Scottish-American Mortgage Co. v. Bunckley, 41 So. 502

Scottish-American Mortgage Co. v. Bunckley

41 So. 502

Miss.

1906

Check Treatment

Campbell, Special J.,

delivered the opinion of the court.*

This сase was before this court on demurrer to the bill, and was reported in 81 Miss., 599 (33 South. Rep., 416). The demurrer was held bad, because it was decided that Albert N. Bunckley, the complainant, was entitled to an interest in the land in his own right as a son of Nathan Bunckley and also as grantee of his brother, W. K. Bunckley. The cause was remanded, and the bill was answered by the mortgage company and by some of the other defendants, and was heard on pleadings and evidence, and resulted in a decree for the complainant for the interest in the land sued for and rent for the use of it. The grounds set up for the defeat of the claim óf complainants are res adjudicata, estoppel by conduct, and the statute of limitations of ten years.

*648The defense of res adjudicata consists of a decree in a case in which complainant exhibited a bill of chancery in which he propounded a claim of ownership of an interest in the land embraced in this suit by virtue of two convеyances set forth in his bill, which are altogether different from the claim he makes in this suit. It was held in that case on appeal to this court that he had no right by virtue of the claim made in that suit. The subject-matter of the two suits is different, and the former decree is not a bar to the claim made in this. That case is reported in Bunckley v. Jones, 79 Miss., 1 (29 South. Rep., 1000), by reference to which the manifest difference between the two cases will be apparent.

The presentation relied on as estopping by conduct is, as to Albert N. Bunckley, that he was at the home of his father, Nathan Bunckley, when the agent of the mortgage company was there to inspect the land for a loan of money on it by the company, and was cognizant of the proposed loan, and was silent as to any claim of his own to the land; that a large body of some 3,000 acres of land was conveyed in 1847 by Ransom Bunckley in remainder, after a life estate to his three sons, of whom Nathan was one; that soon a partition was made between the three grantees and a partition deed executed; that Nathan went into possession of the part allotted to him and soon acquired other interests in the large tract by purchase from co-owners, and from 1873 or before was in possession as sole owner of all the land in controversy, dealing with it as his own, having it assessed as his, paying the taxes, receiving the rents, selling timber — in short, exercising all such acts of individual ownership and control as pertains to complete and undisputed ownership, and that in order to get the loаn from the mortgage company Nathan made affidavit that his father had long, owned the land and his title had never been disputed, and that he had acquired it from his father by the conveyances in 1847, and had gone into possession *649in the early ’70’s, and his title had never been questioned, and he had, as he believed, a perfect title in fee simple; that an attorney at law employed by Nathan had made an abstract of the title, and given an opinion that it was perfect in Nathan, whereupon the sum of five thousand dollars was loaned and a deed of trust taken on the land, under which the mortgage company aсquired title by a sale in accordance with the deed in 1893. Albert N. Bunckley, the complainant, lived with his father, Nathan, on the land, and cultivated a part of it, and was on the land with his father when it was sold under the deed of trust, and was dispossessed with his father by a proceeding of unlawful detainer, after the sale.

The question is: Is he estopped by his silence ? The truth is, he did not know that he had any interest in the land. As stated by counsel for the mortgage company,' “it was not considered in the family at that time, nor until after 1893, that the children of Nathan had any interest whatever in the property in controversy.” His ignorance of his rights precludes thе claim of estoppel by his mere silence. 11 Am. & Eng. Ency. Law, 433, 434b, and cases cited; Pomeroy Eq. Jur., sec. 805; Houston v. Witherspoon, 68 Miss., 190 (8 South. Rep., 515); Hignite v. Hignite, 65 Miss., 417 (4 South. Rep., 345; 7 Am. St. Rep., 673); 7 Ballard on Heal Property, p. 40. Apart from this, it is by no means certain that he knew of the loan being effected, and if he did, he was under no legal obligation to assert his claim, to interfere with the success of his father’s application for a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍loan. His title in fact had not then accrued, so far as he derived from his brother, W. H. Bunckley, and his claim arising from the conveyances of Hansom, Bunckley in 1847 was of record and constructively as much known to the mortgage company as to him.

The claim of estoppеl as to the interest in the land acquired by complainant by conveyance of W. H. Bunckley is based on the fact that on January 5, 1891, W. H. Bunckley opened a written correspondence with the agent of the mortgage company in *650behalf of his father about the deed of trust aud its payment, and wrote sevеral letters in which he spoke of the land as his father’s, and about paying the debt of his father, and made no claim of his own to any interest in it, and as the mortgage company after-wards sold the land, and purchased it, W. R. Bunckley was estopped to assert any claim to it, and, he being estopped, cоmplainant, his grantee, is. ■ But W. R. Bunckley was ignorant of his right to the land, and did nothing by which the mortgage company was misled to its prejudice. It thought it had a lien on the fee simple and a perfect claim on the land by virtue of its deed of trust, relied on that, and could not have been misled by any act of W. R. Bunckley, on which it did'not rely. He was not estopped, and his grantee took his title free from estoppel.

The statute of limitations is not a bar, for the reason that, although they did not know it, as before stated, Nathan Bunckley, who thought he Avas sole owner, Avas a co-tenant with the complainant and W. R. Bunckley, and his possession Avаs, in Anew of the law, that of all the co-OAvners, and the statute of limitations could not be set in motion until an ouster or its equivalent, and there was none. “A conveyance alone, without possession taken under it, can never amount to an ouster. The same remark is applicable to a mortgage of the whole.” Freeman on Cotenancy, sec. 226; Warvelle on Ejectment, sec. 450, et seq.j Wood on Limitations, p. 621. The intimate relationship betAyeen the co-tenants here is an important circumstance. Warvelle on Ejectment, sec. 456. In such case much stronger evidence is required to start the running of limitations than among strangers. Wood on Limitations, p. 621.

The domplainant is entitled to recover the land, as held by the decree of the chancellor, but is not entitled to rent of the interest acquired in 1898 from W. R. Bunckley prior to that date.

The mortgage company sought to amend its answer, so as to set up the six-year statute as a bar to the claim for rent and to have stricken out of the bill an amendment allowed long before, *651and was refused, we think properly, because, while amendments are to be liberally allowed, there is a limit to liberality, and it was reached in this case.

On cross-appeal complainant insists that partition should have been decreed, and part of the defendants insist that partition should have been decreed. It was not asked by complainant in his bill, nor did the defendants exhibit a cross-bill. “Ask, and ye shall receive,” is still the law to which we are subject, and no complaint against the decree on this ground can be maintained.

The decree will be opened, so far as to correct it by reducing it by the amount of the part of the rent accruing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍prior to the'conveyance by W. B. Bunckley to complainant, and with this change the decree will stand.

The costs of the appeal will be taxed on complainant; the other costs on the defendants below.

OPINION ON EIRST SUGGESTION OE ERROR.

Campbell, Special J.,

delivered the opinion of the court in response to the suggestion of error made by Theodore McKnighb, for appellees.

In disposing of this case on a former day, we gave full consideration to the claim of the cross-appellants that the court should declare their rights as to the land and decree partition; and, as they were defendants and had not exhibited a cross-bill, we held they were not entitled to any relief. We are “strenuously” urged by counsel to reexamine this question, and have done so, and have examined every citation of counsel, and nоt found one which, according to our apprehension, calls for a change of our view as heretofore announced. Our own cases certainly sustain this view. In Millsaps v. Pfeiffer, 44 Miss., 805, it is said: “It is the settled doctrine of equity that a defendant cannot pray anything in his answer, except to be dismissed, with his costs. If he has any relief to pray, ... he must do so by a bill of his own, which is called a cross-bill.” In Weeks v. Thrasher, *65252 Miss., 142, it is said: “It is impossible for us to understand how a decree could be made in this case for the sale by the administrator of the lot. . . . The answer of the administrator

could ask no relief, and the court could grant none.” To the same effect are Bay v. Shrader, 50 Miss., 326; Edwards v. Hillier, 70 Miss., 803 (13 South. Rep., 692) ; Preston v. Banks, 71 Miss., 601 (14 South. Rep., 258).

It is true that a court of chancery will shape its decrees to effect justice between parties, without regard to their attitude as complainants or defendants, but with due regard to the rules above announced. There are cases in which relief will be given to the complainant on terms, as illustrated by Harrison v. Harrison, 56 Miss., 174, and Ragsdale v. Alabama G. S. R. Co., 67 Miss., 106 (6 South. Rep., 630), аnd there are cases where relief may be granted between defendants, as declared in Arnold v. Miller, 26 Miss., 152; but they are exceptional and stand on jDeculiar grounds, and in our opinion this case does not come within the exception. We found one case which may be claimed as a precedеnt for the action asked of us in this. In a suit by a vendor of land to reform the bond for title on the ground of mistake and to enjoin an action by the vendee for breach of the condition, the decree reformed the bond and dissolved the injunction, leaving the vendee to his remedy on the bond.

On his appeal thе decree was reversed, because the chancellor had not declared the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rights of the vendee as to the course he might pursue in dealing with the case, Reese v. Kirk, 29 Ala., 406. The right and future course of the vendee were not involved in that suit and were not the subject of discussion by counsel, and announcement by the court on that subject was uncalled for. “Sufficient unto the day is the evil thereof” is a good maxim for courts as for individuals. We are not willing to follow such a precedent. Whatever may be true as to the right of a court to pursue such a course, its refusal to do so is not ground for *653reversal of a decree which gives all proper relief as properly-asked and stops at that.

We adhere to our former announcement on this subject.

OPINION ON THE SECOND SUGGESTION OP ERRER.

Campbell, Special J.,

delivered the opinion of the court in response to the suggestion of error filed on behalf of the ScdttishAmerican Mortgage Company and its vendees, by Calvin Perkins, Carruthers Ewimg, and Green & Green, counsel.

The complaint is that the court erred in not sustaining the defense оf res judicata, and as to the statute of limitations of ten years as to the land and of six years as to rents. The doctrine of res judicata is probably as well settled and understood as any in the whole range of jurisprudence. Its application is illustrated by many cases in our own reports and by vast multitudes elsewhere, so numerous as to disсourage any effort to cite them. The learning is familiar to every lawyer. “Nemo bis vexari debet pro una et eadem causa” is the maxim on which it rests. “Una et eadem causa” is the test by which to determine the question of res judicata. The parties may be the same, and the property about which the controversy is may be the same, in the two suits; but what is involved in the second may be entirely different from that involved in the former, and, if so, res judicata does not apply. The distinction is clearly made in Barataria Canning Co. v. Ott, post (s.c., 41 South. Rep., 378), and may be found in many other cases, while Thornton v. Natchez (decided at the same time), ante, 1 (s.c., 41 South. Rep., 498), .presents a case where the vital matter involved had been decided in a former suit, and it was rightly held tó be res judicata. Judgment on the same cause of action is always conclusive between parties and privies, but it must be the same cause — “una et eadem causa.” It is probable that there is really no difference of opinion between the court and the learned counsel in this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case as to .the law applicable, but that the difference is as to the case, and we address ourselves to that.

*654The former suit, the decree in which is invoked as res judicata, was brought by the complainant to cancel clouds and obtain partition of an interest he claimed in the land now in suit by virtue of two deeds, one made in 1873 and one in 1890. In designing his title he set fоrth and made exhibits of the deeds of 1847, not claiming any right in himself by virtue of those deeds, but presenting them as the source of the title of the grantors in the two deeds to him, by virtue of which alone he made any claim. These two deeds were held to be ineffectual to vest any title in him, and this court held that there was nothing else in the case calling for decision, and refused to consider anything else. Bunckley v. Jones, 79 Miss., 1 (29 South. Rep., 1000). "Undoubtedly the matter decided was put at rest forever, and it was that complainant has no valid claim to the land by virtue of the two deeds of which he propounded his claim. The present suit is for an interest in the same land based оn'entirely different grounds wholly independent of the two deeds in the former suit. All that was put in issue in the former suit was the claim of complainant to an interest in the land by virtue of two deeds, made, respectively, in 1875 and 1890. Nothing else was litigated or decided, and, therefore, nothing else was settled by that suit. It was needless for сounsel to cite decisions holding that a decree for partition is conclusive as to the interest of parties. That is too plain for dispute. There was no decree for partition in the former suit. What would have been the effect of such a decree we are not called on to dеcide. Had one been made, it is reasonably certain that the present case would never have arisen to vex counsel and court. Perhaps a decree for partition in the former suit would have precluded all further claim by complainant, not on the doctrine of res judicata, but on a totally different one, the doctrine of election; but as to that we do not decide. One of the rules as to res judicata is that it must not be open to argument or inference whether the same cause was decided. It must not be doubtful or uncertain. There must be certainty that the *655very matter in dispute has been the subject of judiciаl determination. Here we have indisputable evidence in the opinion of this court as to what was involved in the former suit.

On the statute of limitations of ten years, the argument of Messrs. Perkins & Ewing proceeds on a misapprehension of our opinion on that subject. It was not necessary to argue or quotе books to convince us that ignorance of one’s rights does not prevent the running of the statute of limitations. We have not held or intimated that it did.

We do not perceive any merit in the “new” suggestion of counsel, consisting of a quotation from the bill in the former suit spoken of. That is an averment that certain parties, including complainant, were tenants in common of the land. We held that they were such, and therefore the statute of limitations did not run as between them upon the facts of the case. We think it still necessary to set up the bar of the statute of limitations, unaffected by the statute, which makes the completion of the bar an extinguishment of the debt as well as the remedy.

In conclusion, we disclaim any purpose to overrule or modify any former decision of this court on any of the questions involved ; but we adhere to orir former views in this case.

Notes

Calhoon, J., having been counsel in the case before his appointment to the bench recused himself and J. A. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Campbell, Esq., a member of the Supreme Court bar, was appointed and presided in this case in his place.