Cotten v. Cotten

67 So. 2d 268, 218 Miss. 217, 37 Adv. S. 10, 1953 Miss. LEXIS 532
CourtMississippi Supreme Court
DecidedOctober 5, 1953
DocketNo. 38829
StatusPublished

This text of 67 So. 2d 268 (Cotten v. Cotten) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotten v. Cotten, 67 So. 2d 268, 218 Miss. 217, 37 Adv. S. 10, 1953 Miss. LEXIS 532 (Mich. 1953).

Opinion

Ethridge, J.

This appeal raises the question of whether the facts charged in the bill of complaint can withstand special demurrers pleading that appellant, complainant below, Hilton I. Cotten, is barred from asserting his claim to a trust in lands, personal property and money, by his laches and long neglect in asserting his rights. The Chancery Court of Pike County sustained the special demurrers, and dismissed the bill, with thirty days leave to amend, from which this appeal was taken.

The facts charged in the bill, which for instant purposes must be assumed to be true, are long and in considerable detail, so we will not set them out except where necessary to explain this decision.

Junius Lea Cotten, Sr., died in 1897 leaving a will in which he devised to his wife, Tommie Lea Cotten, Lots 4 and 8 of Square L in the City of McComb, Mississippi. He devised to his son, Junius Lea Cotten, Jr., certain lands in Amite County, and to his son, Willie R. Cot-ten, certain other lands in Amite County. The proceeds of stated life insurance were divided equally between Junius Junior and Willie. The will was probated. Three months after the testator’s death in October, 1897, appellant, Hilton I. Cotten, was born to the widow, Tommie Lea Cotten, in January, 1898. As a posthumous child, appellant was entitled to a one-fourth interest in his [221]*221father’s entire estate. Miss. Code 1892, Sec. 4490; Miss. Code 1942, Sec. 658, 659.

Appellant Hilton I. Cotten filed the present bill of complaint in October, 1950, which is about 31 years, nine months after appellant had become sui juris in 1919. He seeks to recover his one-fourth interest in his father’s estate. During the years intervening between his birth and this suit there have been numerous conveyances of some of the lands involved. These grantees, as well as the appellant’s brothers, Junius and Willie, are made defendants. Appellant’s mother died in 1945. To support his claim appellant charges that the guardianship and estate proceedings after his father’s death in 1897 are void, because he and his brothers were not properly summoned into court; and that a 1901 commissioner’s deed which conveyed the Amite County lands to his mother created in her a trust for her children, since the lands were bought with the proceeds of a life insurance policy belonging to the three children; and that Junius had assured him that when their mother died, the property would be divided and appellant would receive his just share.

Two special demurrers pleading laches were filed. With reference to them, it should be noted that “as to grounds every demurrer is an entirety whether general or special, but as to parties a special demurrer, if several as well as joint, may be severed as to parties and sustained as to one or more, and overruled as to the others.” Griffith, Miss. Chancery Practice, (2d Ed. 1950), Sec. 306. The same text in Sec. 305 states: “A joint and several special demurrer . . . may be sustained as to some complainants or some defendants and overruled as to others. ”

The chancery court sustained what for convenience we shall call Special Demurrer No. 1 of Mrs. Carrie Reeves O’Neil, Mrs. Irene Weppler, Mrs. D. R. Patterson, Mrs. A. P. Hardy and First Federal Savings and [222]*222Loan Association of McComb. This action was proper as to all of these parties except First Federal Savings and Loan Association of McComb. The bill charges that on September 21, 1926, the widow of testator conveyed a lot 50 feet by 100 feet off the north end of Lot 4, Square L, City of McComb, to Mrs. Carrie Morris Reeves, for a recited consideration of $2,000, and in 1944 Mrs. Reeves conveyed the same property to her daughter, the demurrant, Mrs. Carrie Reeves O’Neil. On the date of the sale in 1926 appellant was 28 years of age and has stood by silently for more than 24 years before raising any question as to the demurrant’s title. Appellant under such circumstances was grossly negligent in omitting seasonably to assert his rights to this property, although he had ample opportunity to do so. Hence his laches bar this claim now. The fact, if true, that grantees had knowledge of his claim does not excuse appellant’s neglect in asserting his rights. 19 Am. Jur., Equity, Secs. 489-513; Comans v. Tapley, 101 Miss. 203, 57 So. 567 (1912); Reddy v. Aldrich, 11 So. 828, (Miss. 1892); Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848 (1950); Alewine v. Pitcock, 209 Miss. 362, 47 So. 2d 147 (1950).

The demurrants, Mrs. A. P. Hardy and Mrs. D. R. Patterson, along with their sister, Mrs. Irene Weppler, demurrant, are prior owners of the N% of Lot 7, Square X, City of McComb, and Mrs. Weppler is charged to be claiming title when the bill was filed. The bill charges that while appellant was a minor in 1910, appellant’s mother borrowed $1,500 on the home place in Lot 4, Square L, and with that money purchased the N% of Lot 7, Square X, that she then built a residence on it, and in 1912 sold it to John Taylor, the father of Mrs. Weppler, Mrs. Patterson and Mrs. Hardy, from whom they inherited it about 1944. In 1944 Mrs. Patterson and Mrs. Hardy conveyed their interest in the property to Mrs. Weppler. The bill attempts to charge the said three demurrants, and their father, with knowledge of these [223]*223transactions by appellant’s mother which took place in 1910. Appellant had 31 years after his majority to attack this transaction and failed to do so, and for the reasons stated above, he is barred by his own laches.

The other demurrant in Special Demurrer No. 1 is First Federal Savings and Loan Association of McComb. The bill charges that after the death of the widow, Mrs. Tommie Lea Cotten, in 1945, Junius attempted to convey in 1946 the N]4 of Lot 8, Square L, City of McComb, to William H. Fortenberry, and several months thereafter Fortenberry and wife attempted to execute a deed of trust secured by this property for the benefit of the First Federal Savings and Loan Association of McComb to secure a debt of $6,250. In 1933 the widow, Mrs. Tommie Lea Cotten, had attempted to convey to defendant Junius Lea Cotten, Jr., this property. The bill charges that the grantee, Junius, and the 1946 grantee, Fortenberry, had actual and constructive knowledge of all of the facts including the defective estate and guardianship proceedings, and the trust with appellant, but it did not charge that First Federal had either actual or constructive knowledge of such facts. Hence the special demurrer by First Federal as to that item alone would have been good. However, the demurrer was bad as to that part of First Federal’s special demurrer which was directed to its 1946 deed of trust from Maurice Edmonds, et al, which was secured by all of Lot 4, Square L, less 50 feet off the north end thereof, because the bill as to that deed of trust charges that First Federal had actual and constructive notice of the facts rendering the title defective and subject to the trust. In 1933 Mrs. Tommie Lea Cotten had attempted to convey to her son, Junius, the mortgaged lands, and in 1946 he conveyed them to Edmonds, et al., the mortgagors to First Federal, all of whom the bill charged had actual and constructive notice of the facts rendering these deeds invalid. The bill also avers that Junius had led appellant [224]*224to believe that after their mother’s death, the property would be divided and appellant would receive his just share. And as to the described part in Lot 4 it charged the First Federal with notice of the facts.

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Related

Boyd v. Entrekin
45 So. 2d 848 (Mississippi Supreme Court, 1950)
Alewine v. Pitcock
47 So. 2d 147 (Mississippi Supreme Court, 1950)
Buckingham v. Jones
122 So. 531 (Mississippi Supreme Court, 1929)
Weathersby v. Pearl River Lumber Co.
41 So. 65 (Mississippi Supreme Court, 1906)
Moore v. Evans
54 So. 438 (Mississippi Supreme Court, 1910)
Comans v. Tapley
57 So. 567 (Mississippi Supreme Court, 1911)

Cite This Page — Counsel Stack

Bluebook (online)
67 So. 2d 268, 218 Miss. 217, 37 Adv. S. 10, 1953 Miss. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotten-v-cotten-miss-1953.