*1 may indicating he there are in the some record iucidents have known before then. he
However, there no intended to include doubt thought ten in the acres lease time that at the had done. been
Affirmed.
Sample et al. v. Romine. (In May 25, Suggestion Sept. Banc. 1942. Error Overruled 1942.) (2d)
[8 No. So. 257. 34945.] *3 (In 1942.) Banc. Nov. (2d)
[10 34945.] So. 346. No. *5 Bridgforth 'Saye Saye, City, Love, & & of Yazoo appellants. Longview, Texas, *9 Henry Barbour, & Eager, & City, Yazoo Watkins of Jackson, and Walter of El Dorado, Brown, L. Ark., appellee. *11 Bridgforth Saye,
Saye Longview, & Texas, & City, appellants, on to correct motion Love, of Yazoo judgment.
Henry City, & Barbour, of Eager, Yazoo & Watkins Walter L. Jackson, Brown, of El Dorado, Ark., appellee, judgment. on motion to correct
721 by orally Saye Argued Bridgforth, W. and Allen T. by appellants, appellee. Watkins, for H. W. for opinion Roberds, J., delivered court. equity by sought
Appellee, (1) Bomine, bill to have conveyed himself in and established a one-third inter- royalty aggregate in nine mineral and leases on an est of County, Mississippi, of land in Yazoo acres (2) recovery accounting profits of one- for an realized on such which defendants had third thereof prayed against attachment bill for an leases. The joined as leases and interest of said defendants such Company, Producing defendant-garnishee the Union developing covered which oil lands concern was Sample indebted to one of leases and was through operations. The leases stood Mucher such Mrs. in rights *14 Sample. Falvey The of C. and Clark the names J. arrange- grounded Nomine on a verbal of were Sample Falvey and he have had with and claims to ment parties pursuant as will of thereto, acts and conduct the fully hereinafter. Mrs. the be more out Mucher is set Falvey, in the will Dr. J. C. and sole devisee widow deceased. allega-
Sample material the Mucher denied and Mrs. rights plead therein; the the asserted bill and tions requiring of trusts creations Section of 1930, Code writing, claim and laches. to be in stale substantially here- The chancellor found as facts out; Nomine was entitled to one- inafter held that a set that and minerals and third interest Sample leases title Mucher thereto as trustees and Mrs. held convey to Nomine them to interest; for ordered Nomine’s days, failing thirty he within which one-third such a empowered the court com- clerk of as ordered the and conveyance, ap- execute thereof to and missioner income pointed an account of the and to a master state operations under the leases. profits question must determine is relation we The first Falvey Sample. and Nomine and between which existed conception our a of the statement necessitates This by evidence. shown facts ultimate Sample Nomine were Falvey and and and friends Dr. Falvey Sample Arkansas. and Dorado, El lived at all together. Falvey and lived Dr. was bachelors were then Sample prominent practitioner, a general' busi- medical a latge operated a Nomine restaurant. Fal- man, and ness Nomine Sample and vey men of financial means, were and knowledge experience in the and considerable man of a especially procuring gas mineral and oil business and Falvey Nomine called 1, 1929, Dr. On November leases. been informed Mm be bad officeand told that into bis prospects company large were a oil that for a “scout” good County, then a well was where oil in Yazoo put suggested Falvey he would being that drilled. Dr. person get to another up dollars and would five hundred if Nomine put up turn that to Nomine like over and a sum gas buy County leases, go oil and Yazoo to would might through wise, think Nomine area as such scattered enter- in the one-third each would share the three repayment leases prise, dollars, the of the thousand after party. Falvey the other in the names be taken agreed proposition. November 4, On to that Nomine Sample Falvey was that Mr. Nomine Dr. informed Falvey, plan, paid agreeable and had to him, he done. fact, had dollars, which, other five hundred Falvey arrangement Nomine all verbal. This Falvey procured in El where Dr. Dorado, went bank payable to dollars, check for one thousand a cashier’s *15 wife, him. Nomine and to Nomine, and delivered his County. Nomine left for Yazoo in Nomine’s automobile, placed credit in bank a of this check to his the amount City. county, contact- He about over the in Yazoo went procured finally ing all leases, and the nine landowners, Sample, Falvey and and blocked the name of scattered in advantageously. thought He for he worked at that as per days. paid one acre for He the owners dollar six aggregating by the for checks leases, nine, $884.00' the the He name on Yazoo bank. witnessed the in his drawn signatures to all the of the lessors of leases and made purpose having execution for of them their of affidavit chancery with He all of the leases the recorded. filed procured the record clerk certified for and clerk maps plats copies He also obtained of the thereof. and premises county the leased and data titles and the on of the lessors. He then went back to El Dorado and made report Falvey, showing* a written Dr. all of the to paid showing leases, the he each, amount for and also expended recording had for certi- $33.60 the leases, copies, maps, leaving which, fied $8'2.40 direction etc., Falvey, applied expenses, Dr. of he on his which had arrangement that the exceeded amount. Under Nomine kept paid possession papers, in all the his of bank records, appears It
checks, and data, leases, documents. original being leases, after were to Dr. recorded, mailed Falvey, who delivered them Nomine. to It was also under- keep develop- stood that Nomine towas touch with mainly County handling ments in Yazoo and look after the properties, Falvey they suggesting try of Dr. would meaning, to sell some leases and “clear we out”— repayment money assume, furnished —and develop retain and remainder. being proved dry The well then drilled hole, a and be activity oil that out. section died Falvey Sample Texas, Dr. and moved to from which they, place well Nomine, as had come to as Arkansas. Falvey leaving December, died, Dr. 1938', In a will in beneficiary. which widow was the his sole She remar- became ried and Mrs. Mucher. August, signs again
In were 1939,there of oil in Yazoo County being from another well then drilled. Nomine County investigate Yazoo returned to and look over impressed possibility He with situation. territory. Sample He called in that oil over the tele- phone giving also him letter, and he wrote an account prospects, oil letter and recited his the under- Falvey. standing with Dr. he had To had this time the personally matter had not ben discussed between Nomine Sample, although hearing witnesses testified con- Falvey Sample, between versations some also Sample Falvey quoted conversations with the arrangement substantiating the witnesses, as heretofore *16 Following up letter this Nomine out. set mailed the Sample. Clapp, who had been to He wrote one also leases Falvey assisting secretary Mrs. Dr. who was to and reporting handling the oil business, Mncher in the of her County setting ar- out the oral situation in Yazoo rangement and Falvey had substance, what with Dr. and, sending Clapp, in re- been done later to thereunder, sponse copy Clapp’s request, of the state- a written Falvey to El Dorado. ment he on his return had furnished Company, Producing filed, when suit was The Union brought the leased of had premises, an oil on one tract well Sample Mucher had received and Mrs.
and operation properties more than thousand of dollars. Sample, Mucher were between Mrs.
There conferences Sample attorney Mucher and their Romine. and Mrs. and then all of Romine. denied claims conveyed (1) in each
The a interest leases one-half royalties (2) (3) place, future minerals in rentals subject keep prior all under and the leases alive, premises in favor of Evans. leases on the one objection proof prior The chancellor over admitted Falvey dealings Dr. similar between Romine and Sample verbal, between all Lake, Romine and one party property each which had an interest in generally which were in the same manner as handled to be handled, venture under consideration was some being the former taken the name or leases one, parties, being in more, but not of the interested some all, Romine, the name of for the Mrs. but all held and used all, In some, common benefit.' but not of these cases let- were later title ters written to the other holders parties arrangement. confirming interested the oral particular areWe not certain of the which bases on rights grounded growing Romine the chancellor foregoing facts, out of the state of but one was that of joint .adventure. We think that is the true relation parties. between the
726 perhaps joint
While no exact definition of a adventure given, by general can be nor can a rule be which laid down question joint what adventure can as to amounts to a depending be answered, the answer in each case on agreement, parties, terms of the nature of the acts undertaking (30 page 6801, other Am. Jur., and facts Superior 7; Sec. 108 State ex rel. Ratliffe v. Wash. Court, 348), attempted. 443, 184 P. have some definitions been page joint In 30 Jur., is 3, Am. Sec. said: ad 677, “A broadly enterprise venture has been an defined as under persons jointly, particularly, taken more and, several persons carry an association a as of two or more out to single enterprise profit for ... an associa business persons carry single enterprise tion of aout business profit, purpose they prop for for their which combine erty, money, knowledge.” Simpson skill In effects, Spinning v. Richmond Me. 145 A. Co., 22, Worsted 128 “ ‘joint 253, the Court adventure’ been 250, defined as ‘an association of two or more said has
persons carry single enterprise profit.’ aout . . business for .’’A “ federal court said ‘Joint adventure’ two exists when persons joint enterprise or more combine for business understanding they' their mutual benefit with are that profits share in or each losses and that to have voice management.” 4 Chisholm v. F. Gilmer, Cir., its 81 (2d) U. 81 affirmed 299 S. 57 S. Ct. L. Ed. 120, 121, 99, 65, rehearing 623, denied 299 63, 229, U. S. 57 S. Ct. 81 L. Ed. will be 458. Other definitions found the notes in beginning page R., 48' L. at in 63 L. A. A. R., 1055, page beginning at 910. money, may
The be in contributions serv- materials, enterprise.” “something promotive Simp- of the ices— Spinning supra. v. Worsted son Richmond Co., joint proprietary right interest There must be a page Am. 682, 11; control. 30 Franco Jur., mutual Sec. Dempsey-Kearns Vakares, 309, 812; 35 Ariz. 277 P. v. Enterprises Pantages, & Picture Motion v. 91 Theatrical Realty App. 550; v. 153 267 P. Atlas Co. 677, Cal. Galt,
727
Darling
Buddy,
1
Mo. 784,
v.
318
285;
A.
Md.
139
Ohio
(2d)
Leech, Bloom v.
493;
R.
A. L.
S. W.
A.
Grant,
1, 137
289 Pa.
v.
Marcus
137;
St.
N. E.
239, 166
668.
Virginian
136 S. E.
R.
A contract between agreement. express It in a formal embodied not be or parties may of the the conduct facts, be inferred from the Shapiro, Cooperstein 122 N. J. v. and circumstances. Eq. Wyoming-Indiana & v. Oil Co. Gas 238, 826; 192 A. (2d) Wyo. 1037; L. P. 80 A. R. 526; 43 7 206, Weston, L. A. R. 910. 48 L. 63 1058, Annotations A. R. joint partnership general that a in It a differs partner- single transaction, while a
adventure relates a continuing ship general usually business to a relates joint particular relation of adventurers kind; the of a agree- usually formal in the duration less shorter (Champion partnership general v. D’Yar- a ment than Dempsey-Kearns App., 587; 293 S. Tex. W. mett, Civ. Pantages, supra; Enterprises Dolan v. & v. T. M. P. Laws, 342, 140 219 745; A. Fuller v. 107 Conn. Dolan, App. 342, 836; Creel, Co. v. 271 S. Central Trust Mo. W. Ky. 421; Akers, 266, 211 W. Boles v. 116 Okl. 184 114, S. supra), R., 63 L. 182; 48 and A. 244 Annotations P. parties, growing authority of the interested out of the 728 joint
relation,
general
a
extensive
a
in
is less
than
adventure
supra;
partnership. Champion
D’Yarmett,
v.
Phillips
Toof,
48;
&
v.
Cirode v.
45 Miss.
Davis
Duncan,
Rep.
45
499,
732;
Miss.
7 Am.
Prince v.
Richardson,
rights
al.,
Crawford
50
et
Miss. 344. However,
parties
practically
duties of the
inter
se are
same
both relations.
v.
152 W.
Lanin,
57,
Goss
170 Iowa
N.
43; Swanson Lindstrom,
19,
950;
v.
151 Minn.
185 N. W.
Johnson v.
& M.
Bank,
442,
Farmers’
State
152 Minn.
189 N.
Catzen,
W.
584; Kaufman v.
Va.
583,
79,
W.
supra;
130 E. 292;
S.
Boles v.
Pritchett
Thomas
Akers,
v.
Plater &
Co.,
Tenn.
Such venture in real where exists there is agreement money, . an skill, “. . effort, to combine knowledge, purchase purpose and reselling and to for the land ” dealing profit or . . with it at . 30 Am. page Jur., 684, Sec. 15. joint partnership,
A or exist was held to adventure, acquisition gas operations in the of oil and leases and very thereunder where the facts and were circumstances practically similar, and some them with identical, following those here under consideration, oases: Kirkpatrick v. 135 Okl. 276 P. Baker, 193, where the parties; lease taken in the name of one of the four *19 Wyoming-Indiana Wyo. & Weston, Oil Gas Co. v. 43 526, P. (2d) 7 L. R. 206, 1037, 80 A. where the lease was also Forg parties; in one the taken the name of Grennan v. App., (2d) Tex. Civ. 101 S. eron, W. oral 885, on based agreement party and one furnished the services and other money advanced the were taken in leases name the party, practically of one case the same on facts its as Thompson App., one bar; the at Corbin, v. Tex. 137 Civ. (2d) Corp. 157; S. Petroleum W. Lavaca v. Tex. Runk, App., (2d) Strong, 111 1113; Civ. S. W. v. Strack Tex. App., (2d) Brady Brady, 114. 313; Civ. S. W. v. 48 Ariz. (2d) (a mining partnership); 61 P. 390 308, Mildren v. Ky. (2d) 262 91 Root, 523; Shoemake S. W. 826, Davis, v. (2d) 146 Kan. P. 909, 1043; 73 Wolfe v. North, 182 Okl.
729 agreement purchase (2d) 78 P. oral to 674, an 520, royalties, in name one title taken sell to which was party. although property is to the cases,
In
the
such
title
permitted
co-
in the
of some of the
he taken
names
impaired
rights
not
are
of the others
adventurers,
equity
thereby,
holding
in
title
becomes
one
imposed
a
property
The trust
follows
trustee for all.
thus
passes
of innocent bona
into
hands
until
preced
paragraph
purchasers.
next
fide
Authorities
ing;
Campbell,
108,
121
141 N.
Minn.
W.
192,
Irvine v.
Floyd Duffy,
339,
68
Va.
69
689;
Ann. Cas.
v.
W.
1914C,
Seymour
(N. S.),
Freer,
v.
8
883;
33 L. R. A.
993,
S. E.
Stephen,
306;
177,
89 Colo.
202, 19
Wall.
L. Ed.
Austin v.
&
Lumber Co. v.
Mo.
The between adventurers imposes upon partici- fiduciary all the character and honesty good pants faith, fairness, and the utmost respects enterprise. dealings with each other as their especially ... whom of those “This is true propertytinvolved Jur., Am. therein intrusted.” 30 pg. 695, Sec. 34. parol between admissible
In such evidence is as cases parties circum the facts and themselves show Burroughs Lasswell, v. to real estate. even as stances (2d) App., Davis, Shoemake v. 705; 108 S. W. Mo. pages supra; 466. 464, R. 465, Annotation 27 L. A., parol page 150. For admission J., 373, Sec. 65 C. partner resulting trust not based on cases evidence page ship Perry Trusts, 181, 137; on Vol. Sec. 1, see Yerger, Moore, v. 74 53 Miss. Moore Miss. 135; v. Miazza Hoffman, v. Miss. So. 953; 19 So. Wilson by operation results of law The trust arises and 609. attending the transac- from the and circumstances facts *20 730 parties.
tion even and the true relation of the This is though part original understanding the was as a of it orally agreed parties, if in one the title should be taken of surrounding- there are the other facts circumstances supra. transaction which cause trust result. J., 65 C. As was “It said in Thomas et 531: al. v. Miss. Thomas, by authority well is settled that on the facts where, proved, express a trust would result the absence of an agreement, agreement the will fact that such made ’1 (cid:127) prevent arising. page not In the trust 40'Am. Jur., partner 195, it “. 96, . . Sec. said A indi is is whose partner belonging vidual name is vested real estate to a ship accordingly holding equity is as a treated trustee property partnership for the benefit of conveyance same if the extent as the may had all named partners grantees. equity as In a court such case of compel partner particular conveyance make such necessity rights as the of the business and of co-partner require, may although is this true a trust writing.” not have been declared in For Grennan v. geron, supra; Corp., Dutton v. Interstate Investment Sup., (2d) Resulting Cal. 1191P. ex 138. are trusts excepted pressly requir from Section Code of ing by writing, of trusts to be in declarations these words any “. . . but where trust shall arise or result, implication any conveyance law, of out of of such land, trust or confidence shall be the like force effect the same as it would have been if this had not statute passed.”' been appellants say
But Romine not entitled is to minerals agreement he because in bill his said the he was that get profits repayment towas one-third of the after thousand dollars. And bill true the so stated setting agreement. part out the another However, alleged parties “engaged joint the bill he in a inter- prise purchasing prayed minerals” and for a one-third particulars interest in the minerals,; also in a bill of later part again furnished, made a while he of the bill, used *21 purchased profits, he term lie had therein said “that Falvey prior . .” and time . that minerals to testimony' Sample toas “on the basis,” the and same prior dealings they minerals the those included showed profits. place, that he in Nomine testified as well as the “profits,” to in in bill, the used the understood word as place, of No- the other witnesses clude minerals in and Falvey Sample, repeating used mine, of and conversations expressions property and minerals and all which included rights supra, acquired. Forgeron, the In Grennan v. royalties. profits chancellor court that The held included arrangement here the on the entire record held that ‘acquired. property all the included profits thing right a from from whether the to Aside right thing the fact a itself and whether to the includes rights appellee appellants have of and have denied all appellee thereby the the purpose entitled to venture, terminated (Strack realizing profits thing of for the itself (2d) 313), App., Strong, 114 neither W. v. Tex. Civ. S. prepared questions not decide, we we are of which say in in error conclusion. chancellor was his the past
Appellants say of sim- of evidence the admission Falvey and Nomine Nomine and between ilar transactions alleged Sample error. Nomine had reversible and was case the in this was same the bill transaction his dealings. Attempting former nature effect and as certainly by transactions facts reference to other state way stating facts, no but there was not the best of allegations. from However, aside these strike motion to ranged period over a former transactions that, closely including, connected were to, 1929, and and 1925 “Testimony present is sometimes transactions. with between same other contracts however, of received, ques- purpose proving persons the contract for the connected provided were so contracts different tion general plan.” Evidence— on Jones illustrate a as to this Section 140. We think Edition, Cases, Civil Second plan general light competent on the to throw was evidence 732 by parties handling procuring
used these oil and gas Life Assn., See Mutual leases. Jack v. Reserve Fund page 5 Bernheim 66 57, at Cir., Dibrell, F. v. 693. Miss. So. hearing by statements both
Witnesses testified arrangement Falvey rights Sample about with and Falvey Sample some between them Nomine, by presence selves and some made each out of the of the Laying’ other. aside whether even the statements made presence out the other com each would be petent against joint this venture, since other, *22 separate competent against the admissions were the one making present them, and those made when both were competent against were and there both, was sufficient of support this, with the other evidence in the to the case, finding judgment of the and “A chancellor, or decree incompetent, will not be for the reversed of admission supported by competent, when other and evidence.” ’ Rylee, Union & Planters Bank & Trust Co. v. 130 Miss. 94 892, 796, So. 799. of
Two the lessors testified to statements of Nomine, undertaking procure made to them while he was to the leases that he and were them, others in interested the self-serving leases. These statements were and in- competent, competent but there other was evidence support finding sufficient to the of the chancellor, Nylee supra, prevents being in rule case, this reversible error.
Appellants appellee say is barred laches in assert ing1 rights. his Aside from of statutes limitation, laches, legal merely in delay, delay sense, a is not but that results injustice disadvantage only or to another. Time is one element. There must be some other element than passage of estoppel change mere time, some element of or parties, or conditions relations of the or intervention rights inequitable persons, of third so that it would be permit party rights. to to then assert his There is
733 rule to wbat constitutes laches or stale no absolute as must be Each case under of demand. determined ness peculiar question circumstances. Too, its own largely addressed to the laches is sound discretion his decision will not be disturbed on chancellor, it wrong and appeal clearly unless amounts to an abuse of discretion. Comans v. 101 Miss. Tapley, 203, 307; Ann. Cas. J., So. C. 567, 1914B, page 217; 10 143. L., R. page C. Sec. This suit was filed in Janu shortly Utntil this ary, 1941. before there had been no institute appellee occasion for suit. He kept had Oil possession of the interest papers. been had dormant premises area the leased since 1929' until in August, Upon 1939. revived revival of oil interest back Bomine came to the and began scene to com with Sample Clapp municate and recount his interest project. .July, About Union Producing Company a. well on produced through one tract, which operations the thousand dollars had been repaid. There were conferences between the parties and attorney appellants and then a denial of the rights asserted by Bomine. These circumstances constitute a natural and reasonable explanation for any delay in instituting suit. There is no attempt disturb the rights of third persons delay and the has caused no injustice or inequity ap *23 pellants.
Affirmed and remanded.
Anderson, J., delivered a dissenting opinion sug- on gestion of error. other
The members of the court are of opinion that the Suggestion of Error is without merit. It is therefore overruled. The writer is of the opinion that it ought to be sustained and that the question is involved so im- portant that he ought to his state reasons therefor in a dissenting opinion.
734 Chap- applicable is in frauds embodied
The statute provides which 3348of 1930, Section 64 of the Code ter or part of trusts or declarations creations in that “all any manifested be made and in land or shall confidence of by by signed party or creates writing, who the declares they writing, by else or his last will, or trust, such requirement utterly shall but that this void,” shall be apply is sub- trusts. This statute not to constructive English stantially section of as the seventh the the same Appellee of all sums for one-third sued statute of frauds. rights prayed in addition the mineral received from a he the owner of one-third decree that was that the court rights in land and that a commissioner interest such conveying by appointed to execute a court deed be interest. This is not there- suit, him one-third a to such compensation by for but services, Nomine for his fore, receipts and the mineral an interest in land suit question the undis- whether under therefrom. is The express puted trust or a constructive facts this is an writing, it be in course, if the had to former, trust, if the not. It seems clear that latter it did unagreed principal Nothing former. part was left and the parole. A contract constructive rested some of essential facts were trust one on which not relationship agreed to but acts of the results parties. agreement upon
A verbal made the execution of a deed grantee property to land that the hold in trust for the prevent grantor improvi benefit of the latter’s Higgins, dence is within v. 76 the statute. Horne Miss. Yeager, 135; Miazza 53 813, 489; 25 So. v. Miss. Lewis v. 191 Miss. So. 479. An oral Williams, con convey daughter tract father to land his during return for her care of him his lifetime comes daughter within the statute void, and is but could recover a fair value for her services rendered thereunder. Stephens 188 Miss. Duckworth, v. So. 219.
735 quarter buy employs B to a section A To illustrate: conveyance name, in A’s take tbe and to land for him convey Bto agrees he will that after this is done compensation services. for bis tbe land as an interest tbe is witbin a contract Such is verbal. Tbe contract if B' violates tbe band, tbe other void. On statute and conveyance name agreement in bis own tbe and takes under tbe defini- favor, trust A’s is a constructive there concluding of tbe statute. clause tbe tion of is and Trustees on Trusts of tbe latest works One pages Bogert, 488, In vol. sec. in seven volumes. application of tbe of the there a discussion is enterprise. joint latter tbe a On of frauds to statute paragraph: page is there this B that B shall A contract band, on tbe other
“If, payment get A’s on himself, later, title land in to part convey there a contract to is A, of a certain sum, fiduciary Tbe it would seem. section, witbin tbe fourth obligation happens obligation identical with tbe to be writing, required under tbe statute. be manifested exempt fiduciary obligation it a not That it is should any more than if it were to tbe statute obedience nonfiduciary contract.” Tbe authorities in *25 agreement in his there would leases name taken the and appellants. in favor of the trust a constructive have been my opinion judgment, controlling simply, in ob- The of 1930. 3348 of the Code literates Section opinion the court on McGehee, the of J., delivered judgment. to correct motion upon predicated alleged an mistake of motion is
This entering judgment that in- different from in the clerk a by upon any rendered the not court, and to be tended deciding alleged in the which error of the court issues pre- opinion, in the as were considered and determined assignment by briefs, error when the sented the of and appealed from affirmed and The was remanded. decree alleged including the of the clerk consisted mistake per damages judgment the five cent heretofore entered provided by 33-87, Section of 1930', Code on the amount property possession the the of value of of the which was changed by per be which decree, directed to the and five damages sum cent amounts to the when $5,000 cal- by the value culated on basis the fixed the chancellor property question provid- on the the statute involved, ing judgment “In case the or that: decree of court appellant prosecute below or the fail affirmed, be his appeal Supreme judg- effect Court shall render appellant against damages, ment at the rate of per five centum and costs.” styled decision in the above
The cause was rendered (8 May (2d) 257), appeal granted on 25, 1942, So. on an by herein the chancellor under Section Code of controlling principles to settle all of the involved and expense delay, appealed to avoid the decree from change having possession property. in the directed ap- The chancellor had pellee found facts in favor of the Sample Nomine under his contention that Falvey money had furnished with which Nomine, who gas pur- experienced had business, in the oil and repay- understanding that after oil with the chased leases parties money the three furnished ment of'the enterprise, agreement one-third each share would acquired in the minerals and that leases Nomine Sample purchased in the names on certain so lands Falvey by them trustees of Nomine’s held as were convey to Nomine such one- interest; them to ordered empowered thirty days, failing in he within which third the court as a commissioner the clerk of and ordered appointed conveyance, a Mas- thereof to execute the profits ter to an account of income and state operations the said theretofore conducted under *26 might paid his in order that thereafter be leases Nomine subject money repayment to the Falvey the one-third of thereof, by Sample purchase advanced the and of the subject any expenditures leases and also to then unas- they may properly certained that velopment have made for the de- properties of the involved. The Master was report findings ordered to to court and the his of law rights parties fact as to the of the an under such ac- counting, proper hearing and for and further decree proceeds adjudge thereon. The decree then to that an such accounting extraordinarily will be voluminous ex- pensive, expense delay and that to avoid such the appeal Supreme incident thereto an to Court the should granted be under said Section Code of it 1930,and also adjudicate undertook to the value of the interest of the said Nomine to be sum the of of that $100,000, as time, supersedeas appeal fixed the amount of the at the bond although sum of $200,000, under Section of 1930', Code adjudi- the value of such one-third interest not be could any preclude cated at definite amount so as to the value being by appellants, ^questioned accounting the an since adjudged necessary was to be thereafter to determine the profits operations income and from the theretofore con- ducted under the leases and to ascertain the amount of appellants by
expenditures appropriately the made they en- which be connection therewith and for would de- titled one-third interest to reimbursement we Therefore, to in the said Nomine. clared be vested below fix the think that the court undertook to clear only Nomine for the value of the one-third interest of purpose appeal determining the amount bond by appellants to be furnished and not as a final preclude decree which would further consideration Moreover, such value. the value of the one-third interest conveyed properties to to be Nomine in the re- which developed to be main and which are still in the held Sample Falvey wholly names of immaterial to except purpose fixing involved, the issue for the supersedeas appeal. Only amount of a bond for profits previous amount of the income and derived from operations, allowing proper expenditures after credits for developing properties, made the defendants n importance; accounting is of and as heretofore stated the yet subject is be had ascertain the amount thus due, approval by upon coming the court in of the report provided hearing Master’s on a further for in the appealed decree from. question
The main
for decision on the motion now
presented
appealed
whether
decree
from is a final
interlocutory
'or an
decree, since it was held in
case
of Canal Bank & Trust Co. v. Brewer,
And in case v. Martin et al., 73 Miss. 695, 19 So. it directing that held a decree partition equitably land, if can be done, if and, not, appointed .that commissioners to make the same shall report accordingly to the next term of the is not a court, final interlocutory but decree, an decree, from which no appeal lies. appeal may But, course, such an now granted be interlocutory as from an decree under Sec tion 14, Code of 1930'. In such a it is often case, true rights that the claiming of those to be tenants in com property fully mon of the adjudicated involved are inso ownership far as is concerned, and ordering the decree partition may still be not final. Mississippi In Chancery Griffith’s Practice, Section rule is stated to be that: “A decree final when *28 740 by
nothing for further court in the case is reserved the in the of court further action the decision. Where the completely give necessary con- relief the cause is templated by upon the then the decree which court, the regarded question as final as inter- not but arises be locutory; . . .” Mississippi Chancery Again, Practice, Sec- in Griffith’s ‘‘ interlocutory may be that the decree it is said
tion 611, parties the and final as to to some one or more of the as ’’ here; is not final in that is not the case But, others. recovery definitely by determining the amount the of appel- liability appellee the of the of the the or measure pretermits adjudication until the ac- such an but lants, counting had. can be appealed expressly
In case at bar the decree from appointed provided Master to state an account- that the earnings profits ing had that as to accrued expenditures previous operations appropriate- of the ly development by appellants made of the reported properties findings court, should to the be with upon proper accounting, for of fact hear- of law and said ing decree The there- and further thereon. chancellor, matters of law fore retained portion fact—a substantial of merits of this for further case, determina- tion. right judgment- to the of the court to
As correct the May our entered clerk under decision herein of regard suggestion to which 25, 1942, error challenging the correctness of the decision as to issues opinion been considered which had and discussed in the September (9 then rendered overruled on 643), present (2d) during So. term of the court, it is provided by Section Code of that: 1930', “Where, judgment any in the record of a or decree court of equity, law or there shall be a mistake, miscalculation, any money, quantity any or misrecital of sum of any thing, among or of name,' and there shall be verdict, bond, *29 the any in suit proceedings the of records or kind, nature or the like writing or other note, bill, chancellor, or the by judge memoranda other or docket safely amended, be or decree may whereby such judgment thereof judge and of the the court, shall the duty it be thereby or decree judgment such vacation, in to amend . . .” truth, to the according et Thompson et Humphreys al., al. v. in the case of
And
the
cent dam
per
five
153,
130 So.
wherein
Miss.,
152,
court,
the clerk of this
erroneously
by
were
added
ages
affirmed,
been
had
up
judgment
the
which
entering
right
inherent
has the
it was
“The court
held that:
under
that
could have entered
enter
judgment
the
may be
enter;
done,
the
and this
and intended
law,
was
judgment
not
the term of
at which the
only at
court
term.
Town
subsequent
but at a
Wilson v.
entered,
345;
252,
1913E,
Miss.
54
Ann. Cas.
845,
99
So.
Handsboro,
167,
899;
91
129 Miss.
Rowell
v.
So.
Co.]
Sandifer,
[&
268;”
v.
124 So.
157,
Wilson
155 Miss.
City
Lexington,
the motion
judgment
to correct such
sustained.
598,
118
79
al.,
et
Miss.
See also Couret et al. v. Conner
that a
by
implication
So.
rule
clear
recognizing
which
that
intended to
judgment
does not conform to
by
rendered
court
same
be corrected
by
may
be
change
effect
motion, and
that
if it seeks to
a
holding*
modify
or to
a
actually
judgment
decision
made
only
be rendered,
objection
intended to
can
thereto
by
seasonably
reached
of error
filed. To
suggestion
be
the same effect are the cases of
v.
125
Crudup
Roseboom,
Miss.
Huckaby
So.
154 Miss.
497, and
v. Jenkins,
378,
We therefore question properly hold by timely motion the instant case, raised since the court not per damages did intend that the five cent on $100,000 valuation fixed as the interlocu- basis for tory be appeal against should assessed the appellants and included of affirmance judgment and remand. question The appellee of whether the was entitled to re- damages cover such was of course not called to the atten- tion of reaching the court or considered it in a decision of the issue involved determination, and dam- such ages were not appeal authorized on the affirmance of the pending. then judgment The motion to correct so toas eliminate accordingly such item is sustained.
Motion sustained. et al. v. Hunt.
White (Division 23, 1942.) B. Nov. *30 (2d)
[10 So. 539. No. 35141.] notes tbe Oregon, Georgia, sustain it are from Okla- Arkansas, Giving tbe transaction tbe Texas and Missouri. homa, “joint enterprise” of a take it from tbe name does not operation of tbe If it a trust in statute. land and is provable any respect by substantial word of mouth, governs regardless given tbe of tbe tbe statute name transaction. by appellants Wyoming In tbe decisions relied on it expressly they was that were based on fact stated tbe legislature that tbe of that bad not state enacted tbe English seventh of tbe section statute of frauds. agreement convey Tbe was to Romine an interest tbe contract land, verbal, tbe was therefore void tbe under statute of frauds. If bad Romine violated