Bostick v. Hays , 102 Miss. 698 ( 1912 )

Reed, J.,

delivered the opinion of the court.

The same parties, engaged in the same litigation, have been before this court on a former appeal in the case of A. V. Hays et al. v. Mrs. F. J. Bostick, 96 Miss. 794, 51 South. 462. In the opinion of the court, delivered hy Mayes, J., the general facts in the case are stated, and reference is now made to that opinion. The court held that the appellants in that appeal, Messrs. Hays, Field, and Moore, did not participate in the fraud practiced upon Mrs. Bostick by Priester, her covendee. The decree of the chancellor, appealed from, whereby he relieved Mrs. Bostick, the appellee, from responsibility, granting a partial rescission of the sale, was reversed. In remanding the case, this court decided that the property, being certain lots in the city of Hattiesburg, should be decreed to be sold to satisfy the vendor’s lien, directing that the one-third interest owned by Priester should be first sold, and the proceeds applied on the indebtedness evidenced by his note in favor of Messrs. Hays, Field, and Moore, the vendors, and, if there should be more than enough to satisfy his note, that the remainder of the proceeds from the sale of his interest should be credited on the notes of Mrs. Bostick, and that her two-thirds interest should he sold to pay any balance remaining owing on her notes, and that, if there was not sufficient realized from the sale of the property to pay the indebtedness owing by Mrs. Bostick, the vendors should have a decree over for such balance.

The Chancellor permitted Mrs. Bostick, the appellant in the present appeal, to file an amended answer and cross-bill; in fact, she was. permitted to file a second amended answer and cross-bill. The appellees in this appeal answered the cross-bill. From the record it is* shown that the chancellor was liberal in allowing Mrs. Bostick to file amendments to tlie pleadings and to introduce testimony. Slie liad every opportunity to bring in. new and additional proof to sustain her contentions. The chancellor entered a decree, following the directions-of this court relative to the sale of the property. It appears from his decision that he considered the case-upon the state of pleadings and proof introduced to be the same as that passed upon in the former appeal. A review of the record convinces us that he was correct in this. If the pleadings and proof upon the hearing of a case, after it is remanded by this court, do not present a different case from that which has been passed on by this court, the decree should be in accordance with the decision of this court, and conform to the directions of the mandate. Wailes v. Johnson, 25 Miss. 421; Canning Co. v. Ott, 88 Miss. 771, 41 South. 378; Haines v. Haines, 98 Miss. 830, 54 South. 433.

Affirmed.