Burns v. Arrington

Dec 7, 1964

43126

Versions:169 So. 2d 831

251 Miss. 247

1964 Miss. LEXIS 345

Patterson, J.

This is an interlocutory appeal from an order of the Chancery Court of Wayne County, Mississippi, sustaining a general demurrer to a cross bill.

The suit was brought by the heirs at law of Pink Arrington, deceased, as complainants against B. C. Burns, defendant and cross complainant, for the purpose of having a deed absolute on its face declared to be a mortgage. The defendant answered the bill of complaint and filed a cross bill which alleged an oral agreement *249 by and between Pink Arrington, deceased, and tbe defendant relating to the subject properties. A general demurrer was interposed to tbe cross bill which was sustained and an interlocutory appeal was granted to tbe cross complainant over tbe protest of complainants to tbis Court to settle tbe controlling principles of law applicable to tbe case.

Tbe issue to be determined by tbe court on tbe demurrer to tbe cross bill was whether tbe agreement as set forth in tbe cross bill was sufficient, when considered in relation to a warranty deed held by tbe cross complainant to tbe lands in question, to alter tbe same from a deed absolute on its face to tbe status of a mortgage. Tbe principles of law controlling tbis situation are thoroughly settled in tbis state. Mississippi Code Annotated section 272 (1956); Dunn v. Dedeaux, 243 Miss. 187, 137 So. 2d 822 (1962); Conner v. Conner, 238 Miss. 471, 119 So. 2d 240 (1960); Bethea v. Mullins, 226 Miss. 795, 85 So. 2d 452 (1956); Emmons v. Emmons, 217 Miss. 594, 64 So. 2d 753 (1953); Nix v. Nix, 210 Miss. 821, 50 So. 2d 396 (1951); Jordan v. Jordan, 145 Miss. 779, 111 So. 102 (1927).

Interlocutory appeals to settle all tbe general and controlling principles of tbe case are governed by Mississippi Code Annotated section 1148 (1956). We have declared that such appeals should not be granted where principles applicable are well settled unless in a given situation difficulty of application arises. Russell v. Crumpton, Sheriff, 208 Miss. 433, 44 So. 2d 527 (1950); Hardy v. Candelain, 204 Miss. 328, 37 So. 2d 360 (1948); Stirling v. Whitney Nat. Bank, 170 Miss. 674, 150 So. 654 (1933); Bierce v. Grant, 91 Miss. 791, 45 So. 876 (1907). Since no difficulty of application of tbe controlling principles of law involved is apparent, we are of tbe opinion that tbis appeal was improvidently granted and it is therefore, dismissed.

Appeal dismissed.

*250 Kyle, P. J., Ethridge, McElroy, and Jones, JJ., concur.