Hebron v. Kelly, 75 Miss. 74

Hebron v. Kelly

75 Miss. 74 | Miss. | 1897

Woods, C. J.,

delivered the opinion of the court.

In the year 1879 Mrs. Mary Leggett died, leaving a will by which she devised to the appellants, her nieces, and then minors of tender years, a lai’ge part of Greenfield plantation. Greenfield was then incumbered by mortgage for about $1,400, to secure the note of the decedent given to Jefferson College. The will directed the property of the testatrix, real and personal, should be kept together, and that Greenfield be cultivated or leased until said mortgage debt and all other debts of the testatrix herself should be paid off. At the date of the execution of the will, and at the date of the death of the testatrix, neither of the two promissory notes of the testatrix to Jefferson College were due, having each been made March 22, 1879, and due respectively two and three years after date.

By her will the testatrix further directed that after the mort*77gage debt and her own other debts had been paid off, as there-inbefore mentioned, her executor should pay about the sum of three thousand dollars to G. Malin Davis, in settlement of a debt due him (Davis) by the late husband of the testatrix, Dr. H. H. Leggett. ,

From the death of Mrs. Leggett, in the year 1879, until the death of Thomas H. McCowen, the father of complainants, in January, 1883, the complainants, with their said father, occupied the Greenfield plantation, and after the death of the father the complainants continued for many years to occupy the plantation with their uncle, one A. H. Cook.

In October, 1896, appellants exhibited their bill in the chancery court of Adams county against Stephen Kelly, executor of the will of G. Malin Davis and guardian of George Kelly, a minor, and said minor, George Kelly, individually, seeking to have George Kelly declared the trustee Qf the legal title to Greenfield, and to require a conveyance to complainants of the same, and for an accounting, etc.

The bill states and charges the facts just stated by us herein-before, as to which there is no controversy. The bill then avers that Davis was a warm personal friend of McCowen and of his infant children, these complainants; that Davis was a lawyer of ability, also, and that he ivas the attorney and legal adviser of their father and of themselves, and that in his ability and integrity the complainants and their father reposed unlimited confidence, and, being himself interested in Greenfield plantation, under Mrs. Leggett’s will, the entire management of their, complainants’, interests' in Greenfield was left entirely in the hands of said Davis, to bo managed as he deemed best. The bill charges that Davis advised that the Jefferson College mortgage, then amounting to about $1,600, be allowed to be foreclosed, and that the Greenfield plantation be sold under said mortgage and bought in for complainants, he, Davis, agreeing to advance the money to buy the notes secured by said mortgage for complainants, and to take the notes to himself, in his *78own name, as security for the money so advanced, and then to foreclose the mortgage and to lend and advance complainants the money to bid in the plantation at the foreclosure sale, and, to secure himself for such purchase-money and for the $3,000 bequeathed him by Mrs. Leggett’s will, Davis was to take the title to the plantation in his own name, because, as is averred^ the complainants were minors, and were unable to execute a mortgage, valid in law, to secure the money so to be loaned or advanced. The plantation, according to the averment of the bill, was worth $15,000, a sum far greater than Davis’ bequest of $3,000 and the sum due on the mortgage debt. This plan, as charged by the bill, was accepted readily and in perfect confidence by complainants and their father, and, accordingly, Davis filed his bill to the June term, 1882, of Adams chancery court (he having become the purchaser of the two notes secured by the mortgage on the day of the maturity of the last one) to foreclose the mortgage in his own name, and that a decree of sale was then entered in that court. At the said sale Davis had complainants, then minors of tender age, accompany him in person, and so obtained their presence at the sale and created the impression that the land was being bid in for complainants under the said sale, in order to prevent other persons from running the price to be bid up beyond the mortgage debt and the $3,000 bequest to him, and that he did thereby prevent opposition in bidding, when he, Davis, became the purchaser at and for the sum of $2,470.95.

The bill alleges that in the agreement thus to save the plantation for complainants, Davis stipulated that for the money lent and advanced by him to purchase the two notes, and the purchase price of the plantation under the- foreclosure sale, he was to receive twenty bales of cotton per annum for five years — in all, one hundred bales — in full payment of all indebtedness held by him against said plantation for money lent and advanced by him for complainants, as well as for the $3,000 bequest, and that complainants and their father, the said Thomas H. Me-*79Cowen, agreed with Davis to pay said cotton, the same being then worth about $50 per bale, aggregating about $5,000.

The bill then charges that at the December term, 1882, of Adams chancery court, a confirmation of the said foreclosure sale was had, and Davis received a conveyance to the plantation, and that before Davis had advanced and loaned any money to complainants in payment of his bid at the sale, and before confirmation of said sale was had, their father, Thomas H. McCowen, had actually paid for complainants, to Davis, the first installment of twenty bales of cotton contemplated in their agreement, of the aggregate value of about $1,200; whereby, after such payment, there only remained due on the mortgage debt about $400; and after the death of their father, in January, 1883, the uncle of complainants, the said A. H. Cook, came upon the plantation with and for complainants, and completed the payment of said one hundred bales of cotton under their contract and agreement with Davis. The bill shows that Davis died in the year 1884, and that said George Kelly is his heir and legatee. There are other averments of the bill which need not now be adverted to. The answer of the respondent, it is sufficient to say, denies all the material averments of the bill. On the hearing some evidence was offered which directly supported those charges of the bill on which appellants relied for a favorable decree. That there was, substantially, the agreement between Davis, on the one side, and complainants and their father on the other, as to the lending or advancing of the money necessary to pay off the notes secured by mortgage, and the purchase of the place at foreclosure sale for complainants, as averred in the bill, is quite clearly shown, and especially by the evidence of the witnesses, A. H. Cook and Louisa Roper.

If the testimony of these witnesses can be relied upon (and we have failed to find any reason for at all discrediting it), the agreement to lend and advance the necessary money by Davis, for the purpose of buying in and saving the plantation for the two little girls, and the agreement to repay him in five install*80ments of twenty bales of cotton per annum, and until lie has received about the sum of $4,500, may be said to fairly appear to be proved; and the evidence of Cook goes further and shows, or strongly tends to show, that the one hundred bales of cotton were paid to Davis, or his representative, as agreed, hut that this cotton did not amount to $4,500 in value is apparent. It is to he noted, too, that the only witnesses who were examined as to the value of Greenfield in 1882, testify that the property was then worth $9,000 or $10,000, while there is no controversy as to the fact that Davis .paid, at the foreclosure sale, about $2,400 only.

It appears to us that Davis was the trustee for complainants. About $800, necessary to pay off the mortgage debt of $1,600, was in Davis’ hands before the sale was confirmed and before he acquired title. ' This $800 was not the money of Davis, but was the product of cotton raised by the father of complainants on Greenfield, which property had been, in large part, devised by Mrs. Leggett to her little nieces, these complainants. If, however, it be thought that Davis really loaned and advanced the whole amount necessary to make the purchase, and to carry out the agreement between, himself and the complainants and their father, the rights of complainants to assert their trust will not be thereby affected. Whether the money, in part, was not that of Dav.is, or was all that of Davis, on the proofs in the case, would seem to be immaterial. In either case Davis took title in himself as trustee for complainants. See Robinson v. Leflore, 59 Miss., 148; Barton v. Magruder, 69 Miss., 462.

Reversed and remanded.