Roberts v. Burwell

Smith, C. J., delivered the opinion of the court. IN DIVISION A. Burwell Roberts died during the year 1905 seized and possessed of certain land, and leaving surviving him his widow, Lou Roberts, five children, and two grandchildren, the son and daughter of a deceased child. By his last will and testament he devised each of these children by name a one-sixth interest in this land, and to the grandchildren, also by name, a one-sixth interest therein jointly. The will recited that: “The condition of the last six bequeaths are that my wife, Lou Roberts, shall not be disturbed in the possession of the house in which she and I have had our home during the last years of our lives together, as long as she lives. And that each of the last six beneficiaries of this, my last will and testament shall deliver to my wife, Lou Roberts, one bale of cotton weighing five hundred pounds each (see Amended Record 42) unless my wife prefers to receive a child’s part in the distribution of my lands and real estate, in which case each of said beneficiaries to whom a one-sixth interest of my lands and real estate has been bequeathed shall receive a one-seventh interest, instead of a one-sixth interest, my wife receiving the remaining one-seventh share of my lands and real estate.” In 1907 a proceeding for a partition of this land among the devisees was begun in the court below in which the widow appeared and, by a separate petition, joined in the request for the partition of the land, which petition, after setting forth that she accepts the six bales of cot — 466 — ton allowed lier as rent under said will and waives lier right to a share of the lands, continued as follows: “Petitioner states that said minor children are living with her on the old home, and she prays that when said land is divided that the commissioners shall first assign to said minors their share of the land, including the residence now occupied by the petitioner and. said minors, and that the remainder of the said land be divided among the other heirs.” The minors here meant are the two grandchildren referred to in Burwell Roberts'’ will.- In due course a decree was rendered partitioning the land in accord with the widow’s desire, the decree appointing commissioners so to do reciting: “That the said Annie Buchannon, Prank Roberts, Champ Roberts, Simon Roberts, and Eliza Hall shall each pay annually to Lou Roberts as rent one bale of cotton, weighing- five hundred pounds, as long as she shall live, as required by the terms of the will of Bur-well Roberts, deceased.” Afterwards Champ Roberts conveyed the land set apart to him in the decree to W. L. Dyer, and Simon Roberts conveyed his to W. B. Burwell, and in 1912 that set apart to the two' grandchildren was sold for taxes to W. B. Burwell and D. H. Ship. In 1914, Lou Roberts, the widow, exhibited her bill in the court below alleging in substance the foregoing, and further, that none of these devisees had delivered to her any of the cotton which by the will of Burwell Roberts they were charged to do, making parties defendant all of the aforementioned devisees of Burwell Roberts’ will, the present owners of the land devised to Champ and Simon Roberts and to the two grandchildren, and also certain persons, alleged in the bill to have purchased cotton grown on the land devised. The bill also alleged that the sale for taxes of the land devised to the grand-. — 467 — children was void for reasons not here necessary to he set forth. The prayer of the bill is framed upon the theory that the cotton directed to he delivered to her by the will of Burwell Roberts is a charge upon the land •devised and upon agricultural products grown' thereon. This hill was afterwards amended by adding thereto the following: • “She avers that during the year of 1914 she furnished to Orange Leason money and supplies with which to make a crop on a part of said land occupied by her during the year 1914, and that by reason' thereof she has and holds a landlord’s lien upon all the agricultural products raised by the said Leason on said land during the year 1914; that some time since, the Burwell Mercantile Company, notwithstanding complainant’s rights in the premises, entered upon the said premises and took into its possession one bale of cotton and cotton seed raised by said Leason during the year 1914 as aforesaid, of the value of sixty-sis dollars, and also took into their possession one horse, cow, and calf of the value ■of one hundred and fifty dollars, to which they had no right, title, or lien, and to which the complainant in this ease has and holds a lien under and by virtue of chapter 79 of the Mississippi Code of 1906. ■ “Whereof complainant prays that in addition to making answer to the matters and things set forth in the original bill of' complaint, and upon the final hearing hereof, complainant prays that she recover of and from the Burwell Mercantile Company the value of said produce and live stock taken and converted by them to their own use as aforesaid. And she prays generally for general relief.” ■ To this bill a general demurrer was interposed by all of the defendants, containing, among other grounds of demurrer, the following: First, that complainant has an adequate and complete remedy at law; second, that — 468 — appellant is estopped by the decree in the partition proceeding from claiming any lien on or right in the land here in controversy; third, the three and sis year statutes of limitation; fourth, multifariousness. This demurrer was sustained by the court, the bill dismissed, and from the decree so doing this appeal is prosecuted by H. S. Roberts, executor of the estate of Loú Roberts, she having died in the meantime. Appellees’ main contention in support of the decree of the court below is that by consent to the division of the land among the devisees in Burwell Roberts’ will she waived any lien thereon or right therein not specifically preserved to her in the decree under which the partition was made. This contention is without merit. By accepting the provisions of the will and entering upon the enjoyment of the land thereby given to them, each of the children of Burwell Roberts severally, and the two grandchildren jointly and severally, became liable to deliver annually to 'Lou Roberts one bale of cotton, and upon his or her failure so do he or she became liable in- an action at law for the value thereof (Red v. Powers, 69 Miss. 242, 13 So. 586); the bale of cotton directed to be delivered by each being also a charge upon his or her share in 'the land but not .upon the agricultural products grown thereon, enforceable by a suit in equity. Cady v. Cady, 67 Miss. 425, 7 So. 216; Perkins v. Bank, 81 Miss. 362, 33 So. 18. In other words, each of the devisees in the will, by entering upon the enjoyment of the land devised, promised by implication to deliver to the widow one bale of cotton annually, the performance of which promise by the terms of the will is secured by a lien on his or her interest in the land,, but not upon the agricultural products grown thereon,, from which it follows that the bill discloses no liability as to those defendants who purchased agricultural products raised on the land, and, had they filed separate — 469 — demurrers, the bill could have been dismissed as to them. The bequest to Lou Roberts is not a trust within the meaning of section 3125; Code of 1906 (section 2489, Hemingway’s Code), and is governed as to the time within which suit must be brought by section 3097, Code of 1906 (section 2461, Hemingway’s Code), for the reason that the implied promise of each of the devisees to deliver one bale of cotton annually to Lou Roberts is to perform a contract, the terms of which are contained in ^written instrument, that is, in the will. Washington v. phone Co. v. Williamson, 101 Miss. 1, 57 So. 559. While the failure of each of the devisees to deliver to Lou Roberts the cotton which he or she, as the case may be, was obligated by the will to do constitutes a separate cause of action, nevertheless they may be joined in •equity in one suit for the reason that where “the interest and liability of the defendants, though separate, ■flow from the same fountain, or radiate from the same •center, or have a common connecting link, the joinder of such defendants and matters in the same suit is admissible.” Gribson’s Suit in Chancery (2 Ed.), section 149; Tribette v. Railroad Co., 70 Miss. 182, 12 So. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642; Cumberland Telephone Co. v. Williamson, 101 Miss. 1, 57 So. 559. The amendment to the bill hereinbefore set forth made the bill multifarious, for it does not appear, either from it or from the original bill, that a decision of any of the other matters herein involved will have any bearing upon the liability vel non of the Burwell Mercantile Company, because of the alleged purchase by it of property upon which Lou Roberts is alleged to have a landlord’s lien, so that the demurrer for this reason should have been sustained, but the bill should not have been dismissed, but should have been dealt with as provided by section 598, Code of 1906 (section 358, Hemingway’s Code). Reversed and remanded. — 470 — Ill BANC. Per. Curiam. This cause was decided on a former day by Division A of this court, but the judgment then rendered was afterwards set aside and the cause submitted to the court in banc, a majority of which are of the opinion that the decree of the court below should be reversed,, and the cause remanded, to be proceeded with in accordance with the opinion rendered by Division A on the former hearing, which is now adopted as the opinion of the court. jReversed and remanded.