Gulfport Land & Improvement Co. v. Ansley , 87 Miss. 648 ( 1905 )

Whitfield, C. J.,

delivered the opinion of the court.

■ Mrs. Ansley had advanced to the Gulfport Land and Improvement Company $328 in cash, which had been by that company used for its proper purposes. She applied for repayment, but the company had no money with which to pay her, and, after various delays, as a mode of payment, adopted the following motion: “Moved, that Mary M. Ansley have three hundred lots of the plat of North Gulfport, to be sold by said company to her account, for which she has paid in cash $328.” This motion was unanimously adopted and spread on the minutes. Thereafter, according to the averments of the bill,- three hundred lots were set aside for her, to be sold for her account, and the order to that effect was passed by the board of directors of said company, and pursuant to said order, the said Gulfport Land and Iinprovement Company did, by proper order and in proper form, set apart for Mrs. Ansley three hundred lots in said order, particularly and correctly described.

The whole case turns upon the construction to be given these orders, particularly the order first above set out. The averments of the bill, which are admitted by the demurrer, set out that all these lots were recognized by the said company as belonging to Mrs. Ansley, after the passage of said order,' and that a part of the lots had been sold by the company and the proceeds paid to her, and that no denial of her right had been made until very recently. We think that the order passed by the board, as above referred to, clearly means that the board had set apart these lots for Mrs. Ansley in payment of the $328 advanced by her. The language will hear no other reasonable construction, especially in view of the conduct of the parties, as averred by the-bill, in construction of and under the instrument.

The decree overruling the demurrer is affirmed, and the cause remanded, with direction to the court below to have a trustee appointed to sell the unsold portion of the three hundred lots for the benefit of Mrs. Ansley. So ordered.