Hamilton v. Halpin

Woods, C. J., delivered the opinion of the court. 1. The position of appellants’ counsel to the effect that the taking possession of the property by the trustee was a condition precedent, is, we think, indefensible. The trust-deed declares that “ it shall be the duty of the party of the third part herein, at the request of the holder of said note, to take into his possession all the property described herein,” etc. Clearly the case falls within the rule prescribed in Tyler v. Herring, 67 Miss. 169, and in Vaughn v. Powell, 65 Ib. 401. The trustee, by the provision quoted, had the right to take possession of the property, at the request of the beneficiaries, but the taking possession was not a condition precedent to the power to sell. 2. The contention that the bill charges that no sale was ever made by the trustee, and that the answer does not deny this, has been attentively examined and considered. The charge of the bill substantially is, that two of the complainants were at the courthouse in Vicksburg, and on the day of sale, and that they neither heard nor saw any sale; that on information they have doubt if any sale actually took place, and they aver there was no public ven109 due. Tbe charge is part of the sweeping complaint of Halpin & Co.’s fraudulent conduct throughout, and particularly of their fraudulent behavior in concealing and in making the sale by the trustee. In her answer Mrs. Meirs says: “ She also expressly denies all knowledge, belief or suspicion of fraud [the fraud alleged to have been perpetrated by Halpin & Co.] practised upon complainants by any one else in connection with the lands.Respondent says that as to the several charges in said bill relating to fraud, covin and misrepresentation practised upon complainants in obtaining their signatures to said deed of trust; in concealing from them the time of said sale ; in misapplying proceeds of cotton; in extortionate prices charged and in usurious interest and unlawful commissions; and in the sale of said land, if any such fraud there was, she is wholly without knowledge, information or belief, and insists that in the controversy between her and complainants such charges are wholly immaterial; but, if held to be material, she insists that strict proof thereof shall be made.” It occurs to us that there was such denial of the charge of fraud in the concealment or omission of the sale by the trustee as to prevent our considering this charge of fraud as confessed by her. We think her denial sufficient, and that it put complainants on making proof of the charge. And we can finally dispose of this branch of the case by adding that no proof on this point was made or attempted to be made, though both the complainants who were said to have been at the court-house all day, on the day of the trustee’s sale, were fully examined, and though the complainant who made affidavit to the bill was also thoroughly examined in his own behalf. 3. There is no reversible error in the refusal of the chancery court to allow proof of the failure of Halpin & Co. to pay the proper privilege tax. It was said by this court in a similar case, Deans v. Robertson, 64 Miss. 195, “who seeks equity must do equity; a bill to cancel a contract on the ground of illegality will not be maintained unless it offers to pay what is justly due,” and this rule is well settled and was of force in the action of the court complained of. 4. From the position on which we rest our opinion of the mate [110] rial and controlling question involved, it will appear that only that question now remains to be considered. It is argued by counsel with great learning and ability that complainants were tenants in common of the lands, were using and occupying homesteads therein to an extent covering the entire plantation, and that the wives not having joined in the conveyance, their homestead rights are not affected by the transfers from the trustee to Halpin & Co., and from the latter to Mrs. Meirs. It is altogether correct, as a legal proposition, that tenants in common may have and enjoy homestead exemptions in the common estate; but, in our view of the case, this proposition becomes immaterial. There is proof that all the 'complainants joined together in the venture, which resulted in the conveyance to them by Irby and wife of the lands in controversy; and there is proof that the persons engaged in the venture were known as the Bear Camp Colony' —a community of persons voluntarily united as a single entity. There is striking proof that this was recognized and authorized by complainants themselves in the face of exhibits 2 and 3 to the original bill, in which the balances due the complainants, named in those exhibits, after settlement of their individual accounts, were transferred to the credit of the Bear Camp community account, and these exhibits, furnishing this proof, were produced by complainants. Exhibit 11 to Jno. E. Halpin’s deposition affords striking proof touching the character of the venture of complainants. It is a formal trust-deed executed, in terms, by the “ Bear Camp Colony” to Halpin & Co., and was acknowledged before a proper officer by “Peter Plamilton, President of the Bear Camp Colony.” There is yet more significant proof of the character which complainants assumed and which they really possessed, in their own agreement in writing, duly acknowledged before an officer, and made exhibit 10 to Jno. F. Halpin’s deposition. This instrument, after reciting the purchase of the lands by complainants from Irby and wife, and the execution of their several promissory notes for the purchase-money, says: “ That when said notes shall all have been paid off and satisfied according to their meaning and tenor, then the interests, shares and claims in and to said land of said [111] respective parties shall stand, and be in proportion to the several amounts paid respectively by said parties in settling said notes; that is to say, that each man’s share in said land shall bear the same proportion in quantity and value to the whole land, as it then exists, as the sum or sums of money paid by him in settlement of said notes bears to the whole sum paid by all the parties in payment of said notes, and if any of said parties should pay nothing on said notes, or should have paid nothing heretofore, he shall have no share in said lands. This agreement being to reduce to writing the verbal understanding and agreement of said parties when said lands were conveyed to them as aforesaid.” From this instrument made by complainants, solemnly and formally, it appears with all reasonable certainty that these parties, complainants, neither thought themselves to be, nor, in fact, were tenants in common. The language of the instrument palpably excludes any such idea. From the instrument it seems that at the time of its execution, and at the time of the purchase from Irby and wife, complainants, as a whole, were engaged in a venture that it was expected and hoped would result in securing the plantation to the complainants, or to some of them. What interest, if any, any one or all of the purchasers had, or might finally have, was conjectural only. If any member of the community proved industrious and economical and met with success in his labors, he would have proportionately in the ultimate settlement of the rights of ownership of complainants; if any member of the oamp proved idle, thriftless and improvident, he might, at least, be entitled to absolutely nothing in the outcome of the venture. Each of the complainants was to put in time and toil and money, and his share in the land was to be proportionate to and determined by the labor and capital he put in. If he put into the common stock much, he was to receive much; if he put in little, he was to receive little; if he put in nothing, he was to receive nothing. Has a holding, thus marked and characterized, a single distinctive feature of a tenancy in common? We are bound to answer, no. What, then, was the Bear Camp Colony ? And what was the nature of the property held by them in the plantation? They [112] were a partnership in that particular enterprise — partners engaged in one common venture — and the plantation was an asset of such partnership, and liable for its debts, just as any other asset of a partnership. Until the debts of the partnership had been paid, the real estate of the partnership is to be treated as personalty, as between the partners and their creditors. Of course, after the dissolution of the partnership, as between the partners, the realty is held by the partners as tenants in common. This view of the case renders unnecessary any opinion on the questions presented touching the rights of any or all of the complainants as homestead exemptionists, as set up and asserted in their bill. It is to be regretted that the written and documentary evidence in the record uniformly contradicts the statement of the complainants when room for such contradiction exists. The instances are numerous, and we would fain charge these painful lapses from absolute verity on the part of complainants, to their ignorance of some things which they plainly did and which they deny, and to their forgetfulness of others. But the palpable and violent contradictions are painfully present, and the complainants’ cause is no way assisted thereby. On the facts, we see no cause to disturb the decree of the chancellor, and it is Affirmed.