Mississippi Sawmill Co. v. Douglas

1. Counties. Board of supervisors. Timber sale. Estoppel. By deed. Grounds. Laws 1898, chapter 41. Laws 1904, chapter 124. A board of supervisors cannot be bound by agreements made by individual members of the board, but can bind itself only by an order entered upon its minutes after a legal session. 2. Estoppel. By deed. Grounds. Laws 1898, chapter 41. Laws 1904, chapter 124. Where a defendant holding a ninety-nine year lease of sixteenth section lands, but not owning the timber thereon, in good faith executed a warranty deed of the timber to complainants’ pre-decesor, and after the defect of title was discovered, without consideration, conveyed her leasehold interest to another defendant, who for their joint account purchased all the merchantable timber on the land from the board of supervisors who were authorized by Laws 1898, chapter 41, and Laws 1904, chapter 124, to sell the merchantable timber. In such case on complainant’s payment of the amount paid to acquire the paramount title, equity will decree that the title obtained by defendants inured to the benefit of complainant, and will decree that defendants convey such title to complainant. 3. Same. 'In such case complainant can sue for breach of warranty.

Appeal from the chancery court of Lawrence county. Hon. R. E. Sheehy, Chancellor. Suit hy the Mississippi Sawmill Company, against R. J. Douglas, and others. From a decree for defendant, complainant appeals. The facts are fully stated in the opinion of the court. Fraud being admitted hy the demurrer, it must be overruled. Under the allegations of this bill, it appeared that Mrs. Buckley, being the warrantor in a timber deed, under which appellant claimed, with intent to defraud appellant, made a colorable conveyance to her brother, under which they acquired a deed from the board of supervisors to the timber with the intent thereby of defeating the prior conveyance of the timber by Mrs. Buckley and under said colorable conveyance, sharing the profits of the scheme, whereby a warrantor would be able to escape the effect of his warranty and yet hold the property. The conveyance to that end is averred to have been fraudulent, and this is admitted hy the demurree. That being true, the demurrer should be overruled. See Hamilton v. Lockhart, 41 Miss. 479; Hcmson v. Field, 41 Miss. 714; Hollins v. Thompson, 13 S. & M. 525; Stovall v. Clayton, 5 S. & M. 20, Mr. Justice Clayton ; Niles v. Anderson, 5 How. (1841), 386; Mitsfords Pleading, 239-298; Hu/rd v. Smith, 5 How. 562, 1841. 4 J. C. Rep. 199; 5 Id. 60. Appellant became vested with the right under ap-pellee’s warranty deed to acquire the timber upon a sixteenth section. Dantsler Lamber Company v. State, 53 So. 1; Cassedy v. Jackson, 45 Miss. 407; Houston v. Association, 80 Miss. 31; Fink v. Henderson, 74 Miss. 8; Southern Plantations Co. v. LLennedy Headmg Co., decided March 10, 1913; Jefferson Davis County v. Lumber Company, 94 Miss. 537; Warren County v. Gam, 80 Miss. 76; Edward v. Sillier, 70 Miss. 807; Kaiser v. Earhart, 64 Miss. 492; Melnnis v. Pichett, 65 Ib.,354; Bram-lett v. Roberts, 68 lb. 325 ; Kaiser v. Earhart, 64 Miss. 492; Melnnis v. Pickett, 65 Miss. 354; see, also, Gassedy v. Jackson, 45 Miss. 407; Houston v. Association, 80 Miss. 31; Wade v. Barlow, 51 So. 662; United States Government of Galloway v. Finley, et al., 12 Pet. 264, 9 L. Ed. 1079; Holloway v. Miller, 84 Miss. 781, 36 So. 531; Dyer v. Britton, 53 Miss. 279; Goopwood v. McCandles, 54 So. 789; Kirkpatrick v. Miller, ,50 Miss. 421; Green v. Irving, 54 Miss. 455. Under appellee’s warranty deed any acquisition of the estate conveyed inured to appellant. Under the admission of the demurrer, Mrs. Buckley has made a color-able conveyance to defeat the warranty which she gave appellant’s predecessors in title and has, under conveyance from the board of supervisors, been vested in truth with title to that which she heretofore conveyed to appellant. Under these circumstances, this title so acquired, at once inured to appellant’s benefit. Edwards v. Hillier, 70 Miss. 807; Kaiser v. Earhart,. 64 Miss. 492; Melnnis v. Pickett, 65 Miss. 354; Bramlett v. Roberts, 68 Miss. 325; Southern Plantation Go. v. Kennedy Heading Company, supra. It may be contended that the Jackson Naval Stores Company v. Tootle, controls here, but we respectfully submit that the question here presented was not there involved and that if the warrantor acquires title from the board of supervisors, that title inured to the warran-tee, even though it be in virtue of conveyance of timber upon sixteenth section land. Appellee acquiring the timber with full notice of contract of appellant to purchase, became bound by that contract and holds the timber as trustee. The bill avers that after the termination of the so-called sixteenth section litigation a contract was made between appellant and the board of supervisors whereunder they agree to sell to appellant in virtue of the prior deed made to it, the timber upon the land in question and that after this contract had been made and with full notice of it, appellee procured the board of supervisors to make him a deed thereof and that he purchased subject to appellant’s rights is manifested by the conveyance itself. Its recitals condemn his rights. Appellant had a valid contract of purchase with the board of supervisors, which contract conferred upon appellant the right to have a conveyance made by said board to it and when, with knowledge of such contract, appellee attempted to acquire that which had already been sold, he necessarily acquired it subject to the rights of appellant. That this contract was made between appellant and the board of supervisors is admitted. That it was valid, we do not think can be successfully disputed, especially by one who has made a warranty deed to that which we were purchasing, to us, and who had breached the warranty by failing to convey that which was called for and thereafter acquiring it in conjunction with another. So that, in the instant case, purchasing with full notice of our rights, we respectfully submit that E. J. Douglas became a trustee for appellant of that which appellant had purchased of the board of supervisors, when said Buckley purchased from said board, well knowing of the rights of appellant, he became thereby a trustee ex maleficio and should convey to appellant. This brief was prepared before the case of Southern Plantation Company v. Kennedy Heading Company was decided, and that decision, we respectfully submit, is on all-fours with the contention herein by appellant, and is necessarily decisive of this controversy in favor of appellant. Wherefore, we respectfully urge upon this court that our rights guaranteed under- the Federel Constitution have been impaired and that we should be protected therein. Wherefore, we respectfully submit that the judgment of the court below should be reversed and the cause remanded with leave to appellees to answer, or if not, and the cause should be affirmed upon a technical point, that appellant be given leave to amend. We submit that this instrument was and is unlawful and a nullity, conveying no timber and no rights. Naval Stores Go. v. Tootle, 96 Miss. 486; Moss Point Lumber Company v. Harrison County, 89 Miss. 448; Warren County v. Gams, 80 Miss. 76. The first point laid in the brief of opposite counsel is, “the bill alleging fraudulent conveyance for the purpose of defeating rights vested, which fraud was admitted by the demurrer, the demurrer must be overruled. On this point let us say that fraud is a question of law; and while all the allegations of fact made in the bill are admitted by the demurrer, yet if those alleged facts do not amount to a fraud on appellant, as a matter of law, then fraud is not admitted by the demurrer. A demurrer admits allegations of fact, but not conclusions of law. Partee v. Kortrecht, 54 Miss. 66; Patterson v. Ingraham, 23 Miss. 87; Spears v. Cheata/m, 44 Miss. 64. As to the second point in counsel's brief, we say that the lessee of sixteenth section land has no commercial interest or right in or to the timber on the land to enjoy or convey from the board of supervisors. This court has not held in any former case, nor even so hinted. But, in any event, the deed from Mrs. Buckley to Meyer cannot be construed as having been made with any intent or purpose to convey any such “right.” Counsel insists that the case of Southern Plantation Company v. Kennedy Heading Company, supra, is on all-fours with their contentions for appellant and is decisive of this controversy in its favor. I may well take issue with them on this assertion and in support of myself invoke the same line of reasoning which counsel employed in their effort, earlier in their able brief, to bar me from any benefit on account of the decision in the case of Naval Stores Go. v. Tootle, supra. Referring to that case, in advance of my brief, counsel quote at length from the opinion of the court (as they say; but, on examination I find that they do not quote a single syllable from the opinion of the court, but merely set out, in toto, the reporter’s statement of the facts of the case),- and they say that “the court did not have before it, at that time any connection with reference to the right upon the part of the lessee or his vendee, under section 4702 to acquire the timber upon the land from the board of supervisors” etc. I may say that the case of Southern Plantation Company v. Kennedy Reading Company, like Naval Stores CompaA%y v. Tootle, was a suit on breach of warranty. The court did not have before it the contention now made in the year 1906, after the law with reference to the sale of sixteenth section timber by boards of supervisors to sell the timber which the deed purported to convey. In that case Mr. Justice Smith, for the court, said: The fact that the deed on its face shows that a grantor’s title is defective is immaterial in so far as the grantee’s right to recover for a breach of warranty is concerned. This is the necessary effect of the holding in Naval Stores Company v. Tootle, 96 Miss. 486, though this point was not expressly passed on by the court. Moreover, it is not true that simply because the deed described the land as sixteenth section land that it thereby disclosed that appellant had not the right to dispose of the timber for commercial purposes, since such a right could have been lawfully acquired by it. Section 4702 of the Code. In the case at bar the deed by Mrs. Buckley disclosed that she had not the right to convey the property described, since, under the law then in effect, she was not permitted to acquire such a right. Counsel lays great stress on Wade v. Barlow, 54 So. 662. We say that was another suit on breach of warranty and had no application to the case at bar. I am unable to see in that decision a single point having any bearing on the case at bar. The same thing is true of the other cases cited by counsel in which the measure of damages on breach of warranty was the chief point treated. In conclusion, referring to the specific grounds laid in the demurrer, let me say: First, there is no equity on the face of the bill; second, the bill is incomplete and insufficient in that various and sundry deeds therein referred to as exhibits to, and parts of, the bill are not annexed or attached to and filed with the bill of complainant. We must here insist, as we insisted in the court below, that the bill of complainant is demurrable on the ground, alone, that some of the most material “exhibits” to the bill are not actually exhibited in the bill. The alleged order of the hoard of supervisors and the alleged deed to it. J. Douglas in pursuance of said order, for instance, are necessary, we submit to be set out in the bill. The alleged contract between appellant and the attorneys for the board of supervisors for the purchase and sale of the timber, if in writing, should be shown. Third, the bill is argumentative in form, and in substance states no ground for complaint or relief. We repeat, appellant has never been vested with any right in the timber in controversy, as the bill itself shows. Hence no allegation of fraud can amount, in law, to any injustce to appellant.