McPherson v. Richards, 98 So. 685

98 So. 685 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court..

This is the second appeal of this canse. The first opinion is reported in 125 Miss. 219, 87 So. 469, where the facts as then existing are stated. On the remand of the cause the appellants moved the court to refer the matter to the clerk and master to take and state an account — first of the improvements made on the lease in controversy by the lessees prior to April 9, 1909, being the expiration of the seven-year term; second, the reasonable rental value of said lands for each year since said date; third, of the amounts paid by each tenant each year since that date as rent including taxes; fourth, of the reasonable present value of the improvements now upon said land, showing also by whom said improvements were made and when. Whereupon the appellees, the defendants below, moved the court to grant them a rehearing on the merits and for leave to amend their pleadings, which last motion the court sustained, and evidence was taken bearing on the improvements and the value thereof made during the seven-year lease. No account being taken of the rental value of the lands since the year 1909, when the seven-year lease granted in consideration of tbp improvements expired. At the conclusion of the evidence which consisted of the original evidence and additional evidence, the court dismissed the bill of complaint and also the cross-bill, holding that it was not necessary to reform the lease as originally made. Prom which decree this appeal is prosecuted.

In the former opinion the court held that the fifteen-year lease superimposed on the seven-year lease was void because such lease could not be made until the expiration of the seven-year lease, or until the improvements contracted for in that lease had been made. The court found on the former appeal that the contract in regard to the improvements as a consideration for the seven-year lease was not complied with, that the improvements made did not comply with the contracts, and directed an accounting. The amended answer and the cross-bill sought to set up the understanding of the lessee and the members of the board then in office as to what lands were contemplated to be cleared and what houses to be erected thereon, and the additional testimony adduced was largely addressed to that phase of the suit. However, the defendants made a stronger showing on this hearing than they did on the former as to the number and value of the houses erected under the seven-year lease. In our judgment the contract is plain and unambiguous, and the proof shows a failure to comply with the contract as drawn, and the court has no right to find that the contract was complied with as understood.' The contract between the board of supervisors and other parties must be in writing and spread upon the minutes, and when so reduced to writing, and spread upon the minutes the terms of the contract govern, and the parties must perform the contract as made. Bridges v. Clay County, 58 Miss. 817. Therefore the court should have had an accounting as to this part of the original lease. We think the court should also have had an accounting taken in accordance with the complainants ’ motion for the years since April 9, 1909. In January, 1911, there was an order entered upon the minutes of the board of supervisors in which the fifteen-year contract superimposed originally upon the seven-year contract was attempted to be ratified for the annual rental stipulation provided for in the original contract and an additional amount of improvements therein sought to be embraced in the ratifying contract. In said order it is stated:

“And whereas, there has arisen some doubt as to the' validity of the fifteen-years’ term, there being some question as to the authority of the board to make the lease for fifteen years at the same time the seven-year lease was made, and the board of supervisors being now fully advised in the premises, and being anxious to settle any question of the validity of said fifteen-year term, and being willing to ratify and confirm what was done by said board at said May meeting, 1902, and thereby make same legal and binding on all the parties.

“Now, therefore, in consideration of the premises, and the further consideration that the said Covington & Turner agree and obligate themselves to clear up and put in a good state of cultivation at least thirty-five acres of said land not now in cultivation, and build two houses 16x16, . . . the board of supervisors do hereby ratify and confirm the act of said board in making'said lease of fifteen years aforesaid, and do now lease and let unto Covington & Turner all the above-described land for a term of fifteen years from the 9th day of April, 1909, for the consideration mentioned in said lease, and the additional improvements hereby agreed by them to be done.”

Presumably the court below acted upon the theory that this ratifying order had the effect to make valid the fifteen-year lease for the annual rental therein specified, plus the improvements mentioned-therein. This order, however, could not be made by the board, for the reason that the consent of the inhabitants of the township was not obtained to such leases, and for the further reason that other parties were not given an opportunity to bid for the said lease. Section 7522, Hemingway’s Code (Section 4711, Code of 1906), requires the consent of the inhabitants of the township to the leasing of the sixteenth section lands, and, unless such consent is obtained, that such lands shall not be leased for a longer term than one year. The board not having the power to make such lease without such consent of course is powerless to ratify an illegal'lease, where such consent is not obtained in the manner required.

The account should be taken in accordance with the motion made by the appellants when the cause was remanded the first time. The judgment will therefore be reversed, and the cause remanded, with directions to the chancellor to take an accounting, as indicated in this opinion.

Reversed and remanded.