Turner v. Morris

27 Miss. 733 | Miss. | 1854

Mr. Justice Handy

delivered 'the opinion of the court.

The appellees filed their bill on the chancery side of the circuit ■court of Lawrence county, stating in substance, that the complainant, Lavisa, was the widow of one King, who died in the year 1838, intestate, seized and possessed of a certain described town lot in the town of Monticello, in which she was entitled to dower; that a petition was filed in the probate court of Lawrence county at March term, 1848, for the allotment of her dower, and commissioners appointed for that purpose, who set off her dower in the premises by metes and bounds, allotting to her one third thereof, comprehending houses, offices, and other improvements, but that possession could not be delivered to her by the sheriff, because said premises were indivisible, and because the defendants were in possession of the buildings, and refused to deliver possession of them ; that the defendants have been in possession and enjoyment of the premises, or receiving the rents and profits, since the death of King, and refuse to account for the portion due the widow. The bill claims an account and decree for the portion of the rents and profits due her for the period before, as well as since, the assignment of her dower.

On failure of the defendants to appear and make defence to the bill, it was taken as confessed, and the case referred to a commissioner to take an account of the amount due the widow; which account was taken upon notice and returned, and confirmed at April term, 1849. At April term, 1850, the defendants made a motion to set aside the report and proceedings of the commissioner, and all orders taken thereupon, because no decree of reference to a commissioner had been made, and because no account was taken as to the property in the possession of the defendant Turnér. This motion was overruled, and a decree rendered for the complainants, according to the report; and thereupon the case is brought here by writ of error.

The principal question presented here is, whether the case made by the bill is sufficient to entitle the complainants to come into a court of equity for a recovery of the rents and profits to which the widow was entitled on account of her dower.

It is undoubtedly true, that a court of equity should not interpose in ordinary cases of mesne profits, where a clear and adequate remedy exists at law, and unless some special circumstances are shown to justify the jurisdiction, among which are enumerated the want of discovery, some impediment at law, the existence of a constructive trust, or the necessity of interposing to prevent multiplicity of suits. 1 Story, Eq. Jurisp. § 512. But this bill claims an account not only of the rents and profits since the assignment of’dower, which fixed the legal right, but also before the assignment, and when the legal right was not ascertained. This claim for an account before the legal right was fixed is of an equitable nature, and is held to be a sufficient ground for the assistance of a court of equity. 1 Story, Eq. Jur. § 626; and having obtained jurisdiction for that purpose, it was proper to exercise it in settling the entire controversy, and thereby prevent multiplicity of suits.

In addition to this, the jurisdiction in cases situated like this, seems to be justified upon general equitable principles of account, as applied to the nature of the account to be taken here. A court of common law, under the strict rules governing it, could have taken into view nothing but the value of the property, and rendered judgment for one third of it, without regard to any equitable circumstances, such as valuable improvements put upon it, increasing its yearly value, or any other purely equitable claim of the defendants, going to show that the complainants should not in conscience recover more than the use and possession of the premises, under the circumstances, were really worth. And here the property appears to have been in the possession of several defendants at different times, which would have rendered an account, adjusting the liabilities of the several parties, difficult and complicated at law, if, indeed, complete justice could have been done at all in such actions to the rights of the complainants, without prejudice to the rights of the several defendants. These considerations show that the remedy is more complete and adequate in cases of this nature in equity than at law, and justify the jurisdiction in the present case.

Again; it is urged in behalf of the plaintiffs in error, that the proceedings in the probate court for the assignment of Rower were void, because the petition was filed in the name of the widow alone, she being then married to the complainant, Nathan Morris. This would not render that proceeding void. Had it been urged at a proper time, and in a proper manner, it might have defeated .that proceeding. But it cannot be taken ■advantage of in a. collateral proceeding, and it does not render the assignment absolutely void. If, however, the assignment of Rower were void, this would be an additional ground to entitle the party to relief in equity, as the legal right would in such «ase be unascertained.

Again; it is said that the motion to set aside the commisssioner’s report, and account of rents and profits, should have been sustained, because, in the order of reference to the commissioner, the case referred is stated to be “ Levisa Morris ” against the defendants, when it should have been Nathan Morris and Levisa his wife, complainants. This objection is entirely formal, and no prejudice could have arisen to the defendants by reason of it. The order of reference and the subsequent proceedings show that the matter referred was an account of the rents and profits due the complainant, Levisa Morris, for her dower interest in the lands of King. Of this the appellants had due notice before the account was taken. They appeared at the time it was taken, and afterwards had due nptice' to make objections to it, and failed to make objections. Under such circumstances they could have sustained no injury by the formal mistake of the complainants’ name, and we think this was no valid objection to the report and proceedings under it.

The decree is affirmed.

A petition for a reargument was filed in this case by the counsel for appellees, but the court refused to grant it.