Opinion
No. 35542.
February 28, 1944. Suggestion of Error by appellant overruled, by appellee sustained, and cause remanded June 12, 1944.
1. FRAUDS, STATUTE OF.
Evidence sustained trial court's finding that alleged sale of realty was void under the statute of frauds, and that there was no transfer of legal title.
2. VENDOR AND PURCHASERS.
In purchaser's suit to recover value of improvements placed upon land repossessed by vendor, evidence sustained trial court's finding as to appreciated value of land and that improvements were placed thereon with knowledge and occasional inspection of vendor.
3. COSTS.
Complainant having obtained a substantial recovery in chancery suit was entitled also to costs, though a credit claimed by defendant was allowed and complainant recovered less than the amount sued for (Code 1930, secs. 668, 672).
4. COSTS.
Chancery court, though authorized in its discretion to assess costs against either party or order them divided, generally follows the analogies of the law and awards costs to party who prevails in final results of suit (Code 1930, secs. 668, 672).
5. COSTS.
Chancery court's discretion to assess costs against either party or order them divided is limited by what is equitable under the particular circumstances (Code 1930, secs. 668, 672).
ON SUGGESTION OF ERROR. (In Banc. June 12, 1944.) [18 So.2d 442. No. 35542.]VENDOR AND PURCHASER.
Where purchaser was entitled to compensation for improvements put upon land he was, under the evidence, also entitled to a lien therefor.
APPEAL from the chancery court of Forrest county, HON. LESTER CLARK, Chancellor.
Decree so far as it awarded recovery to plaintiff affirmed, but as respects division of costs decree reversed and decree entered for plaintiff.
On suggestion of error. Appellees' suggestion of error overruled, appellant's suggestion of error sustained, and cause remanded.
J.F. Galloway, of Gulfport, for appellant.
The award of $107 as damages for the taking of the house of appellant, and that subject to a charge of one-half of the court costs, was so grossly insufficient as to shock the equitable conscience.
The court generally follows the analogies of the law in that respect and awards the costs to the party who prevails in the final result of the suit. In fact, this may be said to be the rule, and in order to secure a departure therefrom, the equitable circumstances justifying the departure must be made to appear.
Griffith's Mississippi Chancery Practice, Sec. 629.
See also Cohn Bros. v. Lovell Lumber Co., 135 Miss. 716, 100 So. 188; McPherson v. Davis, 95 Miss. 215, 48 So. 625; Allen v. Levy, 59 Miss. 613; Briggs Co. v. National Wafer Co. (Mass.), 102 N.E. 92; McNeil v. Call, 19 N.H. 403, 51 Am. Dec. 191; Code of 1930, Secs. 668, 672; 14 Am. Jur., Costs, Art. 22; 11 Cyc. 34, Costs; 7 R.C.L., Costs, Art. 5; 88 Am. Dec. 181.
The appellant is entitled to a lien, either upon the house or property, or both, as security for a refund to him of the amount due him under the decree of this honorable court.
King's Heirs et al. v. Thompson, 9 Pet. 202, 9 L.Ed. 102; Carter v. Carter (N.C.), 17 A.L.R. 945; Ford v. Stroud, 150 N.C. 362, 64 S.E. 1; Code of 1942, Secs. 826, 1326.
Cephus A. Anderson and Heidelberg Roberts, all of Hattiesburg, for appellees.
Although the allowance of the costs in equity is a matter of sound judicial discretion to be exercised according to the just circumstances of each particular case, nevertheless, the court generally follows the analogies of the law in that respect and awards the costs to the party who prevails in the final result of the suit. In fact this may be said to be the rule, and in order to secure a departure therefrom the equitable circumstances justifying the departure must be made to appear; although the rule is, further, that the discretion of the chancellor as to costs is not reviewable unless shown to be clearly arbitrary and erroneous. Where the complainant fails to sustain the main issue in the suit and obtains a decree only on some smaller issue he is not to be regarded as the prevailing party, and especially so if the smaller issue thus maintained would probably not have been contested by the defendant, in the absence of the other issue or issues.
Griffith's Mississippi Chancery Practice, Sec. 629, p. 722; Code of 1930, Secs. 668, 672.
This court is familiar with the rule that all liens must be created by law or by contract. Mrs. Baggett did not contract as purchaser for lien against the premises she obtained from Gibbs. There is no existing law for a lien against premises after the property has been placed in the hands of an innocent purchaser for value.
Aberdeen Lumber Co. et al. v. Acme Building Supply Co., 124 Miss. 110, 86 So. 758; Code of 1942, Sec. 356.
Reinecke brought his bill to recover the value of improvements placed upon lots which he contended had been purchased from Gibbs. The trial court was justified by the evidence in finding that the alleged sale was void under the statute of frauds, and that there was no transfer of the legal title. The proof, despite its wide discrepancies, was sufficient to place beyond our revisory powers the finding of the appreciated value of the land repossessed, and that such improvements were placed thereon with the knowledge and occasional inspection of Gibbs, whose office was immediately across the street from the lots. Decree for such amount, less a small credit, was granted appellant. We find no reversible error among the assignments upon the merits.
In the final decree the court ordered the costs divided equally between these parties. We find no justification for such course. It is not material that complainant recovered less than he sued for. The controlling consideration is that by his suit he obtained a substantial recovery. Code 1930, Section 668 provides that, "In all civil actions, the party in whose favor judgment shall be given, . . . shall be entitled to full costs, . . ." Section 672 provides; "The chancery court shall have power to decree that either party shall pay the costs of any suit in equity, or that the same may be divided as may appear equitable."
While a chancery court may in proper cases be guided by its discretion, "nevertheless the court generally follows the analogies of the law in that respect and awards the costs to the party who prevails in the final result of the suit." Griffith, Chancery Practice, Sec. 629. Such discretion is limited by what is under the particular circumstances "equitable". Unjustified by this principle the award becomes arbitrary.
The suit here was for the value of improvements. Complainant recovered what the court found to be their value. There were some credits sought by defendant, and in fact an item of $43 was allowed. But the recovery was upon the basis of the claim sued for.
We are of the opinion that it was error for the learned chancellor to award any costs against the complainant. While the decree, insofar as it awards recovery to complainant, is affirmed, yet for the error in awarding costs we must reverse the cause and enter decree here adjudging costs against appellee.
Reversed and decree here for appellant.
ON SUGGESTION OF ERROR.
The appellant and the appellees both suggest that we erred in the decision hereinbefore rendered by us. The appellees' complaint is that we reversed the decree of the court below insofar as it apportioned the court costs. This disposition by us of the case we think was correct and the appellees' suggestion of error is, therefore, overruled.
The appellant's bill of complaint prayed that he be awarded not only compensation for the improvements put by him on the land described therein, but also that he be awarded a lien on the land to secure the payment of the compensation awarded him. The court below awarded this compensation but did not award the lien prayed for, the decree being silent as to that. The appellant suggests we should have either awarded him such a lien here or remanded the case to the court below for that purpose. On the evidence contained in this record such a lien should have been awarded the appellant and the case will be remanded to the court below for that purpose.
So ordered.