Hebron v. Kelly

| Miss. | Mar 15, 1899

Lead Opinion

Woods, O. J.,

delivered the opinion of the court.

An examination of all the evidence in this case satisfies us that the decree of the learned court below, declaring that the title to Greenfield plantation is vested in George D. Kelly, as trustee for complainants, is correct, and should not be disturbed by us on this appeal.

We must decline, also, to reverse the decree because of the finding of the court that $5,767.55 is the sum due from complainants on an accounting to said George D. Kelly. We should be better satisfied as to this sum if the taking and stating of the account had been referred to a master, under directions, as to the manner of stating the account, by the court, or if the court had stated the basis on which the able chancellor ascertained the sum due. It would, we think, have been better practice to refer the matter of accounting to a master; but that was not done, and no objection was interposed by either party to the course pursued. Both sides have appealed — complaining, on the one hand, that the sum found to be due is too great, and, on the other, that it is too small; but neither has been able to specify in what particulars error in this behalf was committed. Groping for ourselves, therefore, through all the evi-deuce on tbis point contained in tbe record, to ascertain wbat is the true amount due from complainants to said' George D. Kelly, we have arrived at the conclusion that the sum n^med in the decree is .substantially correct. We think, however, that the decree should have fixed some reasonable time within which the complainants should make payment of the sum found to be due said Kelly, and, on failure to so pay, that the plantation should be sold to pay the indebtedness.

The petition by George I). Kelly for a rehearing was to be granted or refused by the court in the exercise of its sound judicial discretion. To have a rehearing at the time, and under the circumstances, was not matter of right.’ The rule on the subject is thus stated in the opinion of this court in McLemore v. Chicago, etc., R. R. Co., 58 Miss., 523 : “If the infant defendant is dissatisfied with the defense which has been made for him, and wishes to make a new one, he must, in general, wait till ho has attained twenty-one before he applies; but, upon special circumstances shown, he may obtain leave to make a new defense during his infancy.” We fail to see, as did the court below, such a continuation of special circumstances as was sufficient to justify the court in giving leave to the minor to then have a rehearing. The minor had been faithfully represented by his father, who was also his foreign guardian, and had had his defense fully and ably made by chosen counsel; and the cause had been on submission for final decree for about two months before the petition for rehearing was presented in vacation, and without leave had so to do. Moreover, the minor was then within about two months of his majority. lie is now, and has been since February last, of full age, and may, of right, if he wishes, now have a rehearing, and present his case anew, and have a readjudication of his rights, if, through fraud, collusion, error, or mistake, wrong has been done him. Sec. 519, code 1892, is inapplicable to this case. The former decree was not rendered upon proof of publication only, without the appearance of the minor. He was a minor, and could not defend in person; but bis father and guardian, assisted by able counsel, bad represented his interests, and his rights did not suffer by-such representation. The right to a rehearing in this case was conferred by §§ 595, 596, Id; and the limitation of his right before arrival at majority we have already considered. We are the more confident in sustaining the decree of the court below, seeing the petitioner is now more than twenty-one, and may have his own independent action, and secure a rehearing, if willing to assume all the consequences of his own suit. The decree of the court below is modified and amended so as to require the payment of the sum due from complainants to said George D. Kelly within six months from this day; and, on failure so to do, the clerk of the chancery court of Adams county shall make sale of Greenfield plantation to satisfy said indebtedness, and complainants will be thereafter barred of their equity of redemption. Decree accordingly here.

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Rehearing

A reargumem was granted, had, and resulted as follows:

Woons, C. d.,

delivered the opinion of the court, after the re-argument.

We can add nothing to what was said in our original opinion on the subject of interest. It is still impossible to determine upon what basis the court below proceeded in stating the account, and in the finding of the sum due from the appellants to appellees.

Hicks v. Blakeman, 74 Miss., 459" court="Miss." date_filed="1896-10-15" href="https://app.midpage.ai/document/hicks-v-blakeman-7987967?utm_source=webapp" opinion_id="7987967">74 Miss., 459, is inapplicable here. That was a suit between parties who were asserting title to the property adverse to each other. It was, essentially, ejectment in chancery, and the rules governing actions in ejectment were properly applied. In the case before us, by the former decision of this court, Hebron v. Kelly, 75 Miss., 74" court="Miss." date_filed="1897-03-15" href="https://app.midpage.ai/document/hebron-v-kelly-7988037?utm_source=webapp" opinion_id="7988037">75 Miss., 74, the appellees were compelled to abandon their assertion of title to the property as bona fid,e purchasers, and assume that of trustee in a resulting trust. Practically, the appellees were placed by us in the position of a mortgagee out of possession, and the present case falls in that class to which Uhler v. Adams, 73 Miss., belongs, and. the principles announced as governing in that ease, are applicable on the present appeal.

We adhere to our original opinion and decree.