Howell v. McLeod , 127 Miss. 1 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

Thomas Howell, deceased/ executed a deed to timber on certain lands to the appellee, R. D. McLeod, at and for the sum of five dollars per thousand feet. .The contract or deed in question contained the following provision:

“Said payments for said timber shall be made on the first day of each month hereafter, and in case all timber removed'from said land be not paid for on the first day of each month hereafter as aforesaid, then and in that case that part of this contract with reference to the sale and conveyance of said timber shall become void and of no effect and the title to all of said timber not cut and removed and still standing and being on said land shall revert to the grantor herein.”

Thomas Howell died in February, 1920, when two payments had been made to him under this contract, one being on the 2d of the month. Thereafter payments were made to his administrator (some being actually made after the 1st of the month, but dated on the 1st and accepted by the administrator), one of the appellants, until this bill was filed, attacking the said conveyance on the ground that Thomas Howell, deceased, was mentally incompetent to execute a deed, and also that he executed it, if competent at all, under the undue influence of his grandson, Frank HoAvell.

It is also alleged that the payments provided in the contract were not promptly made on the 1st day of each month, and that for that reason the title had reverted to the grant- or. It is further alleged that some of the timber cut was improperly scaled, and that some of the logs were not scaled at all, and that some of them were sunk into the stream on which the mill was situated, and had never been paid for at all. The bill prayed for the cancellation of the deed and for a forfeiture under tbe terms of tbe contract and for noncompliance with its terms. Tbe answer denied tbe material allegations of the bill and a motion was filed on the 31st day of August, 1920, to dissolve tbe injunction, and notice was given that tbe motion would be beard on tbe 3d day of September. Tbe motion, however, was continued on agreement of counsel, and it was never set down until tbe cause came on for bearing at tbe regular term of court on tbe merits. There was a conflict of testimony as to the issues made by tbe bill.

The chancellor found that while some of tbe logs bad never been measured and paid for, and while perhaps some of them bad not been measured, that there was not sufficient evidence-for him to grant relief, as there was a total failure on the part of tbe complainant to prove tbe value of any of the logs that were sunk or improperly scaled, or any sufficient data upon which a judgment could be founded. He also held that tbe proof was insufficient to sustain damages for the suing out of an injunction, and allowed attorney’s fee of two hundred and fifty dollars for the wrongful suing out of the injunction.

The proof of damages for the wrongful suing out of the injunction showed that the defendant had a contract for certain lumber and cross-ties at fixed prices, and also showed that he could make a profit and the amount of such profit but it failed to show how much of the contract had been filled and also failed to show how much of the timber remained uncut at the time of the suing out of the injunction, and how much would have been cut within the time covered had not the injunction been sued out. The defendant showed, also, that he employed two men, or had two men employed at the time of the suing out of the injunction whose services he retained at one hundred dollars per month each; but the proof also shows that these men did certain work, and earned something during this period of time, but does not show how much they earned or what money they made in other work for the complainants and other persons.

We think that the chancellor was justified in holding the proof was insufficient on the part of the complainants to make out the allegations of the bill, and that the proof of damages for the wrongful suing out of the injunction was also insufficient to sustain the contention of the ap-pellee and cross-appellant upon that issue, except as to the attorney’s fees. As to this item, which was allowed by the chancellor, we find that there ivas no motion heard prior to the trial on the merits, and that the trial on the merits involved issues other than injunctive relief. In other words, the issues presented by the bill do not present a case where injunction is the sole relief sought, but in this case the injunction was an incident to the relief prayed, which was a cancellation of the deed or the declaring of a forfeiture in the case above set forth.

In the recent case of Mims v. Swindle, 124 Miss. 686, 87 So. 151, this court decided that an attorney’s fee for deciding a case on its merits, when an injunction is a mere incident thereto, is not allowable against a complainant. For this reason the judgment will be reversed as- to the allowance of attorney’s fees, but affirmed in all other respects on direct appeal, and will also be affirmed on the cross-appeal; the costs to be equally divided between the appellants and the appellee.

Reversed in part and affirmed in part on direct appeal; affirmed on cross-appeal.