Nichols v. Gaddis & McLaurin, Inc.

McGehee, C. J.

This is an interlocutory appeal from an order .of June 21, 1955, allowing the appellee, Gaddis & McLaurin, Inc., to further amend its bill of complaint in this cause, and from an order of the same date allowing the said appellee to amend its answer to the cross bill of the appellants, subsequent to the reversal and remand of this cause on November 15, 1954, as reported in 222 Miss. 207, 75 So. 2d 625. Motions of the appellants to strike the motions to amend were overruled. It is stated in the brief of counsel for the appellants that this interlocutory appeal was granted to settle the controlling principles of law involved, but the two orders allowing the amendments to the bill of complaint and to the answer of the appellee to the cross bill, as proposed in Exhibit “A” to the motions to amend, granted the interlocutory appeal “upon the filing of the statutory bond therefor”, but these orders providing for such appeal do not specify on what ground the same is allowed. Moreover, the appellants undertake to demonstrate in their brief that every legal point in the case, after the allowance of the amendments, was settled by the court on the former appeal. There is no motion before us to dismiss the appeal on that ground, and we do not dismiss the same of our own motion for the reasons hereinafter stated, and we are passing on the issue of whether or not the amendments were properly allowed.

In 1928 J. N. Nichols and wife executed a note and a deed of trust on the 100 acres of land in controversy to Mrs. Sallie T. Herring, in which she alone had authority to appoint a substitute trustee. This note and deed of trust were later acquired by Gaddis & McLaurin, a partnership, which was thereafter incorporated. Gaddis & McLaurin attempted to appoint a substitute trustee and we held on the former appeal that such substitution was invalid. The land was foreclosed by the substitute trustee on March 7, 1932, and Gaddis & McLaurin became the purchaser of the land. The appellant, James W. Nichols, a son of the mortgagor J. N. Nichols, deceased, rented and cultivated the land thereafter for a period of 19 years as the tenant of the purchaser at the foreclosure sale. In his lease rental agreement this land was referred to as the land formerly owned by J. N. Nichols. The original lease rental agreement was for a period of ten years with an option to purchase the land for $2,000.00 and apply the agreed rent thereon.

We refer to the remainder of the factual situation set forth in the original opinion in 222 Miss. 207, 75 So. 2d 625, supra, merely for the purpose of a better understanding of the opinion in the instant case, and to save repetition of the enumeration of the heirs at law of J. N. Nichols, the mortgagor, the dates of the deaths of some of them and as to when the appellant James W. Nichols obtained quitclaim deeds from some of such heirs.

In the former opinion, supra, we expressly overruled the case of Peeples v. Boykin, 132 Miss. 359, 96 So. 177, and in which.opinion the court stated: “Appellee urges that the recording of the trustee’s foreclosure deed to Gaddis and McLaurin in 1932 is sufficient within itself as a legal ouster and disseisin of the co-tenants, and that the recording of the deed alone is constructive notice to them of appellee’s adverse possession, and is sufficient to start the running of the ten-year adverse possession statute.”

There was no dispute on the former appeal that the appellee continuously cultivated the land through its tenant James W. Nichols, from the time it was leased to him until the time of the commencement of this suit more than 20 years thereafter. The former opinion expressly 'states that “appellee’s contention is based primarily upon the authority of Peeples v. Boykin, 132 Miss. 359, 96 So. 177.”

On the former trial the burden of proof was on the appellee, who at first filed a bill for an injunction to prevent James W. Nichols from interfering with the ingress and egress of the appellee to and from the land and which was later amended as a bill of complaint against the heirs of J. N. Nichols, deceased, to quiet the title asserted by the appellee to the land, to prove the recordation of the deed of trust and trustee’s deed, purporting to convey the full title, followed by at least 10 years possession of the land under such color of title. The complainant met that burden of proof on the former trial prior to the first appeal to this Court under the rule of law announced by Peeples v. Boykin, supra, decided on May 21, 1923. It is true that that decision had been criticised in subsequent opinions, but the fact remains that it had weathered the storm for more than 31 years and until the time it was overruled by this court of its motion.

It was not incumbent on the complainant in order to make out its case to prove anything more than recordation of color of title followed by 10 years of continuous possession, claiming the land as sole owner. But when we overruled Peeples v. Boykin, we then turned to a consideration of the case as to whether or not the appellants on that appeal had had actual notice of the appellee’s possession for more than 10 years. The issue in the trial court was primarily whether or not Peeples v. Boykin when applied to the recordation of color of title followed hy 10 years possession had ripened a title in the appellee. It is true that the appellee, as complainant in the trial court, undertook to prove actual notice to the appellants, and was unable to do so except as to a few of the several appellants. In our opinion the effect of overruling Peeples v. Boykin was that recordation under color of title, which had proposed to convey the entire interest, followed by 10 years continuous possession, was insufficient alone to establish title in the appellee as to the claims of a number of the heirs. The case was reversed and remanded “for further proceedings in the chancery court in accordance with this opinion”. The judgment of the court was entered accordingly. The mandate followed the judgment.

In the absence of Peeples v. Boykin the complainant would have been required to prove actual notice to the defendants, and we think that since the appellee tried the case primarily in reliance upon the established law of this state for nearly 32 years, it is entitled on remand to fully develop whatever all the facts may show as to whether or not the defendants had actual notice, or the equivalent thereof.

In the case of Middleton v. Davis, 105 Miss. 152, 62 So. 164, it was stated, among other things, that: “The remanding of a case to the trial court is for the purpose of having it tried de novo, and such a court has the same power to allow amendments to the pleadings, when a cause is remanded with directions to enter a judgment or decree in accordance with the opinion of this Court, that it has when a cause is remanded without any such direction. If on the trial in the court below the pleading's and proof present the same case that was before this court on the appeal, the judgment or decree of the court should be in accordance with the directions given it by this court; but, should the pleadings and proof then present a different case, the judgment or decree should he made to conform thereto’ — citing Wailes v. Cooper, 25 Miss. 421; Hanserd v. Gray, 54 Miss. 75; Taylor v. Wright, 54 Miss. 722; Canning Co. v. Ott, 88 Miss. 771, 41 So. 378.* * * It is contended that no new facts were stated in the pleadings, and that they were all contained in the original pleadings. * * * But we do know that they are in the new pleadings in a very different order and for a different purpose. Some of the facts may appear, incidentally, in an answer or exhibit in the original pleadings; but now they are arranged and pleaded affirmatively for relief by appellant. This court in its former opinion put a construction on the contract different from that contended by either of the parties. There is now a new phase of the case. * * * It is our belief that new defenses and contentions were presented to the court by appellant’s amend.ed answer and cross-bill, and new and distinct issues offered.”

In Griffith’s Mississippi Chancery Practice, Section 700, the author of this valuable work, commented with approval on the Middleton case.

To avoid further prolonging this opinion, we do not review the language or subject matter of the proposed amendments. We deem it sufficient to say that the result of the allowance of the amendments will be to permit the appellee to develop such facts as it may have to meet a burden which has been greatly enlarged by the overruling of Peeples v. Boykin. The amendments will permit the appellee an opportunity to meet a burden of showing actual notice, or the equivalent thereof, to the several defendants — a burden which he was not required to bear under the settled rule established by Peeples v. Boykin nearly 32 years ago. We pretermit any discussion at this time as to whether the former opinion is res judicata as to anything the amendments propose to show. We can better determine after a trial on the amended pleadings, and a decree thereon, whether or not the pleadings and proof present the same case that was before this Court on the former appeal.

There is some alleged confusion as to whether or not the four votes of the Judges who were unwilling to reverse the case unless the overruling of Peeples v. Boykin was to be prospective only, when added to the vote of another Judge who had voted to affirm the case on its original submission, had the effect of an affirmance. This other Judge was not in favor of making the overruling of Peeples v. Boykin prospective only and for that reason could not vote to sustain the suggestion of error on the particular ground on which the votes of the other four was based. Nevertheless, there were only four votes to sustain the suggestion of error, and the same was overruled. The writer of this opinion, speaking for himself alone, frankly concedes that he is influenced to some extent, but not altogether, on the instant appeal by the unusual situation presented in this case.

Many pages could be written in justification of the right of the appellee to fully develop its case under the changed jurisprudence brought about by the overruling of Peeples v. Boykin, and to meet the enlarged burden of proof placed on the appellee by the overruling of that case as compared with the burden of proof that the appellee was required to meet on the former trial on the question of actual notice to the appellants as to the possession and claim of right so long continued following the foreclosure sale, and during all of which period of time none of the appellants were showing any interest or making any claim in the land, but we deem it sufficient to say that in our opinion the allowance by the trial court of the amendments complained of on this appeal was amply justified, under the principles herein-before announced, and as a matter of equity and good conscience.

The action of the chancery court in allowing the amendments should, therefore, be affirmed.

Affirmed.

Roberds, Hall, Lee, Holmes and Gillespie, JJ., concur.