Canal Bank v. Hudson

delivered the opinion of the court.

The litigation involved in this appeal is a continuation of that which was before .this court in Bank v. Partee, 99 U. S. 325 . The plaintiffs in the suit were appellants then and are appellants now. The original bill was filed April 1st, 1873, in the Circuit Court of the United States for the Southern District of Mississippi, by the appellants, as creditors of Sarah D. Partee and William B. Partee, her husband, to secure to them the benefit of a deed of trust executed by the debtors to one Bowman, covering lands in Yazoo County, Mississippi, the object of the deed being to provide for the payment of debts, among which were those due to the appellants. The Circuit Court excluded the appellants from the benefit of the deed of trust, because of their failure tc notify in writing within a time limited by the deed their acceptance of its terms, and that court also held that the title to certain of the land covered by the deed had failed in the trustee because of a para

Stewart and James D. Partee, a son of the debtor's, had become the purchasers of the land sold under the Stewart judgment. In May, 1879, after the filing in the Circuit Court of the mandate from this court, the appellants filed a supplemental bill. One acre of the land bought by Stewart and a part of the land bought by James D. Partee are involved in that bill and in the present appeal. The original deed of trust was made November 19th, 1866. The deed of the sheriff to James D. Partee, on the sale under the Stewart judgment, was made January 4th, 1869, the judgment having been recovered June 6th, 1866. The land so conveyed to James D. Partee was in-quantity equal to 5i sections, and. was all in township 9 of range 4 west in Yazoo County, embracing land in 7 different sections. The land constituted what is known in this controversy as 2 plantations called “ No Mistake,” and “ Tyrone.” In February, 1870, James D. Partee and his wife conveyed these plantations to one Barksdale, in trust to secure an indebtedness of $41,500 to the firm of Nelson, Lamphier & Co. Under this deed of trust the plantations were sold and conveyed by the trustee to one Nelson, a member of that firm, in June, 1S72. On April 15th, 1873, Nelson conveyed the plantations to one Short, in trust to secure an indebtedness of $35,000, embracing-18 promissory notes, to said firm. Two of these notes came to be owned by Joseph P. Benson and two by Charles C. Ewing, as.administrator of S. S. Ewing, and they, with holders of others of the notes, brought a suit in equity, in August, 1876, in the Chancery Court of Yazoo County to foreclose said trust deed. A decree of sale Avas made in January, 1877, and the said Benson and EAving

The plantations were originally the property of one James ■ Dick, who was the uncle of Mrs. Sarah D. Partee. They were known together by the name of “ No Mistake.” By that name they were devised by Dick, by will, to Mrs. Partee. The will was proved in March, 1849. Mrs. Partee’s parents ■ were Christopher Todd and Sarah Todd. The will contained these provisions:

“ To my niece, Sarah D. Todd,- wife of William B. Partee, of New Orleans, and to her heirs, I give and bequeath : 1st. My plantation, commonly called ‘ No Mistake ’ plantation, near Satartia, Yazoo County, State of Mississippi, with all the negroes, horses, mules, cattle, buildings, and farming utensils that may be found on said estate at the time of my death and belonging to me. 2d. I give and bequeath to the said Sarah D. Todd and to her heirs about rix thousand,acres of land, situated in this State, and entered by E. Lawrence and Brashear in my name. This bequest is made to Sarah D. Todd, wife of William B. Partee, upon the following conditions under the p'enalty, in case oh non-compliance, of loss of the above property : The first of said conditions is that the said Sarah D. Todd, wife of the said William B. Partee, shall within the next ensuing month after my death pay to Miss Elizabeth Calhoun, of Maury County, State of Tennessee, and to Nathaniel Calhoun, and to Christopher Calhoun, his brother, children of Margaret Todd, wife of Charles Calhoun, and residing in Maury County, Tennessee, the sum to each of twelve thousand dollars ; that is to say, to MLs Elizabeth Calhoun the sum of twelve thousand dollars, to Nathaniel Calhoun the sum of twelve thousand dollars, and to Christopher Calhoun twelve thousand dollars, and in the case of the death of either or any of them without issue, then the sum or sums coming to said deceased parties or their heirs to be given to the survivor or survivors in equal proportions. The second of ‘said conditions is that the said Sarah D. Todd and her heirs shall pay to Christopher Todd and to Sarah, his wife, my sister, one thousand dollars per annum during the life of either, payable as they or the survivor may-require it.”

“ And my will is as follows : That all the legacies which I have given in money and not charged upon any particular fund is not demandable from any person whomsoever for the term of two years after my decease. . . . And should any legatee endeavor by action of any kind or nature, before any court in any State, to break, injure or destroy any of my dispositions, the bequest or legacy to such person or persons is annulled or rescinded by me. The legacies of $12,000 each to Elizabeth Calhoun, Nathaniel Calhoun and Christopher Calhoun may be paid by Sarah D. Todd, wife of William B. Partee, in the following manner, viz. : To Elizabeth Calhoun on the day of her marriage, and to Nathaniel and Christopher when they become of age, upon condition that the said Sarah D. Todd pays to the said legatees annually interest at seven per cent, upon their respective legacies, after she comes in possession of ‘No Mistake’ plantation.” .

Mrs. Todd having died in 1853, and Christopher Todd having been paid his annuity up to. January 1st, 1861, he filed' a bill in chancery, in November, 1867, in the Chancery Court of Yazoo County, against William B. Partee and his wife, claiming that such annuity was a charge on the land so devised to Mrs. Partee, and praying for a sale of the land to pay the arrears due on the annuity. Christopher Todd having died during the pendency of the suit, it was revived in the name of Edward Drenning, his special administrator, and the court, on June 8th, 1868, made a decree that there was due to Todd at his death, as an annuitant under said will, $7,680.04, that that sum was a lien on said ‘.‘No Mistake” plantation, against all liens created thereon since the death of Dick, and that said land be sold to pay that sum. It was sold, by the same description as in said< conveyance to James D. Partee, to said Hudson and Ewing, on April 15th, 1878, they being then the owners of the decree in the suit, and they received a deed of that date therefor. In 1871 James D. Partee, as owner of the land, had paid a part of the Drenning decree. In February, 1877, Drenning was paid the balance by Robert G-. Hudson and assigned the decree

Hudson and Benson, and Charles O. Ewing, individually and as administrator of S. S. Ewing, and Drenning, as executor of Stewart and as administrator of Todd, were made parties to the supplemental bill in this suit. That bill attacks the validity of the Drenning decree and claims an account of the rents and-profits of the land. The parties defendant having put in answers, to which there were replications, the court ordered that the controversy as to Hudson and Ewing and Drenning proceed separately.

On the 29th of November,-1880, the court made a decree setting aside the- deeds under which Hudson, Benson, and Ewing obtained title, and decreeing that the deed of April 15th, 1878, to Hudson and Ewing, on the sale under the Drenning decree, was subject to the right of redemption of the appellants as junior encumbrancers, under the original trust deed of November 19th, 1866;'. that Hudson and Ewing were entitled to be reimbursed what they had paid to Drenning in purchasing his decree, with' interest, that" amount being $9,391.23, paid February 5th, 1877, and being a paramount hen on the lands in controversy; that Hudson and Ewing were entitled to be reimbursed what they had paid for taxes, and the value of all improvements of a permanent character put on the lands by them, and repairs, but were responsible for a reasonable sum annually for the use and occupation of the lands up to January 1st, 1881; that for the balance due them on an accounting they should have a lien on the lands superior to that of the appellants; that the balance, if any, due by them should be deducted from the amount due- them on account of the Todd legacy; that the appellants were entitled to foreclose their trust deed and sell the land subject to such prior claim of Hudson and Ewing; that an' account be taken by commissioners as to the amount due to Hudson and Ewing on the Todd legacy decree, and for taxes paid, and as to the fair rental value of the lands during the time they had occupied

On the 24th of November, 1881; the commissioners made their report. It is set forth in the record, but the account annexed to it and the testimony taken by the commissioners are not set forth. . The result was, that they found due to the appellants by the appellees $8,865.99, and to the appellees by the appellants $37,697.92, and .that the balance due to the appellees Avas $28,831.93. The appellants excepted to the account and the report by 19 exceptions. Thereafter . the exceptions Avere heard by the court, and it filed an opinion, which states that the account, is not in accordance with the directions*of the court or the equities between the parties. It then proceeds: “ I have examined and re-examined the account filed by the defendants, and have maturely considered the testimony oh both sides, arid have arrived at conclusions which I am satisfied meet the equities on both sides as nearly as cah reasonably be reached.” It then'states conclusions of fact on which the rent for 1877 is fixed at $1,000. It then sets forth certain improvements Avhich the defendants made in 1878, and states that they charge there

Thereupon, on the 18th of February, 1882, the court made a final decree. That decree states that the case was heard on the exceptions to the' report of the commissioners-; that the court, being of opinion that said report does not conform to the decree of November 29th, 1880, orders “that said report and the account therewith presented be set aside,” and, “ after argument of counsel, proceeding to the decision of the several questions of law and fact involved in the cause,” adjudges that there is “ due to the defendants Hudson and Ewing, under the judgment and findings of the.court on said exceptions, on account of the Todd legacy decree,” $12,365.77, and on account of the taxes paid on and by said defendants on the lands, $1,567.44, and that, “ after ascertaining and crediting the amount due for reasonable rents ” of the lands, “ there is a balance due to the said defendants, on account of improvements, repairs and betterments,” of $6,309.60, making a total sum due them of $20,242.83, with interest from that date. The decree then finds the amounts due to the several plaintiffs on their notes, being an aggregate of $47,136.06, with interest from that date, and adjudges that the plaintiffs are entitled to redeem the lands, and that on their paying within sixty days, to the defendants, the $20,242.83, with interest, they should be substituted to their rights as senior encumbrancers on the lands, and might enforce payment thereof by a sale of the lands; that, if the plaintiffs should not pay that sum, then the lien of the defendants and that of -the plaintiffs should be enforced, and the lands should be sold, and out of the.proceeds the amount so due to the-defendants should first be paid. From this decree the plaintiffs have appealed.

The. only questions presented by this appeal are as to the

It is contended by the appellants that, under the will of Dick, the annuity legacy to Todd and his wife was not a charge on the plantation devised to Mrs. Partee, but was only a personal claim against her, to be enforced by proper proceedings for the forfeiture of the land, on a breach of the conditions specified in the will. The argument made is, that the penalty imposed by the will, of loss of the property in case of non-eompliance with the conditions, shows that the testator did not intend to create a lien., But we are of opinion, that, taking the whole will together, a lien was created. The reference to the prior legacies given in money and not charged on any particular, fund, of which there are many, shows .that there must have been some prior legacies in money which, were charged on a particular fund, and the fact that no other legacies in money but those which Mrs. Partee is to pay, as conditions' on which the plantation is given to her, are given payable by any person as conditions on which property is given to such person, and that there are no other legacies in money which can answer the description of legacies in money “ charged ” oh a “ particular fund,” all combine to furnisü ‘ persuasive evidence that the legacies which Mrs. Partee was to pay were a lien on the plantation. The intention of the testator seems tó be clear, and the plantation is not inappropriately called a “fund.” Nor can the lien or charge be limited to the 6,000 acres of land.. The conditions attach to the entire bequest, consisting of two items. They apply to the legacies to the three Calhoun children and to the annuity legacy to Christopher Todd and his wife; and the subsequent provision as to the times when Mrs. Partee may pay the several legacies to the Calhoun children, on condition that she pays them annually interest on such legacies aftor she comes in possession of the plantation, shows that that plantation is given to her on condition that she pays those legacies, and, if so, such annuity legacy must be in thé same category. Birdsall v. Hewlett, 1 Paige, 32; Harris v. Fly, 7 id. 421 ; Loder v. Hatfield, 71 N. Y. 92 , 97.

“No judgment or decree rendered in any court held within this State shall be a lien on the property of the defendant therein for a longer period than seven years from, the rendition thereof.”

It is plain, we think, that this statute applied only to a judgment or decree rendered in personam against a defendant, for the recovery of so much money, and which became a general lien on the property of the defendant in the judgment or decree by virtue of another statutory provision, such as article 261 of chapter 61 of the same Code, page 524. Article 15 of chapter 57 has no reference to such a decree as the Drenning decree here, one establishing and enforcing a specific lien on devised property, created by a will, the decree being made in a suit in chancery brought for that especial purpose. The decree adjudges that the amount found to be due was made by the will of Dick a lien and charge on the plantation devised to Mrs. Partee, and decrees that the plantation stand charged with the payment of that amount, against all liens created thereon by the defendants in the suit since the death of Dick. The decree adjudges, it is true, that the defendants pay to the plaintiff the sum so found due, within thirty days, and that, in default thereof, enough of the plantation be sold to pay such sum. But no execution is awarded against the defendants as on a personal judgment, nor is there any provision for a decree for a deficiency. It was held in Mississippi, in Cobb v. Duke, 36 Miss. 60 , in 1858, that a court of equity had no jurisdiction to make a decree in personam, for a deficiency on a bill to enforce a vendor’s lien on land, or on a bill to foreclose a mortgage. The same principle applies to the lien in question here. The decree did not create a lien, but merely gave effect to the lien and charge which the will created. In a decree in ■personam for the recovery of money, the statute provided for a lien on

The bill filed by Todd to enforce his lien made defendants only 'William B. Partee and his wife. Bowman, the trustee in the appellants’ trust deed, was not made a party. But, the will of Dick was proved and recorded in Yazoo County, and the appellants, claiming under Mrs. Partee, by a 'subsequent■ deed of trust, took the land subject to the lien and charge created by the will.' The appellants aver, in their original bill, that á letter was written by Bowman, the trustee, two days after the deed of trust was made, to the appellants’ attorneys in New Orleans, in a copy of which letter annexed to the bill it is stated, as a result’ of an examination of the records of' Yazoo. County, with the view of ascertaining what liens or encumbrances there were on the property of Mrs. Partee, that, under the will of Dick, from whom the property was derived, there was an annuity, of $1,000 to be paid to one Todd during Ms lifetime. The only effect of the omission to make Bowman a party to the suit, was to leave the title of a purchaser under the decree in the suit subject to the right of the appellants, as junior, encumbrancers, to contest the validity of the prior lien, and to redeem the property. This right has been accorded to them.

The appellants also claim,' that there should be an abatement of a portion of the amount paid by the appellees to Drenning, to the extent of Mrs. Partee’s distributive share in that amount, as a part of the estate of Christopher Todd, her father. In February, 1877, when Drenning received payment of the balance due on the decree, he was the legal owner of the decree. He had not then been made a party to this suit. Mrs. Partee had no claim in respect of any money due on the decree, other than such claim as she had to her proper share of the entire estate of her father, in due course of its administration. When the decree was purchased by the appellees, no claim of Mrs. Partee was attached to or impressed upon it, or the

The only material questions remaining are those connected with the allowances for improvements. In a decree made by the court below, in this suit, on November 20th, 1879, on a hearing on exceptions to the answer of Hudson and Ewing, it was adjudged that they, claiming title to a part of the property in controversy under a trust deed executed by Nelson, a defendant in the original bill herein, on the 15th of April, 1873, “ prior to any process, publication, or appearance in this cause by said Nelson, are not estopped as to said property by the lis pendens, or the proceedings heretofore had in the cause, from answering the original bill,” but “ are proper parties defendant to the said original bill, as having a substantial intérest in the original controversy.” The title of Nelson, as a support to any title of the appellees to the land, was. destroyéd by the decision as to the Stewart judgment. The original bill herein was filed April 1st, 1873. Nelson was made a defendant to it. Process of subpoena was issued against him July 8th, 3873, but was not served. On November 10th, 1873, on an affidavit that Nelson resided in Tennessee, an order of publication against him was made. He appeared on the 30th of January, 1874, andansw,ered on the 11th of February, 1874. Meantime, on the 15th of April, 1873, Nelson made to Short the deed of trust before mentioned, on a sale under' which the appellees purchased the land, in February, 1877. The supplemental bill was filed May 27th, 1879, after the appellees had. acquired all their titles. They were made parties to it and were served with process, Hudson

It is manifest that the claim for allowances for improvements, set up in the answer, is intended to be based on the provisions of the statute of Mississippi, Revised Code of 1871', chap. 17, article 4, § 1557," which enacts that “it shall be lawful, in all cases, for the defendant in ejectment, or in an action for mesne profits, to plead the value of all permanent, valuable and not

The' Supreme Court of Mississippi interpreted this statute, in 1876, in Cole v. Johnson, 53 Miss. 94 , in a suit in chancery brought by a person who had bought lands at a void probate 'sale, and paid for them and put valuable improvements on them, to restrain an ejectment suit against him, and to have an account taken of the rents and profits, and of the improvements and purchase money, the latter having been applied to pay the debts of the estate, and to set them off against each other, and charge on the land .the balance due the plaintiff. Such relief 'Was granted. It Avas urged for the defendants that, as the defécts in the probate proceedings were patent on the record, by inspection, the plaintiff Avas not a purchaser in good faith, and did not pay his money in good faith. The court held that it Avas sufficient if the money was “ genuinely paid,” without any knoAvledge or suspicion of fraud, the item “ good faith ” being used in contradistinction to “ bad faith; ” and that the expressions as to “ good faith ” in § 1557 did not import that the claim to compensation for improvements could not be maintained if the purchaser could, by any possible research, have discovered the imralidity of his title, and meant nothing more than an honest belief on the part of the purchaser that he was the true OAvner. The-court adopted the rule stated in Green v. Biddle, 8 Wheat. 1 , 79, that a “ bona fidei possessor ” of land is one “ who not only supposes himself to be

" The Circuit Court, it is clear, found, in this case, that the appellees acquired their alleged title in good faith, under the rule thus established. The evidence is not in the record, and must be regarded as sufficient to support such finding. Tt is shown that the appellees purchased under a tax title in January, 1876, went into possession January 1st, 1877, purchased the Drenning decree February 5th, 1877, purchased at the sale under the deed of trust from Nelson to Short February 19th, 1877, and purchased at the sale under the Drenning decree April 15th, 1878. We do not think that the notice, whatever it was, given at the sale of April 15th, 1878, was sufficient to charge the appellees with malafides, and that there was nothing amounting to the “ notice ” specified in the statute, until the process under the supplemental bill was served on the appellees.

The only questionable period left open is that which • re

The present case has an analogy to that of a purchaser at a foreclosure sale, who makes valuable improvements in the belief that he has acquired an absolute title. He is entitled to be paid for them if the premises are redeemed. 2 Jones on Mort

All the questions raised by the counsel for the appellants have been examined and considered, but we have not thought it necessary to comment on others than those above reviewed. Upon the. whole case we are of opinion that

The decree of the Circuit Court must be affirmed.