Middleton v. Howell, 90 So. 725

90 So. 725 | Miss. | 1921

Ethrio&e, J.,

delivered the opinion of the court.

The appellee was the complainant in the court below, and filed a bill against W. F. Middleton, Mary Jane Middleton, and the Homochitto Lumber Company, alleging that on the 22d day of August, 1919, the Middletons, being husband and wife, conveyed by warranty deed to the complainant all timber situated in Franklin county, Miss., more particularly described in an exhibit to the bill. This deed conveyed certain sections and parts of sections to the complainant, and also forty acres of land in section 6, township 5, range 2, lying east of Rocky branch; said .line crossing Rocky branch on the north side near the Josh bridge, and crossing Rocky branch on the south side at the dividing corner of the two forties, bounded as follows: On the east by land now or formerly of H. A. Middleton and B. B. Bobbet, south by lands of W. F. Middleton, north by lands of H. A. Middleton, and west by Rocky branch. That the defendant Middleton had previously conveyed under date of April 23, 1904, part of the land described in the said deed to G. H. Barney and J. E. Stevenson by deed, a copy of which also is made an exhibit to the bill, and which deed conveys a portion of certain subdivisions or sections conveyed to the complainant as lying west of Rocky branch. That this title to Barney and Stevenson has been conveyed by mesne conveyances to the Homo-chitto Lumber Company, and that- said lumber company, through its attorneys, addressed to Howell Lumber Company, under which name complainant was doing business, a letter notifying him that it was the owner of certain lands embraced in complainant’s deed from Middleton, and notified him not to cut the timber growing thereon, and if he did so he would be held liable for all damages for so doing, and that said company would replevy the lumber or logs cut by the complainant from this land. The letter then states:

“We are advised that you claim that the branch shown on the plat herewith inclosed is not Rocky branch. We call your attention to the fact that the deed from Middleton to you refers to this branch as Rocky branch, and locates it as fixed on the plat herewith inclosed” — and notifies him of its deed, where recorded, etc. The plat exhibited in the record with this letter shows two streams, “A” and “B,” with land situated between the two streams, which land is claimed by both parties; one contending that stream “A” is Rocky branch, the other that stream “B” is Rocky branch. Complainant then alleges: That there is doubt and confusion as to the exact location of Rocky branch, where it passes through said land, and that the Homochitto Lumber Company claims that a certain stream is Rocky branch, and that the dividing line between its property and that portion of the property conveyed to the complainant to which he got a good title is Rocky branch; while the Middletons contend that a certain other creek or branch running through sections 6 and 7 is the Rocky branch referred to in Exhibit B, the exhibit being the deed through which the Homochitto Lumber Company claims title. That while, on the face of the record, the warranty in complainant’s deed has been breached as to all of the lands lying west of Rocky branch in the southwest quarter of southeast quarter of section 6, and northwest quarter of northeast quarter of section 7, township 5, range 2, the extent of acreage lying west of Rocky branch is uncertain and indefinite, because the location of said branch is in dispute; the Homochitto Lumber Company claiming as the boundary one stream, ivhile the Middletons, the common grantors in said deed, claim a certain other branch or stream as the boundary. That the intervention of a court of equity is necessary to determine the exact location of the branch as respects the land in controversy, and the exact extent of the breach of the warranty on the part of the said Middletons, and the proper dividing line between the land of the Homochitto Lumber Company and that of complainant. That said lumber company claims more land in the southwest quarter of southeast quarter of section C and northwest quarter of northeast quarter of section 7 than it is entitled to under its deed, and that this claim casts a doubt, cloud, and suspicion on the title of complainant. That the source of the lumber company’s title and complainant’s title is that of the said defendants, th^ Middletons, but that it will be necessary for a court of equity to locate and fix what is Rocky branch in said sections and fix the rights of the parties to the litigation, and that such rights shall be fixed in one suit. That if said Rocky branch is located as claimed by the Homochitto Lumber Company then the Middletons are liable on their warranty to complainant for the value of the timber which lies west of Rocky branch and for the value of the ten acres in the northwest quarter of northeast quarter of section 7 Avhich lies west of Rocky branch which said timber is valued at two thousand five hundred dollars. That if Rocky branch is not located as claimed by the Homochitto Lumber Company, but is located as claimed by the Middletons, then said Middletons are liable for breach of their warranty for a portion of the southwest quarter of southeast quarter of section 6 and a portion of the northwest quarter of northeast quarter of section 7, township 5, range 2. The exact acreage is unknown to the complainant, but is believed to be at least thirty acres, and the timber is of the value of at least one thousand seven hundred dollars. That regardless of the location of said Rocky branch- the defendants, the Middletons, are liable for a breach of warranty under their deed in the amount above set forth. That the Homochitto Lumber Company, by reason of its claim and its threats, have deterred and prevented complainant from cutting the timber on any portion of the southwest quarter of southeast quarter of section 6, and on ten acres of the northwest quarter of northeast quarter of section 7, and if said branch is not located as claimed by Homochitto Lumber Company, then the Homochitto Lumber Company has by false and unjust claims and by threats damaged the complainant. That the claim of the Homochitto Lumber Company cast a cloud upon complainant’s title as to said subdivisions, and that he is entitled to remove this cloud and ascertain damages suffered by him through said demands, claims, and actions, and, as said questions' are cognate, is entitled to save a multiplicity of suits and have them all settled in this case. That complainant, relying upon big deed, erected a sawmill at considerable expense near the land in dispute, for the purpose of cutting timber on the same, and that, being prevented from cutting said timber by the Homochitto Lumber Company, the time in which he had to cut said timber has expired, and he has been damaged by said company to the extent of the expense incurred in erecting a mill, at. least to the extent of one thousand dollars, and also the value of that part, of the land which said lumber company claims, of the value of one thousand dollars.. He prays for ascertainment of said Rocky branch and the exact acreage for which said Middletons are liable for breach of the warranty, and that the court ascertain the exact acreage unjustly claimed by the lumber company under its deed from the Middletons, and for a judgment against the Middletons for two thousand five hundred dollars, and prays for general relief.

The bill was demurred to on numerous grounds, principally that the bill contained no equity; that complainant’s remedy was. at law; that the bill is multifarious, and is a fishing bill. The court overruled the demurrer, and granted an appeal to settle the principles of the case.

Inasmuch as the complainant had a deed to all of that portion of the lands claimed by the Homochitto Lumber Company lying in north half of northeast quarter, section 7, township 5, range 2, and inasmuch as all parties are interested in determining the location of that part of the boundary known as Rocky branch in the deed through Avhich the Homochitto Lumber Company claims; and as it clearly appears that to leave the. parties to actions at law would create numerous suits, and inasmuch as the Homochitto Lumber Company and complainant claim from a common source of title, having common warrantors of their respective titles, we think the judgment of the chancellor in retaining jurisdiction was correct. While the ascertainment of boundaries alone does not confer jurisdiction as a separate ground of equity, still, owing to uncertainty and. confusion as to the boundary, out of which grow questions in which all of the parties are mutually interested, we think equity has jurisdiction in this case on that ground. We also think that the jurisdiction of equity is clear to afford relief to complainant for breach of his warranty, and as the settlement will depend very largely upon the location of the boundary, and as the Homochitto Lumber Company will be materially affected by such location, and its attitude in preventing complainant from proceeding to cut the timber, by a threat of a multiplicity of suits against him in case he should do so, we think there are not such separate and independent causes of action as would prevent equity from entertaining jurisdiction and settle all the questions in one suit.

We think Roberts v. Burwell, 117 Miss. 451, 78 So. 357, illustrates the correctness of our decision here. In that case the widow had a separate right of action against each of the heirs for certain cotton required to be delivered to her annually under a common conveyance of title. In the fifth syllabus of that case the rule is stated as.follows:

“While the failure of each of the devisees to deliver to the widow the cotton, which he or she was obligated by the will to do, constitutes a separate cause of action, nevertheless they may be joined in equity in one suit, for the reason that, where the interest and liability of the defendants, though separate, floAv from the same fountain, or radiate from the same center, or have a common connecting link, the joinder of such defendants and matters in the same suit is admissible.”

See, also, Robertson v. Monroe County, 118 Miss. 541, 79 So. 187; Cumberland Tel. & Tel. Co. v. Williamson, 101 Miss. 1, 57 So. 559; Tribette v. Railroad, 70 Miss. 182, 12 So. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642; Illinois Central Railroad Co. v. Garrison, 81 Miss. 257, 32 So. 966, 95 Am. St. Rep. 469; Crawford v. M., J. & K. C. R. R. Co., 83 Miss. 708, 36 So. 82, 102 Am. St. Rep. 476.

If complainant should proceed against the lumber company, and should establish the boundary as contended for by the complainant, he could recover from the lumber company his losses occasioned by the prohibition of the lumber company under the threat of recovery by replevin on each lot of timber cut by him; and if that company, after such suit, could establish that the Rocky branch called for in that deed, as understood between it and the grantors, the Middletons, called for the stream which it claims was agreed and understood at that time to be Rocky branch, it could recover damages from the grantors for breach of warranty. Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007; Kirkpatrick v. Miller, 50 Miss. 521; Dyer v. Britton, 53 Miss. 270. If the parties are left to separate actions, it is evident that it would result in several lawsuits to settle rights in which all have a common interest, they having a common source of title from common grantors, and each having rights affected by the matter in dispute, and it would certainly be in furtherance of justice to have all disputes growing out of the uncertainty of the boundary settled at one time, and equity is better adapted to secure justice in cases like this, and we fail to see where any decision of this state would be violated in permitting it to entertain a controversy.

The judgment will be affirmed, and the cause remanded, to be proceeded with.

Affirmed and remanded.