White v. Price , 119 Miss. 302 ( 1919 )

Cook, P. J.,

delivered the opinion of the court.

Appellant filed her original bill of complaint in the chancery court of Hinds county, and a demurrer was filed by appellee, which was sustained by the court. Whereupon appellant, by leave of court, filed an amended bill of complaint, appellee again demurred, and this demurrer 'was also sustained.

The original bill states the deaths of the grantors, and alleges that M. Green resigned as trustee in 1906, and that the Mississippi Bank & Trust Company was illegally appointed trustee by the chancery court of Hinds county; that immediately thereafter the Mississippi Bank & Trust Company filed its petition, or rather three of the single daughters filed their petition, to the chancery court, praying that the trustee be authorized and empowered to sell a portion of the trust estate, and that such sale be subject to the confirmation of the court. An itemized account of what .petitioners claimed the estate was indebted to them was attached to their petition, which, as will be seen, was made an exhibit to their petition. The petition above mentioned was an ex parte petition, in which none of the other beneficiaries were joined nor given notice. It will be noted that the decree - granting the sale was rendered on the same day the petition was filed; that the petition for confirmation and the decree confirming' the sale to appellee were filed and granted on the same day; that this petition was also an ex parte petition, with the Mississippi Bank & Trust Company the petitioner, instead of the three single daughters who were petitioners for the sale, and that none of the beneficiaries were joined in this petition. Appellant alleges that she had no notice of any kind of these proceedings.

The Mississippi Bank & Trust Company, as trustee, delivered to appellee Dr. It. L. Price a deed to a lot sixty feet by two hundred feet for the consideration of one thousand, six hundred and fifty dollars. Now a year after this sale it is alleged, and the exhibits show, that appellee Dr. Price desired to buy more property, and the same three parties sent a written request to the Mississippi Bank & Trust Company, as trustee, stating to it that the said appellee was desirous of buying an additional tract of land, whereupon the Mississippi Bank & Trust Company, as trustee, filed with the court below a petition, praying for an order granting it the right to make the sale. This was also an ex parte petition, joining none of the beneficiaries, and appellant alleges that she had no notice of the proceeding. It will be seen that the petition for the sale, the order granting the sale, the petition for confirmation of the sale, the order confirming the sale, and the deed to appellee from the Mississippi Bank & Trust Company were filed, granted, and delivered on the same day.

Appellant alleges in her bill that all of the proceedings on the part of the Mississippi Bank & Trust Company and appellees were contrary to the terms of the instrument creating the trust; that,the proceedings did not follow the conditions and terms providing for the sale of the property of the estate; that same was done for the purpose of defrauding appellant; that the chancery court was without any jurisdiction of the subject-matter, was without jurisdiction, of the persons of the parties, and that for this reason could not exercise any authority itself, or grant any authority to the trustee to divest the title of the said property from appellant; that the proceedings on the part of the chancery court and appellees were without notice to appellant, complainant below, and other allegations.

The learned chancellor, as indicated by his opinion filed in the record, tentatively admitted that the proceedings in his court might have been without authority of law. Nevertheless he was of Opinion that the bill of complaint showed that the trustee proceeded strictly in accordance with the terms of the trust deed, and in making the sale with this assumed predicate the demurrer was sustained.

It will be observed that the appellant, by her bill of complaint, admitted that the trustee was fully authorized to sell the real estate for the purposes set out in the trust deed, but she alleged, as a matter of fact, that the sale was not made for that purpose. So the gravaman of the bill is the alleged combination and conspiracy of the trustee and appellees to defraud the appellant.

It will be noted that appellee did not answer the bill of complaint; he demurred, accompanying same with an affidavit denying the alleged combination and conspiracy to defraud complainant.

“Begardless of the intention of the pleader to address the answer to those averments of the bill charged or attempting to charge fraud, the answer in fact is to the whole bill, denying as it does . . . every material averment. This being so, the answer overrules the demurrers.” Norwich Union Fire Ins. Co. v. Standard Drug Co., 117 Miss. 434, 78 So. 354.

We are of opinion that the decrees of the chancery court sustaining the demurrer should be reversed and the cause remanded, with leave to the appellees to answer the bill of complaint within thirty days after the mandate is filed in the court below.

Reversed and remanded.