Smith v. Wells , 46 Miss. 64 ( 1871 )

Simball, J. :

The complainant, Isaac Smith, brought an injunction suit against the defendant, Angelina Wells, enjoining a proceeding of forcible entry and detainer, instituted by her to recover the possession of a tract of land. The injunction was dismissed, and thereupon Mrs. Wells sued Smith and his sureties on the injunction bond.

The premises, by means of the injunction, were withheld from Mrs. Wells for a year. It was in evidence that their use for the year was worth $500, which was the amount of damages awarded by the jury. It is assigned for error that the circuit court excluded from the jury a transcript of the proceedings and order of the probate court, authorizing Smith, adminstrator de bonis non of Reuben Wells, deceased, to rent the premises for the year 1870. Counsel for the plaintiffs in error do not claim that these proceedings of the probate court, if allowed in evidence, would or ought to bar a recovery, but they ought to be considered and have influence in the mitigation of damages. We must accept the decree of the chancellor, dissolving the injunction, as conclusive that the complainant had not made out a case against Mrs. Wells’ right to proceed to judgment in her suit of forcible entry and detainer. When relieved of the injunction she recovered the premises. Now what is the covenant of the obligors? That “if the said injunction shall be dissolved, and the said Isaac Smith shall pay and satisfy all costs and damages as shall result from the wrongful suing out of the injunction, * * * etc., the obligation to be void.” The loss of the use and rental of the premises for a year was the result of suing out the writ; or at all events, the jury have certified that damages to the extent of the value of one year’s rent has ensued. But for the interference of the complainant, Mrs. Wells or her tenants would have occupied the premises, or she would have recovered possession, perhaps, in time to have made them available. Edwards v. Edwards, 31 Ill. 474, was a suit upon a “bond restraining a party from taking possession of a farm.” It was held that the plaintiff was not restricted to the mere value of the use of the farm for the time, but ought to be compensated for the loss of the crops for the season. In Fleming & Baldwin v. Bailey, 44 Miss. 135, depreciation in the value of the cotton, from the date of the seizure until a dissolution of the attachment, was declared to be the measure of damages in a suit upon the bond. The party injured by the injunction is entitled to compensation for all loss and injury, naturally and fairly referable to the wrongful act of the obligor.

The transcript offered in evidence was the petition of Smith, administrator of Beuben P. Wells, deceased, to rent out the land, and the license of the court for him so to do for the year 1870. The proceeding is founded on the act of 22d of November, 1865, p. 140, § 2, which empowers the probate court to authorize the administrator to lease the farm for a term not exceeding three years, and certain notices being given, and the court being satisfied “that it would be beneficial to all interested.” The ground upon which the injunction was asked was, that the administrator had leased the premises for the year 1870, and that Mrs. Wells was attempting to remove the tenants by her suit before the justice of the peace. The rejected evidence went to the same point, and ended to - show authority from the probate court to demise for the year. If there be any efficacy in the evidence it would be to show a right to lease, and, therefore, the order of dissolution was wrong. Smith, the administrator, by Ms bill, asserted that Mrs. Wells ougM not to be permitted to remove the tenants of Smith, because he had of right demised to them. If these proceedings of the probate court would enable him to lease, he ought to have preferred the matter in Ms bill, or introduced it by amendment. To have admitted it on this trial, would be to open afresh the conflicting rights of the administrator and Mrs. Wells to the possession of the land. As we have already said, the decree of the chancellor is “conclusive” until reversed, that the injunction was wrongfully obtained, if so, the obligors are liable for all damages legitimately, naturally and fairly traceable to the wrongful act. It would have been competent for the obligors to prove that Mrs. Wells realized the rent of the land for 1870, in whole or part; but they could not be allowed to prove that Smith, as admiMstrator, had a right to lease for the year, and thus again put in controversy what was or might have been litigated in the chancery suit.

The statute of 1865, referred to, must have a sensible construction, treating it as a part of the law, defining the powers and duties of an administrator, and the rights of heirs and widows. It should not be so interpreted, as to authorize an administrator to take into possession and lease out the exempt homestead, for that descends to the widow and children, and constitutes no part of the estate for creditors. Parker v. Dean, 45 Miss. Nor should it have such reading as will interfere with the dower rights of the widow.

We are unable to see what different result the rejected evidence, if admitted to the jury, would have had, or what benefit the defendants could have derived from it.

Wherefore we affirm the judgment.