Carpenter v. Douglass

Cook, J., delivered the opinion of the court. •W. F. Douglass and his wife, Cornelia Dbuglass, filed their bill of complaint in the chancery court of Kemper county, alleging that W. F. Douglass leased certain lands in 1892 from J. C. Carpenter and his wife, and that in the lease the lessors agreed to keep the taxes on said lands paid; that afterwards he bargained for the land for the sum of two thousand and four hundred dollars, to be paid in ten annual payments of two hundred and forty dollars each; that Carpenter executed and delivered to him his bond for title, and that he went into possession of the land and remained in possession thereof until he had' paid all of said notes, except two, which were not due; that Carpenter agreed to keep all the taxes paid on the lands; that Carpenter failed to pay the taxes, and that complainant had been forced to pay same to prevent a sale of the lands by the tax collector; that Carpenter died intestate in 1908, without other property than the notes above mentioned; that there was no administration of his estate. The heirs at law of Carpenter were made parties defendant, and the prayer was for an accounting of the taxes due; and, when said accounting was had, the court would decree a credit on his notes for the amount of taxes paid by him, and that, upon the payment of the [82] balance so found due upon the notes, tbe court would require defendants to deliver up Ms notes for cancellation and appoint an administrator, or commissioner, according to the fancy of the court, to make and execute a deed to him for the land. A demurrer to the bill was interposed, which was overruled; and, no further defense being made, a decree as entered granting complainants full, complete, and satisfactory relief exactly as prayed for. The bond for title was filled as an exMbit to the bill, a mere reading of which demonstrates that complainant was mistaken when he said, ‘‘ That, by the terms and conditions of said contract, the said J. Q-. Carpenter and M. A. Carpenter agreed to make a warranty deed, and agreed to keep the taxes fully paid upon said land as the same became due and payable.” There is not a word or syllable in the contract wMch could, by any sort of construction, be warped into a covenant to pay the taxes. It is contended that, as the demurrer admitted the allegations of the bill to be true, the court properly overruled the same. But the answer'to tMs contention is that the exMbit is as much a part of the bill as the allegations. So that it amounts to something like calling a horse a cow, and then producing the horse to prove the assertion. This court has held that “the vendor by title bond holds the legal title only as trustee for the vendee, . . . while the beneficial interest rests in the vendee. The latter, therefore, in the absence of some special stipulation or exceptional circumstances, is liable for the taxes.” Watson v. Sawyers, 54 Miss. 64, citing Bradford v. Union Bank of Tennessee, 13 How. (U. S.) 57-64, 14 L. Ed. 49. The bill of complaint sets out no ground for relief, and the case is reversed and bill dismissed. Reversed, and hill dismissed, OPINION ON SUGGESTION OF ERROR. Upon a former day of this term this case was reversed, and bill dismissed. 61 South. 161. The case is again be [83] fore us, upon a motion to modify the former judgment and remand for further proceedings in the chancery court. The case was reversed, for the reasons given in the opinion of the court. It does, however, appear by the averments of the bill demurred to that complainant is probably entitled to a credit for the taxes paid before the execution of the bond for title, and inasmuch as. there has been no administration upon the estate of the deceased obligor in the bond for title, and for the further reason that the heirs at law of deceased are minors, we now remand the cause, wdth directions to the lower court. Upon the payment of the money due by appellees, the court will direct a commissioner appointed by it to execute and deliver to appellees a deed to the land involved in this controversy. Appellees are taxed with the cost of this appeal.