Union & Planters' Bank & Trust Co. v. Corley

132 So. 78, 161 Miss. 282, 1931 Miss. LEXIS 232

• Court: Mississippi Supreme Court
• Decided: January 12, 1931
• Docket: No. 29023.
• Status: Published

Opinions

On the Plea in Bar.

Ethridge, P. J.,

delivered the opinion of the court on the plea in bar.

There was a suit by the Union & Planters’ Bank & Trust Company against W. D. Corley to enforce by a specific performance a contract of sale of certain lands. It appears that in the contract sought to be specifically enforced there was a provision for payment of rent in case the contract of sale was not carried out. On the trial below the court held that there was no right to a specific performance of the contract, because a deed was hot tendered showing a merchantable title during the year 1927, and the court decreed rent in accordance with the stipulation of the contract and denied the specific performance of the contract, from which an appeal is prosecuted to this court.

There was an agreement on the date the decree in the court below was rendered that Corley would pay the taxes on the place for the current year without prejudice to the right of the parties ■ to appeal, and that, if the judgment was not reversed, he would be credited with the amount of taxes so paid upon the property involved as against any rent adjudged against him or that might be due. The plea in bar alleges that complainants ought not to maintain their appeal from the decree of the chancellor denying the right of the appellants to compel the appellee to specific performance under the, contract of February 21, 1927, and dismissing the bill in that regard, because the appellee says that, after the rendition of the decree and before an appeal was taken by the complainants, to-wit, in January, 1930, the appellant took possession of said property in Le Flore county, Missis sippi, contracted to be conveyed to the said W. D. Corley in the said contract of February, 1927, and rented a part of the same out for the year 1930 to tenants at an aggregate rental of two thousand eight hundred dollars, for which said tenants executed to the appellants their notes; and that they also rented to one Williams about four hundred acres of said land at one thousand three hundred dollars for the year 1930, for which they received a rent note; and that, after the said Williams had planted a crop on the said land so rented by him, the water came up and overflowed the same and drowned his crop, out, and he thereupon abandoned the land so rented by him. It was further alleged that the appellants are now in possession of the said lands, exercising rights of ownership over the same. It was further alleged that the appellants in December, 1929, or January, 1930, offered the said lands for sale to one C. C. Calhoun, who, on account of the fact that the lands overflowed every 'year, declined to take it; that they then offered the same for sale to Robert Funchess, but, after an examination of the same by the said Funchess, finding from the watermarks on the trees that the same overflowed every year, he declined to buy, but offered to rent the same for the year 1930; that, by the acceptance of the benefits of said decree in going in possession of said lands and renting the same out and offering to sell the same, the appellants thereby waived the right to appeal from the decree.

The appellants answered that they ought not to be barred of their said appeal because in the latter part of 19291 they were informed by the manager of Corley, that. Corley was going to abandon the said premises after the gathering of the crops for the year 1929, and that, realizing that the property would deteriorate in value hud be abandoned by tenants and become less valuable as a plantation by being neglected in its cultivation, they employed a caretaker to look after the said premises for the benefit of all concerned and subject to the right of the- parties to the litigation pending on appeal, and that the agent was not authorized to sell and was only authorized to rent subject to the rights of the appellants and the appellee in the discharge of the appeal in the (Supreme Court. They were advised by attorneys that it was 'necessary for them to take this course to mitigate the differences as far as possible, and that they acted in good faith upon said advice, and the property was handled in the manner stated for the benefit of all concerned.

The appellants have filed affidavits setting forth the facts in accordance with their reply to the plea while the appellee has filed affidavits tending to sustain the plea.

After a careful consideration of all the affidavits presented and the law governing the case, we feel that we should deny the plea in bar. The decree of the court did not specifically decree the right of possession, and the affidavits of the appellee tended to show that he recognized the right of possession. If it be true that Corley intended to abandon the place at the end of 1929 and so informed the appellants, or their agents or attorneys, then there would be no good reason to hold that appellants could not employ a caretaker and rent out the premises for the best interests of all concerned, during the pendency of the litigation, without forfeiting his right of appeal. To so hold would accomplish no good purpose, but on the contrary would cause one or the other litigants to suffer loss and injury. Before the plea in bar of appeal should be sustained, it must appear at least by a preponderance of the evidence that the appellants have taken a course of action inconsistent with the appeal, and accepted some benefits by the decree rendered in their behalf. We do not think the present case comes up to this standard, and the plea in bar will be denied, and the cause retained for a consideration upon its merits.

Plea in bar overruled.