Coker v. Lewis, 99 So. 561

Coker v. Lewis

99 So. 561 | Miss. | 1924

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree dismissing an original bill in equity in which the appellant is the complain*126ant and the appellees are the defendants. The error assigned is the exclusion of certain testimony offered by the appellant. The bill in substance alleges that Mrs. Nettie Coker died intestate in 1903 seized and possessed of a specifically described plantation, leaving as her sole heirs her husband, J. C. Coker, Sr., and the appellant, her son, an infant. The land was incumbered by a deed of trust executed by Mrs. Coker to Nicholson to secure the payment of an indebtedness evidenced by several promissory notes, all but one of which for four thousand dollars had been, paid prior to her death. After her death this deed of trust was foreclosed and the land was purchased at the foreclosure sale by A. J. Lewis, who died in 1918, leaving a last will and testament by which he devised the land to his four children, defendants in the court below and the appellees here. These devisees afterward conveyed the land to F. C. Lotterhos, he paying therefor in cash and, insofar as appears from the allegations of the bill, without notice of any claim the appellant or his father may have thereto. The bill further alleges: That after the death of his wife, Coker, Sr., applied to A. J. Lewis for a loan of money sufficient to pay off the remaining note to Nicholson, but Lewis refused to lend him the money unless the deed of trust should be foreclosed and the property bought in by Coker, Sr., so as to eliminate the appellant’s interest therein; he being a minor and unable to agree to the loan. That Nicholson offered to carry the loan further, but on Coker, Sr.’s, request foreclosed the deed of trust. That at the foreclosure sale the land was bid in by and the title thereto taken in the name of Lewis, so that he might hold it as a security for the payment of the money agreed to be advanced by him to Coker, Sr., with which to purchase it, and also as security for an indebtedness due to him by Coker, Sr., for supplies Lewis furnished him during former years with which to farm the land; Lewis promising to convey the land to Coker, Sr., on the payment to him of this indebtedness and the money expended *127by him in purchasing the land. That Coker, Sr., remained on and farmed the land for several years, continuing during said time to obtain supplies and advances from said Lewis. That finally the relations between Coker, Sr., and Lewis were severed, and he moved off the land and Lewis took possession thereof. The bill further alleges that the appellant had obtained a quitclaim deed from his father to his interest in the land. Lotterhos was also made a party defendant to the bill. The appellant offered to refund the money paid by Lewis for the land, and the prayer of the bill in substance is for the cancellation of the Lotterhos deed, that appellant be decreed to be the owner of the land, and for an accounting. The bill was afterwards amended so as to eliminate any claim of the appellant’s to an interest in the land under the deed executed to him by his father and to assert only a claim to a one-half interest therein which he inherited from his mother. The appellees answered denying the allegations of the bill. A demurrer to the bill by Lotterhos was sustained and the bill dismissed as to him, and the cause then proceeded to trial for an accounting by the appellees to the appellant for one-half of the money received by them for the land from Lotterhos.

On the trial the appellant offered but was not permitted to prove by Coker, Sr., the circumstances as alleged in the bill under which Lewis purchased the land at the sale thereof under the Nicholson deed of trust and the alleged agreement between himself and Lewis relative thereto; the ground of the exclusion of the testimony being that the witness would in giving it be establishing his own claim against the estate of a decedent. Section 1917, Code of 1906; Hemingway’s Code, section 1577.

In order to determine whether the testimony of Coker, Sr., would have tended to establish his own claim against the estate of the decedent, Lewis, it will be necessary for us to determine the nature and origin of the claim of the appellant. On the death of Mrs. Coker the appellant and Coker, Sr., became tenants in common of *128the land in controversy, and had Coker, Sr., purchased the land at the sale thereof under the Nicholson deed of trust the appellant would have had the right to share in the benefit thereof on the payment by him to Coker, Sr., of his proportion of the money expended by Coker, Sr., in making the purchase. Smith v. McWhorter, 74 Miss. 400, 20 So. 870; Dickerson v. Weeks, 106 Miss. 804, 64 So. 731; Barksdale v. Learnard, 112 Miss. 861, 73 So. 736. Had Lewis after purchasing the land under the circumstances sought to be proven conveyed it to Coker, Sr., the same result would have followed. In either event the appellant’s claim would have been one against Coker, Sr., for a half interest in the land. Coker, Sr., was under no obligation to the appellant to pay off the Nicholson deed of trust and had the right to permit or, in the absence of fraud, to obtain its sale thereunder. Lewis, of course, was under no such obligation to the appellant, and the mere fact that he may have declined to lend Coker, Sr.-, the money with which to pay off the incumbrance on the land, but agreed to lend him the money with which to purchase the land at a sale under the incumbrance, the title to be taken in his name as a security for the loan, did not make him a trustee thereof for the appellant’s benefit. He held it in trust, if in trust at all, but which we will assume he did for the sake of the argument, for Coker, Sr., against whom the appellant had a claim for a one-half interest therein. In order therefore for the appellant to recover here, he must establish: (1) That Lewis held the land in trust for Coker, Sr., and (2) that he (the appellant) has a claim against Coker, Sr., for a one-half interest therein. The appellant’s claim is derived through the claim of Coker, Sr., which claim must be established before any claim of the appellant against Lewis can arise. It is true that the decree sought would not inure to the benefit of Coker, Sr.; nevertheless his claim to the extent of one-half thereof, to which the appellant claims the right to succeed, would thereby be established and enforced.

*129The exclusion of Coker, Sr.’s evidence is clearly within the spirit of the statute, and we think is also within its’ letter.

Afflrmed,

On Suggestion oe Error.

Anderson, J.

It is argued that the foreclosure of the deed of trust was brought about by fraud participated in by A. J. Lewis, deceased. The contention is that the following evidence of J. C. Coker,' Sr., ruled out by the court below, would have established that fact: Counsel for appellant, in stating to the court what he expected to prove by J. C. Coker, Sr., touching the proposition of fraud in the foreclosure of the deed used this language:

“That it was generally understood in the community by all people, and generally told to every one, that the only and sole purpose of the foreclosure was to get the property in such shape that he, J. C. Coker, Sr., would be able to operate it without interference on account of the minor.”

Fraud must be directly and specifically charged and proven. There is nothing whatever in the evidence tendered and ruled out to connect A. J. Lewis, Sr., deceased, with having knowledge of or taking part in any fraud in the foreclosure which took place. The suggestion of error is overruled.

Overruled.