215 Miss. 78 | Miss. | 1952
Appellant sued the appellees in the Chancery Court of Union County, and appeals from an adverse decree. The appellant alleged in her original bill that she was the owner of a three-room house in the City of New Albany which she occupied as her home, and which was in a bad state of repair; that the appellee, Leroy Collins, was an intelligent, glib-mouthed, sanctified preacher in charge of the Church of God in New Albany, and that she was a member of his flock; that she was old and senile, possessing the mind of a child of the age of twelve years, incapable of understanding and appreciating the nature and effect of a business transaction, and readily susceptible to the influence of the preacher because of their church relationship; that in the spring of-1945, appellee Collins approached her and proposed to repair and remodel her house if she would permit him and his family, consisting of his wife and seven children, to occupy the house with her for a period of five years; that she acceded to the proposal, not understanding or appreciat
The appellees answered, specifically denying the several allegations of. the original bill. They averred in their answer on the contrary that the appellant approached the appellee Collins and proposed that if he would repair her house she would permit him and his family to live with her in the house rent free so long as both of them should live and would will the property to
The chancellor found that the appellant was competent to enter into the agreements with appellee Collins; that the entire transaction was in good faith, and that
(Hn 1) The evidence on the issues raised by the pleadings was conflicting and the chancellor resolved the evidence in favor of the appellee Collins. The chancellor’s finding is amply supported by competent evidence and we are not warranted in disturbing it.
Appellant, however, adopts as the facts of the case the findings of fact by the chancellor and contends that the chancellor misapplied the law to the facts. She argues that the chancellor’s findings of fact disclosed a breach of contract by the appellee Collins and that for such breach of contract he is entitled to no relief on his note and deed of trust, and in any event, should be charged with and have offset against the amount of the deed of trust rent at the rate of $20.00 per month for the period he and his family occupied the house. We are unable to agree with this contention of the appellant. The facts as found by the chancellor do not disclose a breach of contract by the appellee Collins. (Hn 2) On the contrary, the chancellor found that the agreements were entered into between the parties in good faith; that the appellant was mentally competent to make the agreements; that the appellee Collins offered to take the appellant to Kentucky with him, and that under the agreement of the parties, which the chancellor held to be valid,
(Hn 3) There is another reason, however, why the contention made by the appellant' on this appeal cannot be sustained. The pleadings and the evidence disclose that the case was tried and presented to the chancellor on the theory that all agreements between the parties and instruments executed pursuant thereto were void because of the mental incapacity of the appellant, and because the appellee Collins perpetrated a fraud upon her in that he took advantage of her weakened mentality and wrongfully persuaded and induced her to execute the trust deeds. Appellant now seeks to present the case to this Court on an entirely different theory, namely, that the contract between the parties was valid and that the appellee Collins breached it. This was not the case which the chancellor tried and decided. Appellant has now chosen in this Court an entirely different line of battle from that chosen in the court below, and we think the theory of the case as now presented to us on this appeal is not properly before us for review. I. C. R. R. Co. v. Sumrall, 96 Miss. 860, 51 So. 545; Byrd v. Board of Supervisors, 179 Miss. 880, 176 So. 910; Picard v. Waggoner, 204 Miss. 366, 37 So. 2d 567; City of Biloxi v. Lowery, 179 Miss. 364, 377, 175 So. 200; Parker v. California Co., et al., 54 So. 2d 174.
In the case of I. C. R. R. Co. v. Sumrall, supra, the Court said: “The plaintiff chose her line of battle in the court below. She stood on the ordinary negligence of the railroad company. She never hinted at wilfulness and wantonness on the part of defendant. She stood for compensatory damages only. All her instructions were along that line, and it is too late now to attempt to shift
It follows from the foregoing views that the decree of the court below should be and it is affirmed.
Affirmed.