Northern v. Scruggs

Stevens, J., delivered the opinion of the court. Appellee, Mrs. J. H. Scruggs, in December, 1908, filed her original bill of complaint in this cause against H. A. Brazill, Irene Brazill, Minta W. Brazill, Ethel — 367 — Brazill, and John P. Brazill, the husband and minor children of Mrs. Laura T. Brazill, now deceased. In her bill it is averred that H. A. Brazill and his wife, Laura T. Brazill, executed and delivered to C. R. Sykes, trustee, for the use and benefit of Mrs. G. A. Sykes, a deed of trust upon the three hundred and eighty acres of land, the property involved in this suit, to secure an indebtedness of two thousand five hundred dollars evidenced by promissory note due and payable December 1, 1903', with ten per cent, interest per annum from date; that the said deed of trust was duly filed for record; that on January 20, 1904, the said promissory note and deed of trust were for value transferred and assigned ,to the complainant; that the trustee named refused in writing to act as trustee; that under the provisions of the deed of trust complainant as assignee appointed in writing T. B. Gibson, substituted trustee, and had the written appointment filed for record; that thereafter the substituted trustee advertised the lands for sale for the required length of time and sold the same for cash to the highest and best bidder; and that .the complainant became the purchaser thereof at trustee’s sale and received the trustee’s deed. It is then averred that under section 2772, Code of 1906, lands sold under mortages and deeds of trust must be advertised for three consecutive weeks preceding such sale in a newspaper published in the county; that at the time of said sale there was a newspaper published in Monroe county, but the sale was not made by publication in a newspaper, but written notices were posted in three public places in Monroe county; that the wife of the said H. A. Brazill owned the title to said land, but that she had died intestate, leaving her husband and other minor defendants as her legal heirs; that since the trustee’s sale Gibson, the substituted trustee, had died; “that under the power given in the said deed of trust the assignee has no authority to appoint a trustee in the event the trustee died;” that complain — 368 — ant has had an offer of purchase for said lands, but that the purchaser had contended that the sale should have been made in accordance with the statute, and for that reason refused to buy, and in order to satisfy said purchaser complainant “is willing for the land mentioned in the deed of trust to be resold, she, said Scruggs, agreeing to join in the deed, provided the sale will net her the amount of her debt and interest and cost up to the day of sale.” The prayer of the bill is that the proper process be issued, and “that a trustee be appointed for the purpose of selling the lands under the deed of trust; that he be required to advertise the land for sale, in accordance with the provision- of the law as it exists at this time; that he have all the power as given the original Scruggs trustee in said deed of trust,” and for general- relief. To this bill of complaint H. A. Brazill filed the following answer: “Now comes defendant Henry A. Brazill, and for answer to so much and such parts of said bill of Mrs. J. H. Scruggs against him and his minor children filed in this cause, answering, says: That he admits all the allegations and charges contained in said bill to be true, and he joins in the prayer thereof, and asks that the same be granted.” It appears that process was duly served on the minor children of Laura T. Brazill and H. A. Brazill; that at that time these children were infants aged from seven to fourteen years, and were inmates of the Methodist • Orphans’ Home at Jackson, Miss. The bill of complaint was returnable to the January, 19091, term of the court. It appears that no guardian ad litem was appointed for the minors and no answer filed in their behalf further than the answer filed by the father, the natural guardian. If further appears that some time in 1909 H. A. Brazill, the father, died, and that no action was taken in reference to the pi*esent suit until the year 1917, when Irene Brazill reached her majority and had married Mr. -Northern. She then — 369 — employed counsel to investigate the status of the property here involved, and to this end the solicitors employed attempted to locate the court papers- filed in this cause hut experienced some difficulty and delay in gaining an inspection of thé file. It appears that without access to the court file they prepared for the other defendants an answer and cross-bill and also a petition to have the lost papers substituted as required bylaw in such cases. The file of papers was afterwards located, and counsel for the original complainant, a short period of time prior to the filing of the answer and cross-bill, went before the chancery cleric and paid the costs and had the cleric enter an order dismissing the bill. At the January term, 1918, the defendants and cross-complainants filed exceptions to the action of the clerk in vacation dismissing the bill, while the law firm of Paine & Paine, as amici curiae, excepted to the action of the clerk in vacation in filing the proposed answer and cross-bill, and moved to strike -'he said answer and cross-bill from the files. These motions came up for hearing before the chancellor in term time, and the chancellor, after full hearing, sustained the action of the clerk in dismissing the original bill, and the answer and cross-bill were strilcen from the files. There was an application to the chancellor for an appeal to be granted to this court, and while the chancellor stated that the dismissal of the bill ended the suit, he expressly granted the appeal in this case, stating in his opinion that the point argued “is a very pretty question, a question I would like to see -finally determined.” It appears that Mrs. Laura. T. Brazil! prior to her death executed a deed of conveyance for these lands to her husband, H. A. Brazill, for his life, with remainder over at his death to the four children, at that time minors. A dismissal before the chancery clerk in vacation is not final until the act of the clerk is approved by the chancellor. By statute (section 519, Code of 1906; — 370 — section 276, Hemingway’s Code) all orders and acts of the clerk in vacation or at rules are subject to the approval or disapproval of the court, “and shall not be final until approved by the court.” By section 1000, Code of 1906 (section 720, Hemingway’s Code), each court has full control over all of the proceedings of the clerk had or taken “during the preceding vacation, . and may, for good cause shown reinstate any, cause discontinued during such vacation,” etc. The question, then, as to whether the original bill should have been dismissed was a question properly before the court and timely presented. Without attempting to lay down a hard and fast rule governing the right of a complainant to dismiss an original bill in equity, we are led to the conclusion, by the facts and circumstances of the present suit the learned chancellor erred in dismissing both the original bill and the. answer and cross-bill. The present litigation was initiated by the alleged beneficiary of the deed of trust and the purchaser of the lands at foreclosure sale. For reasons stated in her bill, she offered to relinquish her title acquiring at foreclosure, to treat herself as a mortagee in possession, and to have the court resell the lands at judicial sale, offering to accept the secured indebtedness and to join the court’s trustee or commissioner in executing a deed to any purchaser at judicial sale in the event the lands brought at the resale a sum in excess of the debt secured by the instrument. In other words, the complainant offered to relinquish her claim to the lands and to accept payment for her debt. There is a claim that these lands are worth a sum of money largely in excess of the indebtedness; that appellee has been able to lease the lands for a handsome rental, and that cross-complainants possess valuable and equitable rights in the subject-matter of this litigation. When the original bill was filed offering to do equity, the father, H. A. Brazill, the only adult defendant át that time, properly appeared — 371 — and hy his answer admitted the allegations of the bill, accepted the offer of the complainant, and joined in the prayer of the original bill. He was the only adnlt defendant authorized by law to appear in his own behalf and accept the issue tendered. In accepting the offer he made the prayer of the bill his prayer, and so far as he was concerned the cause was then ready to be set down on bill and answer. He was the father and natural guardian of the infant defendants. It is true that his answer did not purport to be an answer for his children. But the relationship, we think, should not be overlooked. Under prior decisions of our court and under well-recognized procedure in equity, it is the duty of the court to safeguard the interests of minor defendants, to make valuable elections for them, to redeem their property from liens or tax sales, and to see generally, that their interests are fully protected. On this point the announcements of our court in Price v. Crone, 44 Miss. 571, Johns v. Smith, 56 Miss. 727, and Miller v. Palmer, 55 Miss. 323, are pertinent and strong. Many other authorities might be added. With these reflections of our court in mind, it became the duty of the chancellor in this case, whenever the matter was brought to his attention, promply to accept the offer of the original bill and have the lands resold under the directions of the court. The minors had all to gain and nothing to lose by this proceeding. Under the state of the pleadings it was not even necessary for a quardian ad litem to be appointed, but, if the court thought proper, it was the duty of the chancellor to appoint a guardian ad litem. But neither the complainant, it seems, nor any one else, brought the matter to the attention of the chancellor until the application to dismiss the original bill came up for hearing. In the meantime Brazill, the adult defendant, had died, and his interest in the lands thereby terminated. His death did not necessarily abate the suit. He no longer — 372 — had any interest in the lands, and there was no occasion to bring in his administrator or executor. The cause was ready at any time to be set down for final hearing and for a final decree to be rendered. It is intimated by counsel that appellee had a misconception of section 2772, Code of 1906, that this statute was enacted after the execution and delivery of the' present deed of trust and that the complainant in her original bill had a misconception of the law. We do. not believe that the reason offered is here controlling. It is stated in the original bill that the present assignee of the deed of trust had no authority to appoint a substitute trustee, and that the purchaser from appellee was unwilling to accept title. These are important facts tending to show that the foreclosure was invalid, and, if so, the infant defendants had a cause of action and rights that should be inquired into and protected. Under this view any dismissal of the original bill falls within the limitation stated in the opinion of this court in Adams v. Lucedale Commercial C., 113 Miss. 608, 74 So. 435 when the court by Cook, P. J., said: “The only'limitation of the rule is applied to cases wherein the defendant has secured some right by the filing of the bill which would be destroyed by the dismissal of the bill.” Or as stated by Campbell C. J., in State v. Hemingway, 69 Miss. 491, 10 So. 576: “The cause had reached a stage where it was too late to dismiss without the consent of ¡the defendants. . The defendants had acquired rights by what had occurred which entitled them to object successfully, at that stage of the suit, to a dismissal.” As stated by the Lord Chancellor in Cooper v. Lewis, 2 Phill. Chan. 181: “The plaintiff is allowed to dismiss his bill on the assumption that it leaves the defendant in the same position in which he would have stood if the suit had — 373 — not been instituted; it is not so where there has been a proceeding in the cause which has given the defendant a right against the plaintiff.” Mr. Daniell (5th Ed. p. 755) says: “Where, however, there has been any proceeding in the cause which has given the defendant a right against the plaintiff, the plaintiff cannot dismiss his bill as of course; thus, where a general demurrer had been overruled on argument, Lord (Tottenham was of opinion that the plaintiff could not dismiss his bill as of course, the defendant having a right to appeal against the order overruling the demurrer, which right he ought not to be deprived of on an ex parte application.” The authorities referred to in the opinion of this court in State v. Hemingway, supra, are more or less pertinent. The case of Pullman Palace Car Co. v. Central Transportation Co., 171 U. S. 138, 18 Sup. Ct. 808, 43 L. Ed. 108, cited by counsel for appellee, when properly understood, supports the views now expressed. The court, among other things, makes the following observation that is quite applicable to the present suit: “The denial of the motion was made in connection with the application of the Central Company to file a cross-bill in which it would seek to avail itself of the tenders made by the Pullman Company in the original bill. Such an application for leave to' file a cross-bill seeking affirmative relief, while at the same time availing itself of those tenders of relief made by the original complainants, would furnish additional ground for the exercise of the discretion of the court in refusing to grant the application for leave to discontinue. ’ ’ See also, Stevens v. Railroads (C. C.), 4 Fed. 97; 16 Cyc. 460, and cases there listed in the footnotes; McCarren v. Coogan, 50 N. J. Eq. 268, 24 Atl. 1033. It is insisted by counsel for appellee that this was a stale case at the time it was dismissed, and for that reason the dismissal was proper. The circum — 374 — stances however, show that no action was taken by the defendants because of the death of the father, H. A. Brazill, and the minority of the other defendants. The apparent laches of minors should not operate to their prejudice. , - Nothing herein said is intended as an adjudication on the merits of the case. Our view is that the cause should have been retained, the defendants permitted to file their proper pleading, and a final decree ultimately entered in accordance with the rights of all parties. To permit the complainant to stand by and take no action toward the prosecution of this cause, to remain in possession of the premises, and by her bill possibly to lead Mr. Brazill in his lifetime to take no action looking toward the protection of the minor’s interest, would be unfair to the interests of helpless and innocent children. The decree of the learned chancery court dismissing the original bill and striking from the files the answer and cross-bill will be reversed, the original bill, answer, and cross-bill will be- reinstated, and the cause remanded, with leave to either party under the directions of the chancellor to amend generally the pleadings as they may now deem proper. Reversed and remanded.