Bomer Bros. v. Warren County

60 So. 328 | Miss. | 1912

Reed, J.,

delivered the opimon of the court.

The county of Warren filed a bill seeking to recover from the appellants the value of certain timber cut, destroyed, and removed from a certain sixteenth section of land. We give in substance the facts stated in the bill.

Mrs. Annie M. Cowan, one of the appellants, is a lessee of the school land in this ease. On February 1, 1894, by instrument duly executed and recorded, she attempted to convey to I. M. Darnell & Son the standing timber on the land. On April 23, 1898, Darnell & Son, by instrument duly executed and recorded, conveyed all of their rights in the timber to Bomer Brothers, appellants herein. Mrs. Cowan executed to Bomer Brothers, two instruments, duly recorded, for consideration in each instance, twice extending the periods in which the timber might be cut and removed. The bill charges that, during the period of six years after the assignment by Darnell & Son, Bomer Brothers entered upon the land and cut and removed therefrom valuable timber, and that during the same period appellants Mat Cox, George C. Love, and W. K. Canaday, acting under some supposed right conferred upon them, either by Bomer Brothers or Mrs. Annie M. Cowan, entered in and upon the land, and cut and removed a great deal of such timber, and that all of defendants destroyed large quantities of valuable timber, cutting the same down, and leaving it to he upon the ground and decay. An estimate is given of the value of timber cut and damages to the freehold from the unlawful and unwarranted cutting thereof, to be the sum of four thousand dollars.

It is charged that Mrs. Cowan, the lessee, is guilty of waste, and that the appellants, each and all, are jointly hable with her for so much and such part of the damage as they respectively caused, and that the claims against the several appellants are practically identical, involving the same principle of law and same state of facts. It is averred in the bill that the county has been unable to ascertain the quanity and kinds of the timber on the land cut by each of the appellants, that the facts are exclusively within the knowledge of the appellants, and discovery is sought by the bill to obtain information showing the timber so cut by each appellant, to the end that proper recovery may be made from each.

Judgment is asked against Mrs. Cowan for the full amount, and against each and every one of the other appellants for such proportional part of the damage to the freehold as has resulted from the cutting or destruction of timber by each respectively. A demurrer to the bill was filed and overruled by the chancellor.

The jurisdiction of the chancery court in this case rests upon the proceeding for discovery. The county is making an effort to discover facts which are within the knowledge of appellants. The very fact that the timber was destroyed, not by one party, but by several, alleged in the bill to be the appellants, that the county has been unable to obtain information showing the amount cut by each, that the amount so destroyed by each is exclusively in the knowledge of appellants, and that the disclosure of the same will enable the county to make proper recovery from each, is sufficient grounds for discovery in this case. The obtaining of this information is material in the case, to the end that appellee may make proper recovery from each party for waste committed by each to the freehold of the land. From the full presentation of this ease in the bill, it is clear that the chancery court has jurisdiction for the purpose of discovery.

It is proper to join the several appellants in this proceeding for discovery. In 14 Cyc. 311, we find the statement that, “where several persons are participants in a fraud on plaintiff, he may file the bill of discovery against all of the participants jointly, although such persons have distinct interests and participate in different degrees in the fraud, provided the fraud consisted of one connected series of acts.” In the case of Robinson v. Davis, 11 N. J. Eq. 302, 69 Am. Dec. 591, we find the following announcement of the law on this subject: “The charge is that they combined with the other defendants to commit the fraud. A complainant may properly make every one a party who is participator in the fraud. He has the right to do this for the purpose of discovery.” The principle shown in the quotation we have just made will control in the present case.

Seeing that the chancery court has jurisdiction in this case for the purpose of discovery, under the well-settled rules of law in this state it may continue in the jurisdiction so obtained and exercise the same to grant the further relief sought in this case; and this is so, even though the appellee may have its legal right and remedy in a suit at law. In the case of Woods v. Riley, 72 Miss. 73, 18 So. 384, it is stated: “If a court'of law first acquires jurisdiction, equity may, without awaiting exhaustion of the legal remedy, afford auxiliary aid; if the court of equity first acquires jurisdiction, it may. proceed to final and complete relief, though the titles and rights involved are of a legal, as distinguished from an equitable, character.” In Lumber Yard v. R. R. Co., 96 Miss. 116, 50 So. 445, Ann. Cas. 1912A, 801, in which the case of Woods v. Riley, supra, is referred to and approved, it is decided that: “Where the chancery court takes jurisdiction for the purpose of discovery, it may grant full relief in the case, under the power conferred by Constitution 1890, section 160, providing that, where the court heretofore exercised jurisdiction auxiliary to courts of common law, it may exercise such jurisdiction to grant the relief sought, although the legal remedy may not have been exhausted, or the legal title established by suit at law.”

We see no reason, therefore, why the chancery court cannot properly try and decided this present case; for under the law the court of equity has full power to completely dispose thereof. Besides, it seems clear to us that the appellants, each and all of them, can have their rights carefully and fairly adjudicated in the present proceeding. The decree of the court of equity may be adapted to all varieties of circumstances which may arise in the case, and be adjusted to all the rights of the parties in interest.

We believe that the chancellor was correct in overruling the demurrer, and the case is affirmed, with leave to appellants to plead or answer the bill within sixty days after the filing of the mandate in the chancery court.

Affirmed.