Rutherford v. Eastman, Gardiner & Co.

97 So. 670 | Miss. | 1923

Ethridge, J.,

delivered the opinion of the court.

The appellants were complainants in the court below, and filed a bill alleging that J. M. Roberts, deceased, in his lifetime executed a cjeed of trust on certain lands therein' described, and that the complainants inherited from him subject to the said deed of trust, fe'aid deed of trust was executed to secure a debt to A. P. H. Thompson, and assigned by him to Eastman, Gardiner & Co., which assignment was duly entered in the records. It is further alleged that before the debt matured Mrs. M. N. Roberts offered and tendered bo Eastman, Gardiner & Co., the amount due thereunder, who refused the said tender, and always refused the tender of the money, claiming they' wanted timber, and not money, yet, notwithstanding the said tender and refusal, the said defendants caused a pretended sale of the said lands through the trustee therein; that the said trustee pretended to sell a portion of the said lands, and that the sale is void, for the reason that the said lands were not sold in the; manner provided by the Constitution, but that the trustee, instead of selling the whole forty, would sell a portion of such land covered by pine growth and virgin timber'; that the land which the trustee pretended bo sell was very fine timbered lands, and that the other lands not sold were poor lands, and not covered by timber; that the defendant Cox is claiming to assert some claim or interest in said land which is unknown to the complainant, but that he was,the manager and an officer of Eastman, Gardiner & Co., a corporation, at the time of the said tender, and was fully advised of the' claim of the complainants before he acquired any title therein, and hence is not a bona-fide purchaser for .value without notice. It is further alleged that the complainants had been in the continuous possession -of said lands since said sale, and pray for a decree canceling the trustee’s deed to Eastman, Gardiner & Co., and the rights and claims of the defendant Cox atid for general relief.

The defendants answered, denying the tender, and denied that Eastman, Gardiner & Co. refused to accept any tender, and denied that they said that the timber was what they wanted, and not money, and denied that, at the time the tender was alleged to have been made, Cox was the manager of Eastman, Gardiner & Co., and denied that he was the party to whom the tender was made or that any tender was made to him whatsoever. They admit that the trustee sold the land, and admit that the defendant became the purchaser thereof, but allege that they were induced to buy the said land at the trustee’s sale at the instance of the complainants, for the reason that the complainants were unable to pay the said sum of money due, and desired to preserve their home; that the price paid therefor was the full value of the said lands and timber, and that complainants were allowed to hold the remaining parts of said lands. The defendants denied that the sale of the lapd was not made in accordance with law, and allege they could have purchased thg entire tract for the sum of money bid for the portion thereof included in the sale. That the said defendants bid for the portion of said land on which there was timber, and that the value of the same was in excess of the amount due under the deed of trust, so that it became unnecessary for the trustee to sell the remaining land under the trustee’s deed, and such remaining lands were not sold. The defendants denied that the complainants had been in possession1 of the land exercising claim and control thereof since the said sale, but have always been in the possession of the lands embraced in the deed of trust which were not sold.

The cause came on for hearing at the November, 1921, term of the chancery court, and was taken under advisement; decree to be rendered in vacation. A final decree was rendered on the 30th day of August, 1922, in which the bill was dismissed as to all the lauds involved therein, except twenty acres, as to which twepty acres the hill was retained, and 'the cause remanded to rules, for the purpose' of allowing the complainants to amend their bill, so as to present the single issue that the sale of the said twenty acres was void, for the reason that the same was sold in excess of the amount required to satify the indebtedness secured by the trust deed in order to make the bill conform to the evidence on that point, and for the further purpose of making clearer the ages of all of the heirs of J. M. Roberts, deceased, at the time of the said trustee’s sale, and who, if any, of said heirs beside the widow were of age, etc.

Prior to the rendition of this decree the chancellor addressed a communication to counsel for both parties, outlining his views, and stating that before signing any decree he would be glad to hear from counsel- at their earliest convenience to the end that the matter might be closed up during his tenure of office. The date of this communication does not appear in the record, and it does not appear that there was any response thereto. On the 9th day of September, 1922, it appears that counsel for the appellant mailed a notice to the stenographer, desiring a transcript of his notés of the evidence, wherein it is recited : “The complainants or their attorneys did not know of the rendition of said decree until to-day,” which notice was filed in the office of the chancery clerk the 12th day of September, 1922. The stenographer’s notes were never transcribed, and the evidence before the chancellor is not containd in the record, so we are limited to questions of law appearing on the face of the record, and must presume all facts which the evidence might have shown to be in accordance with the decree of the chancellor.

It is contended by the appellants that the trustees sale was illegal, because the land was not sold in governmental subdivisions, as required by the constitution, but that the trustee selected parts of certain forty-acre tracts containing timber, and sold them.

Section 111 of the constitution of Mississippi reads as follows:

“All lands comprising a single tract sold in pursuance of decree of court, or execution, shall be first offered in subdivisions not exceeding one hundred and sixty acres or one-quarter section, and then offered as an entirety, and the price bid for the latter shall control only when it shall exceed the aggregate of the bids for the same in subdivisions as aforesaid; but the chancery court, in cases before it, may decree otherwise if deemed advisable to do so.”

The lands embraced in the deed of trust here involved did not exceed one hundred and sixty acres, and it was within the discretion of the trustee to sell all of the land in one body, or he could offer such parts thereof as he deemed for the best interest of all parties concerned sufficient to satisfy the debt. He was not under duty to sell the entire tract, though he may have done so under the law had he deemed it advisable. As the whole matter was before the chancellor on the evidence, we must presume that the evidence warranted the chancllor’s decree. There is nothing in the section of the constitution itself that prohibits a sale of the land in the manner it was sold.

It s also insisted by the appellants that the decree must be reversed, because the record shows that it was taken under advisement by the chancellor at the November, .1921, term of the court, to be decided in vacation, and that no decree was rendered in the intervening time betwen that term and the next term, but that a term of the chancery court intervened between the taking of the cause under advisement and the decision thereof and the signing of the decree, and that the chancellor had no authority to reader the decree after the next ensuing term without a new order taking the same under advisement to be entered upon the minutes of the court, relying upon the case of Union Motor Car Co. v. Cartledge, Sheriff, et al., 97 So. 801, decided during the present sitting of this court, in which we held that a circuit judge had no power to render a judgment in vacation in a case taken under advisement to be decided in vacation after the intervening of a term of the circuit court between the dates of the taking of the cause under advisement and the date of the judgment entered thereon in vacation. Opposing counsel,contend that this decision is not applicable, because the practice is different from the circuit court practice, in that the chancery court only heárs causes in term, time which have been set down for hearing, either upon the issue docket or on the motion docket as required by sections 514, 515, Code of 1906 (sections 271, 272, Hemingway’s Code). These sections read as follows :

“Thé clerk shall keep an issue docket, in which he shall set down all causes ordered by the court or either party to be set down for final hearing, or on demurrer of all the defendants, in the order in which they are so> ordered to be set down; and he shall place on said docket, -in proper order, all petitions for the sale of the estates of decedents, minors, and persons of unsound mind; all proceedings representing estates to be insolvent; final accounts of executors, administrators, ' and guardians, and petitions for distribution of an estate or payment of a legacy, and all other similar matters in which an order or decree of the court is sought in matters testamentary, of administration, or guardianship.

“The clerk shall also keep a motion docket, in which he shall, when ordered by the court or either party, docket all causes on demurrer or plea of part of the defendants, all ex parte petitions, or motions,, or exceptions to evidence, reports and pleadings, and all matters pertaining to administration and guardianship not directed to be placed on the issue docket. The clerk shall place on the motion docket all matters brought before him in vacation when presented; and at the next term of the court all matters on said docket shall be examined and disposed of by the court by approving or disapproving the same.”

Under the practice of the chancery court and the requirement of these sections the cause does not stand for bearing in term time until set down by one of tbe other parties or by order of the court, except of course in certain specific cases where the clerk is directed to place certain causes on the docket for hearing without regard to the request of either party. It does not appear from the record that the intervening term of the chancery court was actually held, nor does it appear that the cause was set down for hearing at such term, if held in the manner required by the foregoing sections, and under the general chancery practice. This being true the cause was not. ready for hearing or trial at the intervening term, if one was held. It further appears that the chancellor notified counsel for both sides in writing prior to the rendition of the decree, calling their attention to the fact that he was going to decide and dispose of the cause prior to the end of his tenure of office, which then ivas approaching its end, and it does not appear that any objection was made thereto, and this point was not raised in' this case in the original brief, and not until after the rendition of the opinion in the case of Union Motor Car Co. v. Cartledge, Sheriff, et al., supra. We are therefore of the opinion that the judgment of the chancery court should be affirmed..

Affirmed.