Parks v. Kline, 79 So. 81

Parks v. Kline

79 So. 81 | Miss. | 1918

Smith C. J.,

delivered the opinion of the court.

Appellant exhibited his bill in the court below against appellees, setting forth in substance, that John Hawkins died intestate in 1904, seised and possessed of certain land; that prior to his death Hawkins executed a deed of trust on this land to secure Seymour Bros, in the payment of an indebtedness due them, evidenced by his promissory note; that on August *1247, 1916, this deed of trust was foreclosed by the trustee therein, and the land purchased from the trustee by appellant; that when appellant purchased this land on August 7, 1916, there was a growing crop of cotton and corn on a part of it, which passed to and became the property of appellant by virtue of his purchase of the land; that this crop was planted, worked, and claimed by E. J. Parker and several other persons claiming to be his tenants; that Parker had rented the land from Mary Bass, who was administratrix de bonis non of the estate of John Hawkins, but that she had not been authorized by any order of the court in which the estate was being administered either to rent or to cultivate the land; that M. Kline supplied Parker and his alleged tenants with goods, wares, and merchandise for the purpose of enabling them to make a crop; that appellant demanded possession of the crop, whether before or after it was gathered does not clearly appear, but that possession thereof was denied him, Kline offering to pay him a “proportionate part of rents due by Parker on said crop in proportion that the months following the 7th day of August, 1917, bear to twelve months of said year,” which he refused to accept, insisting that he was entitled to the crop or its proceeds, but that he was willing to allow Kline to retain out of the proceeds of the crop all advances he had made to Parker and his alleged tenants, which allowance to Kline the bill alleges appellant is still ready and willing to make; “that it was agreed between the complainant and the said M. Kline that he, the said Kline, should take possession and receive all of the said crops and hold the same or the proceeds of the sale of the same until this matter could be settled by adjudication in the chancery court;” that no debts were due by the estate of John Hawkins other than the debt secured by the deed of trust hereinbefore set out. The bill prayed that Kline make discovery of *125the amount, value, and proceeds of the sale of the agricultural crop here in question received by him, and that a decree therefor be rendered for appellant, “or if mistaken in the relief prayed for, that this court will fix the true amount due complainant by the defendants out of the proceeds of said crops by reason of his purchase under the said trustee’s sale; and that a decree be granted and entered against the defendants in favor of complainant for such compensation, together with legal interest thereon.” Defendants demurred to this bill, and their demurrer was sustained and the bill dismissed; hence this appeal.

Appellee’s contention is that section 5051, Code of 1906 (section 3323, Hemingway’s Code), has no application here, for the reason that the crop in question was neither planted, cultivated, nor gathered by Hawkins, the mortgagor in the deed of trust at the foreclosure of which appellant purchased the land. This is true, but we think the statute should not be so construed as to limit the right therein conferred solely to the mortgagor in person, but includes, not only the mortgagor, but all persons claiming through him. The statute is remedial, and should be so construed as to give full effect to its purpose.

That the administratrix de bonis non had not been authorized by the court in which the Hawkins estate was being administered to cultivate or rent the land is not material, for she may, for aught that appears in the bill to the contrary, have been authorized so to do by Hawkins’ heirs at law, the only persons who could have objected thereto. Ashley v. Young, 79 Miss. 129, 29 So. 822.

We are of the opinion, therefore, that the ease comes within section 5051, Code of 1906 (section 3323, Hemingway’s Code), and that appellant is entitled only to “a reasonable compensation for the use of the land.” and that cannot be awarded in this suit, for the reason that *126appellant’s bill contains no allegations submitting that question to.the court. Moreover, that question can be determined in a court of law, and the decree below expressly provides that the dismissal of the bill is “without prejudice to the complainant to sue in a court of law.”'

Affirmed.