Norris v. Burnett , 108 Miss. 407 ( 1914 )

Smith, J. C.,

delivered the opinion.of the court.

This bill, which was filed in the court below on the 6th day of February, 1912, alleges that on the 3d day of April, 1866, John W. Burnett executed and delivered to George W. Norris his promissory note for the sum of twelve thousand eight hundred' and thirty dollars, and in order to secure the payment thereof executed and delivered to Norris a mortgage on certain land, describing it, situated in the first district of Hinds county, Mississippi, which mortgage was duly recorded in the office of the chancery clerk of that county; that this promissory note was never paid; that on the 27th day of August, 1866, Burnett conveyed the greater part of the lands described in this deed of trust to W. D. Terry for the use and benefit of his wife, Caroline T. Burnett; that on the 11th day of November, 1871, George W. Norris died, leaving as his only heirs at law his son, Louis G. Norris, and his widow, Sallie B. Norris, who subsequently intermarried with Dr. E. M. Grant; that on the 5th day of June, 1873, Burnett was appointed administrator of the estate of George W. Norris, deceased, by the chancery court of the first district of Hinds county, and gave bond as such administrator in the sum of five thousand dollars, on which his wife, Caroline T. Burnett, and his daughter, Sallie B. Norris, were sureties; that Burnett died in 1874, leaving as his heirs his widow, Carrie T. Burnett, and the following children: Sallie B. Norris, who afterward married Dr. E. M. Grant, J. T. Burnett, Ruth Burnett, Norris Burnett, Golda Burnett, Edna Burnett, Callie C. Burnett, and G. M. Burnett; that Burnett’s estate was never administered upon; that Burnett never filed a final account as administrator of the estate of George W. Norris, and since his death that no one has made a final settlement for him, and therefore the administration of the said George W. Norris’ estate is still pending in the chancery court of the first district of Hinds county; that Carrie T. Burnett died on the 20th day of January, 1885, seised and possessed of certain described lands, and leaving as her heirs the children hereinbefore referred to as heirs of her husband, J. W. Burnett; that Mrs. Sallie B. Grant, who was formerly Sallie B. Norris, died in February, 1900, seised and possessed of certain described lands, and leaving as her heirs her husband, E. M. Grant, and her children, Louis G. Norris, Mrs. Sarah Grant Willing, C. Cecille Pleasant, and Walter Norton Grant; that E. M. Grant has since died, leaving all of his property to Mrs. Tillie Grant, a wife by a subsequent marriage; that John W. Burnett left no property out of which any amount due by him as administrator of the estate of George W. Norris, deceased, can be made, and that neither Caroline T. Burnett nor Sallie B. Grant left sufficient personal property with which to pay what they will owe as sureties on his bond; that certain named persons now claim to own parts of the land described in the mortgage from J. W. Burnett to George W. Norris, through mesne conveyances from Carrie T. Burnett; that certain other named persons now claim to be the owners of, or to hold mortgages upon, certain lands owned by Mrs. Sarah B. Grant at her death; that some of the children, naming them, of John W. and Carrie T. Burnett are now dead, leaving certain named heirs; that on the 11th day of November, 1910, Louis G. Norris died, leaving complainants, who are his wife and children, as his only heirs at law. All of the heirs of John W. Burnett,' Carrie T. Burnett, and Sarah B. Grant, together with the other named persons who now own, or hold mortgages upon, land formerly owned by them, were made parties defendant to the bill, the prayer of which was:

.“(1) That a commissioner be appointed to compute and state the amount due on the indebtedness named in the mortgage which John W. Burnett executed to Geo. W. Norris, on or about the 3d day of April, A. D. 1866, with legal interest down to date, one-half to go to complainants.

“ (2) That said commissioner compute and state, also, the amount of money which the said J. W. Burnett owes to the complainants in this cause on a final settlement of his accounts as the administrator of the estate of Geo. W. Norris, deceased, one-half to go to complainants.

“ (3) That your honor will order, adjudge, and decree that'the following land, described in said mortgage which was executed on the 3d day of April, 1866, by John W. Burnett to Geo. W. Norris, be sold as the law directs to pay the amount due under the same as found by the commissioner in this cause, to wit (describing it).”

An inventory and one annual account filed by John W. Burnett on July 23, 1874, as administrator of the estate of George W. Norris, were filed as exhibits to this bill, but in neither of them did he charge himself with the note alleged in the bill to be due by him to Norris. A demurrer was interposed to this bill, one of the grounds of which is the laches on the part of Louis G. Norris, through whom appellants claim. This demurrer was sustained, and an appeal granted to settle the principles of the case.

The facts of this case bring it squarely within the rule announced in Comans v. Tapley, 101 Miss. 203, 57 So. 567, Ann. Cas. 1914B, 307. The long and unexplained delay in instituting this suit, coupled with the present situation of the parties thereto, render it inequitable for the court to grant the relief prayed for. All of the parties to the transactions here complained of are now dead, and it will be practically impossible for the court to determine whether or not the note alleged to have been executed by Burnett to George "W. Norris was in fact ever paid. Louis G. Norris’ long inaction strongly indicates that he did not claim that his grandfather was accountable to him for the note alleged to have been executed to his father. For aught the court can now ascertain, that matter may have been amicably adjusted long prior to Louis’ death.

In Cooper v. Cooper, 61 Miss. 694, this court, after holding that until an executor has been “discharged from any further accounting, the beneficiaries have the right to consider the trust an active one, and mere delay' on the part of the trustee in settling with the court, and through it with the beneficiaries, and obtaining his discharge, cannot be considered such a breach of the trust as to set the statute in motion in his favor,” use the following language:

“Nevertheless, we are not to be understood as saying that there may not be cases in which, after an actual suspension of the trust, there has been such long acquiescence or delay on the part of the cestui que trust as to require the court to deny him relief upon the ground of laches.”

And the rule is, as stated by the author of the note to Salmon v. Wynn, 15 Ann. Cas. 483, that:

“Whenever an action is brought in equity to compel a personal representative to render an account of the funds of the estate, the court will, irrespective of any statute of limitations, take into consideration the lapse of time in determining whether the complainant is entitled to equitable relief. And the court will refuse to order an accounting if the complainant has been guilty of such laches as to indicate bad faith or to render it impossible or extremely difficult for the court to do justice between the parties.”

Affirmed and remanded.