56 Miss. 352 | Miss. | 1879
delivered the opinion of the court.
The appellant, Tatum, is not entitled to an allowance for his expénditures in making improvements on the land, but he should not be charged an increased rent, caused by the additions to the land, for which he is denied compensation. Justice will be done by charging Tatum with the rent which the land would have yielded if no improvements had been put on-it, and it had been rented as it was without them. To the extent that the rent was increased by the expenditures of Tatum he should not be required to pay it. It is enough for him to-suffer the loss of his unauthorized expenditures, without having his loss augmented by requiring him to pay a rent which his expenditures partly produced. It is not proper to require Tatum to pay the commissioner any part of what, by the record, appears to be his by assignment of some of the legacies. The complainant in the bill must be content with getting what is.hers ; she has nothing to do with what belongs to Tatum, nor has the court. It should not undertake to administer justice ‘except in behalf of suitors. No more should be required to-be paid to the commissioner than will pay complainant, and costs. No other person has invoked the aid of the court. Complainant is entitled to be paid her legacy in full, if the
Complainant is not entitled to ten per cent interest on her legacy. No law authorizes it. Six per cent is legal interest; ten per cent is conventional.
It is a mistake to suppose that this was res adjudicata, by reason of the fact that this rate of interest was allowed by the first decree in this case, which was appealed from by the complainant, but not by Tatum. The argument is, that because he did not appeal he is concluded by that decree as to the rate of interest, although the decree on the appeal of the other party was reversed. This view is the result of a misapprehension of the cases cited to support it. The decree spoken of was adverse to complainant, who appealed from it, and it was reversed, and thereby wholly vacated and annulled, and thereafter was to be treated as not having been made. After the decree of reversal by this court, there was no decree in the case except the decree reversing the decree of the Chancery Court, audit was a total reversal.
It is proper to treat Tatum as paid what may be due to him of the estate by what he has received, and to require him to pay any sum which may be necessary, beyond the proceeds of the sale of the visible estate, to pay what is due complainant.
The value of the estate should be ascertained, and the legacies be paid if the estate is sufficient. If not, they are to be paid pro rata. But, as the estate may consist chiefly of what Tatum owes it, the money derived from the sale of the property, as far as may be necessary, should be devoted to the payment of Mrs. McLellan, and Tatum must be held to be paid by what he has received of the estate. He should not complain of being required to accept what he owes as a payment of what is due him.
Tatum is entitled to the corn and cotton on hand at the death of Mrs. Tatum, the tenant for life. The will does not
Decree reversed, and cause remanded to be proceeded with in accordance with this opinion; the appellee to pay all costs in this court.
