Rives v. McNeil , 127 Miss. 839 ( 1921 )

. Ethridge, X,

delivered the opinion of the court.

Appellant filed a bill against appellee, charging that in a certain suit styled H. W. Rives v. F. D. Burrage, complainant had litigated with Burrage his rights to certain property involved in this suit and obtained a decree adjudicating the title to be in the complainant Rives, and had Burrage’s title to said lands in said suit canceled; that pending said suit Burrage conveyed to McNeil a portion of the property involved in that suit, and that McNeil had collected certain rents from said .lands, and had obtained a deed thereto from Burrage which constituted a cloud on the title of complainant; that the amount of rents collected by McNeil was six hundred and seventy-five dollars, and that McNeil had paid certain taxes on said land, which complainant was willing should be deducted from the six hundred and seventy-five dollars rent collected by McNeil; and prayed for, first, a cancellation of McNeil’s deed from Burrage, and, second, for a personal judgment against McNeil. A copy of the decree in the case of Rives v. Burrage was made an exhibit to the bill, and shows that personal judgment was rendered against Rives for said rent, and reserved jurisdiction for the purpose of an accounting as to rents in that suit. The deed to McNeil was also made an exhibit, and shows on its face that the deed was taken for fees due McNeil and Loeb as attorneys in said suit, together with one hundred dollars recited as cash consideration. The deed was absolute in form, and purported to convey the fee-simple title. McNeil, the defendant, filed a plea in which he averred that he took said deed merely as a mortgage, and that he had collected rents as agent of Burrage, and had accounted to Burrage therefor. He also set up the suit of Rives v. Burrage with the judgment therein, and that this operated as an estoppel in the present suit, that complainant in said suit elected to pursue his remedy against Burrage to final judgment, and that that judgment embraced the same subject-matter as the present suit, and makes the opinion of the chancellor in the suit of Rives v. Burrage, with the judgment therein, an exhibit to his plea, which opinion shows that McNeil had collected six hundred and twenty-nine dollars and forty-five cents rents on the property involved, and that other tenants of other property had paid certain rents, and. held Bnrrage liable for such rents so collected. The plea was accompanied by an answer, in which McNeil disclaims any ownership of the property involved since the rendition of the decree in the Burrage case, and .avers that said deed was only taken as security for fees in said case, and that McNeil was the agent of Burrage in collecting rents, and had accounted to him for such rents; that McNeil had ad' vanced to Burrage at the time the deed was executed one hundred dollars, and that McNeil had used all the money received by him in payment of taxes and in preserving said property and estate; that he held said property in trust for the benefit of Burrage, and offered in said answer to quitclaim to complainant his right, title, and interest in said property. The answer was sworn to. The plea was set down for hearing on its sufficiency in law, and was adjudged sufficient, and complainant’s bill dismissed. After the dismissal of the bill complainant offered to amend his bill by adding:

“Complainant further shows and charges that he recovered a decree made by this court on the-- day of-, 1921, against F. D. Burrage for rent of the same property named herein for the sum of six hundred and twenty-nine dollars for the same rents sued for in this case, but that said F. D. Burrage is wholly insolvent, and not one cent of said decree has been or ever can be collected out of him, and said charge against said Burrage is still wholly unsatisfied and unpaid, and the only means by which it can be collected is in this suit against M. S. McNeil for the time named herein, and on information derived from Bur-rage under oath as a witness complainant charges that the defendant herein collected all said rents, amounting to six hundred and twenty-nine dollars after paying taxes, and appropriated the same to his OAvn use” — which amendment the court disallowed.

It is contended here that the court below erred in two respects: First, in refusing to cancel McNeil’s title as a cloud; and second, in refusing to render a personal decree against McNeil for the rents stated. Appellee insists that his offer to quitclaim to complainant any title he may have received from Burrage being made in the answer under oath would forever estop McNeil from claiming said property, and the court is not in error in refusing to cancel under such circumstances. As to the second proposition appellee insists that complainant elected in the former suit to proceed against Burrage with knowledge of all the facts, and is limited to his recovery against Burrage, and is es-topped from proceeding against McNeil. We think the court below should have entered a decree cenceling McNeil's claim or deed, although McNeil offered to quitclaim his title in his answer; the-rights of McNeil under his deed from Burrage having been acquired during the pendency of the suit between Rives and Burrage, and McNeil being of counsel in said suit and knowing the rights • of Rives would be concluded by said decree. Bank of Tupelo v. Motley, 90 So. 438, and other authorities therein cited. Notwithstanding this is true, the deed, being of record and purporting to convey a fee-simple title, would be subject to cancellation, and the court below should have canceled it. Drysdale v. Biloxi Canning Co., 67 Miss. 534, 7 So. 541.

We think, however, the chancellor was correct in refusing to render a personal decree against McNeil for the rents for which complainant had obtained judgment against Burrage. Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L. R. A. (N. S.) 785, 17 Ann. Cas. 611. The authorities upon the question here involved were reviewed by' this court elaborately in said opinion, and we think it is conclusive on the facts in this case. It follows therefore that the judgment of the court below will be reversed in part and affirmed in part, and the costs be divided equally between appellant and appellee, and judgment rendered here.

Reversed and rendered.