Fairley v. Tucker

ROBERTSON, Justice:

The appellants, Alfred Fairley and his wife, Mollie Fairley, and Sam Fairley and his wife, Missouri Fairley, have appealed from the decree of the Chancery Court of George County, sustaining a plea of res adjudicata to the cross-bill of the appellants. The decree also quieted and confirmed the title of the appellee, Julian C. Tucker, to the SVá of the NEJ4 and the NEi/4 of the SEJ4, of Section 6, Township 2 South, Range 8 West, George County, Mississippi.

The appellants assigned as error the action of the Chancery Court in (1) finding that there was not a fiduciary relationship between Mrs. R. M. McKay and the appellants ; and (2) finding that the appellee, Julian C. Tucker, was an innocent purchaser for value without notice.

This 120 acres of land, at a time when it was assessed to Mrs. R. M. McKay, was sold to the State of Mississippi on September 16, 1957, for delinquent 1956 county and state ad valorem taxes. Title matured in the State of Mississippi, and on November 13, 1959, the State conveyed this 120 acres to Mrs. R. M. McKay by Forfeited Tax Land Patent for a consideration of $360.00 cash, “being the amount required to purchase said land at the rate of $3.00 per acre.”

Mrs. McKay filed suit on November 14, 1961, to quiet and confirm her title to this 120 acres against Flora Fairley Jones, Otho Fairley, Alfred Fairley and Mollie Fairley, his wife, Sam Fairley and Missouri Fairley, his wife. Personal service of process was had on all of these defendants on November 17, 1961, which summons was returnable before the Chancery Court of George County on the third Monday of January, 1962. A well-qualified and capable lawyer in January, 1962, signed out the complete court file. On oral motion, this attorney, by order dated January 17, 1962, was granted 30 days additional time to answer, and the case was continued to the April term of Court. No answer was ever filed on behalf of these defendants, who are the appellants in the present suit before this Court. Finally on July 17, 1962, the’ same chancellor, who heard the case presently on appeal, signed a Decree Pro Con-fesso and a Final Decree quieting, establishing, validating, perfecting and confirming the title to this 120 acres in Mrs. R. M. McKay as against the defendants, Flora Fairley Jones, Otho Fairley, Albert Fairley and his wife, Mollie Fairley, and Sam Fairley and his wife, Missouri Fairley.

The evidence showed that Mrs. R. M. McKay and her heirs paid the county and state ad valorem taxes assessed against this 120 acres for the years 1962 through 1967. On November 13, 1967, the heirs of Mrs. R. M. McKay, deceased, namely, R. C. McKay, Vivian McKay Davidson and Doris McKay Crain, by warranty deed conveyed these lands to Julian C. Tucker, the appellee in this case, and Tucker paid the 1968 and 1969 county and state taxes assessed against this 120 acres.

Appellee Tucker, on February 21, 1969, filed his bill of complaint to confirm and quiet title to this 120 acres against Alfred Fairley and his wife, Mollie Fairley, and Sam Fairley and his wife, Missouri Fairley. Appellants then filed their answer and cross-bill and appellee filed a plea of res adjudicata to the cross-bill of these appellants.

In Morrissey v. Bologna et al., 240 Miss. 284, 123 So.2d 537 (1960), this Court said:

“The essentials to constitute res judi-cata were set forth in Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So.2d 476, 478, as follows: ‘They are (1) identity in the thing sued for; (2) identity in the cause of action; (3) identity of persons and parties to the action; and (4) identity of quality in the persons for or against whom the claim is made.’ ” 240 Miss. at 295, 123 So.2d at 542.

All of these essentials are present in this case except that Julian C. Tucker is the successor in title to Mrs. R. M. McKay. This is a distinction without a difference.

The chancellor was correct in sustaining the plea of res adjudicata after complainant Tucker had put on his case, including the introduction into evidence of the complete court file in Cause No. 3049, being the suit to quiet and confirm title filed on November 14, 1961, and concluded on July 17, 1962.

The judgment of the Chancery Court is, therefore, affirmed.

Affirmed.

GILLESPIE, C. J., and JONES, BRADY and INZER, JJ., concur.