Owen v. Monroe County Alliance

Wiiiteield, J., delivered the opinion of the court. The bill filed by appellants had three objects. First, to restore the original deed from Timberlake, which had not been recorded, and had been destroyed; second, to cancel the quitclaim deed from Timberlake to the same grantees, for the same property, subsequently made; and, third, to enjoin the prosecution, at law, of the unlawful entry and detainer suit instituted by appellees, and convene all the parties in the chancery court for a final settlement there of all their respective rights. The [506] chancellor, in the first decree, restored the original deed, canceled the quitclaim deed, and held that the appellants were •trustees ex maleficio, and should respond to the Monroe County Alliance when discovered, but that appellees were not the Monroe County Alliance. He held nothing as to the injunction. On appeal we dealt with but one proposition, and held, as to that, that the appellees were the Monroe County Alliance. We left undisturbed the chancellor's finding as to the two deeds, and as to the appellees being trustees ex male-ficio. This statement makes it clear that our decision was not res judicata of the question whether the action of unlawful entry and detainer lay. Did it lie in the state of case made by the record? It is obvious that the appellees never were in actual possession, hence they could not have been deprived of the ‘possession in any way. It is equally clear that there was no “contract, express or implied,” as to the possession between appellants and appellees, after the expiration of which the appellants held over. This action lies only in the cases specified in the statute. McCorkle v. Yarrell, 55 Miss., 576. It is true the Monroe County Alliance could only hold possession through an agent. But what the testimony shows is, not that appellants held as agents — that the relation of principal and agent was recognized and existed — but that, whatever the alliance thought, the appellants were secretly and wrongfully claiming the property as owners. The law did not allow them to stand in the character of owners, but, from their acts and conduct, stamped upon them their true character of trustees ex maleficio. This character they made for themselves by their wrongful conduct, and becoming thus trustees ex maleficio, they become liable, under the principles of equity applicable to those occupying that relation to others whom they have wronged, to answer in equity; and equity has ample power, on proper pleadings, to award the possession or the writ of assistance to make it effective. But all this is equitable ground of relief, [507] created by the wrongful conduct of the parties/ not a right to the possession arising under § 4461 of code of 1892. We do not think the action of unlawful entry and detainer lay in the state of case made by the record. It follows that the injunction should have been retained until the final hearing. The appellants having invoked the jurisdiction of the chancery court, and that court having now complete jurisdiction, it should dispose finally of the whole matter. The appellees have not asked affirmative relief. They should obtain leave to amend their answer and make it a cross bill, and they will thus be in an attitude to secure, if the proof warrants it, a decree for possession. Decree reversed, injunction reinstated, and cause remanded to Joe proceeded ivith in accordance with this opinion.