the complainant, the amount of which, and each item and the interest thereon, is set out in the decree of the court below.
The issue of facts presented by these pleadings was controverted on all material points, either directly or by circumstances, and, the chancellor having heard the witnesses and observed their demeanor on the witness stand, we do not feel warranted in disturbing his findings on the main issue.
However, the decree in this case provided that Mrs. Bacot pay to the complainant the sum of one thousand seven hundred forty-four dollars and forty-nine cents, and provided that no deed should be executed in favor of Mrs. Bacot, the defendant, until she had paid the above sum, and decreed that a lien on the said land existed until said sum was paid or tendered.
It will be noted from this statement that no provision is made for a sale of the land if Mrs. Bacot should see fit to remain in possession of the land and not make the payment without additional litigation. We think this was error. We think the decree should have provided that a commissioner of the court be appointed to advertise *134 and sell said land within a reasonable time allowed to defendant to pay the said sum, said sale to be conducted as other chancery court sales; and for the purpose of extinguishing the lien decreed by the court, and to the end that the court below may appoint a commissioner to advertise and sell said land in the event the defendant shall not promptly pay to complainant said judgment and interest, this case is reversed, and for that purpose only, and for said purpose the case is remanded to be proceeded with in accordance with this opinion. In all other respects the decree of the court below is affirmed.
Affirmed in part; reversed in part.
On motion to retax costs. Motion dismissed.
For former opinion, see
Addendum
This cause was decided at the last term of this court; the decree of the court below being reversed in part and costs of the appeal adjudged against the appellee.
After the adjournment of the court, and at the expiration of the time allowed by rule No. 14, for the filing of a suggestion of error, the appellee filed a motion herein styled "Motion to Retax Costs," the prayer of which is that the court retax the costs of the appeal and tax the same against the appellant.
This motion, it will be observed, is that the former judgment herein be set aside in so far as it adjudicates court costs and that a different judgment be rendered relative thereto. Consequently, it is, though designated a motion, a suggestion of error, and under rule No. 14 of this court cannot be considered, unless it comes within the provisions of section 968, Code of 1906 (Hemingway's Code, section 677), which the appellee invokes. This statute is as follows:
"Costs omitted in taxing the bill of costs may be taxed at any time upon application to the court; but if the costs, as taxed before, have been paid, the party against whom the retaxation is sought shall have five days' notice of the application; and any erroneous taxation of costs may at any time be corrected by the court on application of the party aggrieved, five days' notice of the motion being given if the rights of any other than the clerk who taxed the costs be involved."
An award of costs is an act of the court, but the taxation thereof is a mere ministerial act to be performed, in most jurisdictions by the clerk of the court. 15 C.J., 176. In some jurisdictions costs are taxed by the clerk, and the amount thereof is inserted in the judgment, but the practice in this state, under section 969, Code of 1906 (Hemingway's Code, section 678), which provides that, "when a cause shall be determined, the clerk of the court, . . . shall tax the costs of the case and make out a bill thereof," etc., is for the court to include an award for costs in its judgment without specifying the amount *136 thereof, and for the clerk to tax the costs, that is, to tax the costs, after the termination of the case by making out an itemized bill thereof, for which service he is permitted under other statutes to charge a fee and include it in his cost bill. Sections 1845, 1848, 1850, and 1851, Hemingway's Code (sections 2614, 2167, 2169, and 2170, Code of 1906). That the taxation of costs is a ministerial act, to be performed by the clerk, is expressly recognized by the provisions of the section of the Code here invoked by the appellant; that notice of a motion made thereunder need not be given, unless the rights of others "than the clerk who taxed the costs be involved." In this connectionClark v. Anderson, 2 How. (Miss.) 852, may be of historical interest. In that case an effort was made, after final judgment, to retax the costs claimed by the sheriff for services rendered by him during the progress of the trial. The court decided the cause on another ground, but stated that it is "doubtful, after final judgment rendered, whether there can be a taxation of costs." In George's Digest, p. 164, where this case is digested, it is said that "this rule would not apply now, under the practice to enter judgment for the costs generally to be taxed by the clerk." In making this comment on the case, the learned author of the Digest evidently had in mind the statute directing the clerk to tax costs after final judgment enacted subsequent to the decision of the case.
It follows from the foregoing views that this motion is not within the provisions of the statute invoked, and must be dismissed.
Dismissed. *137