Opinion
No. 35022.
September 28, 1942.
1. PARTITION.
In suit by original owner's heirs to vacate a partition decree and sale thereunder, averments in bill alleging that at time of partition proceedings complainants were in the United States Army and were never served with process, had executed no waiver of process, had not otherwise entered appearance therein, had received no part of alleged proceeds of sale, and did not until recently have knowledge of partition proceedings were sufficient against general demurrers.
2. PLEADINGS.
A pleading is construed most strongly against the pleader, and a pleader may not rely on inferences to be drawn in his favor from the facts stated by him unless the inference is a "necessary inference," that is, one which is inescapable or unavoidable from the standpoint of reason, and an inference is not an "inescapable" or "unavoidable inference" if another and different inference may be reasonably drawn from the facts as stated.
3. PLEADING.
When the existence of a particular fact is necessary to be shown in a pleading, else the party relying thereon will have no cause of action, he cannot have that fact imported into his pleading through the device of inference unless it is an inescapable inference.
4. PLEADING.
When a particular fact is necessary to be shown in order to establish an affirmative defense, that fact cannot be imported into the defensive pleading by inference unless the inference is necessary, inescapable and unavoidable, when reasonably considered with the facts stated.
5. EQUITY.
When a demurrer to a bill raises affirmative defenses, the defensive facts upon which the demurrer is based must appear from the bill either as facts expressly stated therein or from necessary, or reasonably inescapable or unavoidable inferences which may be drawn from the bill in favor of demurrant.
6. EQUITY. Limitation of actions.
Where bill in suit to vacate a partition decree and sale thereunder was silent as to possession of land, and it was reasonable to infer from facts alleged that purchaser at sale did not go into possession, defendants were not entitled to inference that purchaser went into possession in support of special demurrers raising affirmative defenses of the ten-year statute of limitations, the two-year statute on bills of review, and laches (Code 1930, secs. 2285, 2286, 2322).
7. PARTITION.
In suit by original owner's heirs to vacate a partition decree and sale thereunder, it was not necessary to statement of complainants' case that possession of land be mentioned, since until some person had taken possession in hostility to complainants, possession of their interest in land was in them by constructive operation of law, unless divested as a result of partition proceedings.
8. PARTITION.
A deceased landowner's heirs could let land lie unoccupied and idle for 50 years or more without thereby being affected by limitations or "laches" with respect to suit to vacate a partition decree and sale thereunder (Code 1930, secs. 2285, 2286).
9. EVIDENCE.
The Supreme Court cannot take common knowledge of values of particular lands and mineral rights therein.
10. PARTITION.
In suit to vacate a partition decree and sale thereunder, burden was upon defendants to show necessary facts in support of their affirmative defense of bona fide purchase for value.
11. APPEAL AND ERROR.
An appellate court will not attempt to settle difficult questions of law and right on a demurrer to a bill, and if demurrer raises merely a doubtful question, or if the case is such that justice will be promoted by a determination of the ultimate right only on answer and proof, the court should exercise a fair judicial discretion to that end, although it may be that in technical points, the grounds of demurrer are sustainable in strict law.
12. EQUITY.
Courts should not be called on to eke out the facts in support of an affirmative defense by the dubious and laborious process of inference, where such facts, if they exist, can be readily set up in the answer.
APPEAL from the chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Howie, Howie McGowan and W.B. Fontaine, all of Jackson, for appellants.
The main allegations of the bill are:
(1) That when the partition suit was filed in 1917, Carl Taylor and William Taylor were minors.
(2) That they joined the army and left the jurisdiction of the court before the suit was ever filed.
(3) That neither of them was ever served with any kind of process.
(4) The defendant Carl Taylor specifically states under oath that he never signed any waiver of process and entry of appearance and that the same was a fraud perpetrated by one of the defendants; he states that he was in France at the time this judgment was entered and this fraudulent waiver was filed, and he specifically charges one of the defendants with procuring the same to be filed.
(5) These complainants state under oath that they never received one penny from the sale of this land.
(6) The said sale was void because the homestead property of the widow could not be partited, and sworn allegations in the bill allege that it was partited, and she never did consent to its division.
(7) That none of the provisions of the Soldiers' Sailors' Act were complied with, and hence the judgment was abinitio void, and the provision of the act for reopening cases in ninety days has no application.
(8) No final record of the case was made as provided by law.
(9) That the appointment of S.S. Griffin as guardian for William Taylor and the taking of the judgment on the same day was a fraudulent invasion of the rights of the minor, William Taylor.
The flat charge was made that no process whatsoever was ever served on William Taylor. It is too well known to this court to require repetition that service must be served upon a minor and also a copy given to his guardian or next friend. This is too well known to the courts to require citation. If this minor was in the military service and out of the jurisdiction of the court he could not have been served.
Carl Taylor was in France, and swears he did not send any waiver of process, and this allegation alone would be good against the demurrer of the appellees. The allegations of fraud are sufficiently specific. These allegations take the bill out of the statute of limitations.
Jones v. Rogers, 85 Miss. 802, 38 So. 742; Weir v. Jones, 84 Miss. 602, 36 So. 533; Nestor v. Davis, 100 Miss. 199, 56 So. 347.
By the test laid down in these cases the bill clearly was not demurrable on account of the fact that there was no specific allegation of fraud. This is sufficient to take the bill without the ten year statute of limitations, as provided in Section 2286, Mississippi Code of 1930.
The appellees, the Union Producing Company and Falvey and Sample, are not and could not be innocent purchasers. The Union Producing Company took these leases as a part of a block which was at that time denominated as a wild cat drilling block. The price they paid for the same was no more than a nominal price. Exhibit "D" to the bill of complaint shows no value was paid for the lease, but merely a nominal price as part of the drilling block assembled. Ten thousand dollars was certainly no value for this lease.
The doctrine of laches cannot apply because there has been no change of position that would work injury to anyone.
Vanlandingham et al. v. Meridian Creek Drainage District et al., 191 Miss. 345, 2 So.2d 591; Griffith's Mississippi Chancery Practice, Sec. 33.
Vinson, Elkins, Weems Francis and Thomas Fletcher, all of Houston, Tex., Ray, Spivey Cain, of Canton, Fielding L. Wright, of Rolling Fork, and Brunini Brunini, of Vicksburg, for appellee, Union Producing Company.
Assuming fraud on the part of the lessor, Twiner, the allegations of fact contained in the original bill negative the conclusion of the pleader that such was concealed fraud.
Fleming et al. v. Grafton, 54 Miss. 79; Peeples v. Boykin, 132 Miss. 359, 96 So. 177; Thornton et al. v. City of Natchez, 88 Miss. 1, 41 So. 498; Mississippi Code of 1930, Sec. 2286; Griffith's Mississippi Chancery Practice, Secs. 176, 288.
The Soldiers' and Sailors' Civil Relief Act has no application since this suit admittedly was not filed within ninety days after termination of service and further that such act expressly reserves those rights acquired by bona fide purchasers for value.
Soldiers' and Sailors' Civil Relief Act; Hemingway's Mississippi Code 1921, Ch. 89A; 40 Stat. 440, Ch. 20; U.S.C.A., Title 50, Sec. 101 to 165; 13 Mississippi Law Journal 478; Combs v. Combs (Ga.), 104 S.E. 656.
The original bill of complaint shows on its face that defendant, Union Producing Company, is a bona fide purchaser for value and hence such defense may be raised by special demurrer.
Baldwin v. Anderson, 103 Miss. 462, 60 So. 578; Burks v. Moody, 141 Miss. 370, 106 So. 528; Jones v. Grimes, 115 Miss. 874, 76 So. 735; Jordan v. Bobbitt, 91 Miss. 1, 45 So. 311; Hiller Co. v. Jones, 66 Miss. 636, 6 So. 465; Parker v. Foy, 43 Miss. 260; Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384; Virden v. Dwyer, 78 Miss. 763, 30 So. 45; Mississippi Code of 1930, Sec. 374; Griffith's Mississippi Chancery Practice, Sec. 299; Hemingway's Code, 1921, Secs. 39, 674; 5 Tiffany on Real Property (3 Ed.), Secs. 1285, 1308.
The original bill of complaint, on its face, shows that complainants' demand is stale and that they are guilty of laches, which, in equity, bars maintenance of their suit. Hence, demurrer was properly sustained.
Comans v. Tapley, 101 Miss. 203, 57 So. 567; Buckner v. Calcote, 28 Miss. 432; Bellamy v. Shelton, 26 Miss. 250; State v. Woodruff, 170 Miss. 744, 150 So. 760, 765-6; Vanlandingham v. Meridian Creek Drainage District, 191 Miss. 345, 2 So.2d 591; Norris v. Burnett, 108 Miss. 407, 66 So. 332; Aetna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7, 28, writ of certiorari denied, 263 U.S. 673, 44 S.Ct. 5, 68 L.Ed. 500, 263 U.S. 678, 44 S.Ct. 132, 68 L.Ed. 502; Bonner v. Bynum, 72 Miss. 442, 18 So. 82; Thornton v. Natchez, 88 Miss. 1, 41 So. 498, 501; Cross v. Hedrick, 66 Miss. 61, 7 So. 496; Gum Carbo Co. v. New Orleans German Gazette, 90 Miss. 177, 43 So. 82; Murphy v. Johnston (Austin Court of Civil Appeals) (writ of error dismissed by the Supreme Court of Texas), 54 S.W.2d 159; Twin Lick Oil Co. v. Marbury, 91 U.S. 592, 23 L.Ed. 328; Minchew v. Morris (Dallas Court of Civil Appeals), 241 S.W. 215; Reese v. Carey Bros. Oil Co. (writ of error dismissed by the Supreme Court of Texas), 286 S.W. 307; Holman v. Gulf Refining Co. (5 C.C.A., 1935), 76 F.2d 94; Heard v. Houston Gulf Gas Co. (5 C.C.A., 1935), 78 F.2d 189, certiorari denied, 56 S.Ct. 178, 296 U.S. 643, 80 L.Ed. 457; Gosnell v. Lloyd, 215 Colo. 244, 10 P.2d 45; Gill v. Colton (4 C.C.A., 1926), 12 F.2d 531; Hodgson v. Federal Oil Development Co., 285 F. 546; Davidson v. Grady (5 C.C.A., 1939), 105 F.2d 405, rehearing denied, 106 F.2d 272, and cases therein cited; Scott v. Empire Land Co. (D.C. Fla., 1925), 5 F.2d 873; Memphis C.R. Co. v. Neighbors, 51 Miss. 412; DeCordova v. Smith, 9 Tex. 129; 21 C.J. 225, et seq.; Griffith's Mississippi Chancery Practice, pp. 36, 37, pars. 32, 33.
Henry Barbour, of Yazoo City, for appellees, J.M. Twiner.
All rights of appellants are barred by Sections 2285 and 2286 of the Mississippi Code of 1930.
Jones v. Rogers, 85 Miss. 802, 38 So. 742; Thames v. Mangum, 87 Miss. 575, 40 So. 327; Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; Newman v. J.J. White Lumber Co., 162 Miss. 581, 139 So. 838.
Appellants' bill is a collateral attack on decrees of the chancery court, and such attack and a direct attack by bill of review are both barred by Section 2322 of the Mississippi Code of 1930.
Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204, 103 So. 5; Whitley v. Towle, 163 Miss. 418, 141 So. 571.
J.M. Twiner was a bona fide purchaser for value under chancery court decrees in which all jurisdictional facts are conclusively presumed to have existed, and not subject to this collateral attack.
Cotton v. Harlan, supra; Federal Reserve Bank of St. Louis v. Wall, supra; Whitley v. Towle, supra.
Appellants are barred by laches. Bridgeforth Love, of Yazoo City, for appellees, Clark Sample and Mrs. Aliece M. Falvey.
The chancellor, in sustaining the special demurrer of these appellees and a similar demurrer on part of each of the other appellees, decreed the only common sense disposition of this case. It is inconceivable that the appellants could complain of concealed fraud over a period of twenty years when they confess themselves each to be sui juris during that entire period of time and the disposition of these lands under the partition decree was contained in the open book of the records of land deeds and the minutes of the chancery court of Yazoo County, Mississippi, during the whole of this period. This is particularly true when not a single error which they now claim existed in the partition proceedings was jurisdictional, save, of course, the want of process upon them which they assert but which the record amply repudiates. Even had there in fact been no process upon appellants, the record discloses its existence and also the answer of each of them; and these appellees, having paid, as their deed exhibited by appellants shows, a valuable consideration in dependence upon these records, must certainly have the benefit of the favored position of bona fide purchasers for value, particularly as their purchase was made more than ten years from the date of the final decree.
Argued orally by W.B. Fontaine and M.M. McGowan, for appellants, and by E.L. Brunini, for appellees.
Appellants, who will be referred to as the complainants, are brothers, and inherited from their father an undivided one-ninth interest each in the eighty acres of land involved in this suit. Their father died in 1915, and in 1917 one of their sisters instituted a partition suit, as a result of which the land was ordered sold and was sold for partition, at which sale the defendant, J.M. Twiner, became the purchaser, his deed from the court commissioner being dated August 13, 1918. All the other defendants hold under Twiner.
On June 6, 1941, complainants filed their bill to vacate the partition decree and the sale thereunder, and to cancel as clouds upon their title everything that was done in the partition proceeding and every subsequent deed growing out of it, averring inter alia that at the time of the partition proceedings they were in the United States Army, and were never served with any process in the partition suit, had executed no waiver of process, had not otherwise entered appearance therein, had received no part of the alleged proceeds of the sale, and, in fact, that until lately they had no knowledge that any such suit had been instituted.
Several other grounds for setting aside and vacating the decree of partition and the sale thereunder were set forth in the bill, some of which, we think, are not well taken; but we do not deem it of value at the present juncture to pursue the lengthy bill and its various grounds, inasmuch as the averments mentioned in the foregoing paragraph were sufficient to require the overruling of the general demurrers, which the court did.
But the defendants separately interposed special demurrers raising the affirmative defenses of the ten-year statute of limitations, secs. 2285 and 2286, Code 1930; the two-year statute on bills of review, sec. 2322, Code 1930; the defense of laches under general equity principles; and the purchasers from Twiner incorporated also in their special demurrers the affirmative defense of bona fide purchasers for value. None of the facts as facts upon which the special demurrers could dependably rest were averred in the bill, but in order to obtain the facts upon which the special demurrers were based, these facts had to be worked out of the bill by way of inference. The special demurrers were sutained, and the complainants having declined to amend, their bill was dismissed. We think the special demurrers should have been overruled.
The principle is general that a pleading is construed most strongly against the pleader, from which it follows that a pleader may not rely on inferences to be drawn in his favor from the facts stated by him unless the inference is a necessary inference, that is to say, one which is inescapable, or unavoidable from the standpoint of reason; and an inference is not inescapable or unavoidable if another and a different inference may be reasonably drawn from the facts as stated. When the existence of a particular fact is necessary to be shown, else the party relying thereon will have no cause of action, he cannot have that fact imported into his pleading through the device of inference unless, as aforesaid, it is an inescapable inference, one not avoidable by any other reasonable inference. If this were not true, then the rule would be reversed and instead it would be that a pleading is considered, not most strongly against the pleader, but in his favor.
Likewise when a particular fact is necessary to be shown in order to establish an affirmative defense, that fact cannot be imported into the defensive pleading by way of inference unless the inference is necessary, inescapable, unavoidable, when reasonably considered in connection with the facts stated. Inasmuch as a demurrer to a bill must get its facts from the bill, it follows that when the demurrer raises affirmative defenses, the defensive facts upon which the demurrer is based must appear from the bill either as facts expressly stated therein or from necessary, or reasonably inescapable or unavoidable inferences which may be drawn from the bill in favor of the demurrant.
As already stated, all of the defenses raised by the special demurrers are affirmative defenses, but the arguments throughout in favor of the demurrants have proceeded upon the assumption that any reasonable inference which may be drawn from the bill in support of the affirmative defenses must be allowed to the demurrants although another and a different reasonable inference might also be deduced from the facts stated in the bill. This is illustrated by the fact that the demurrants repeatedly state in the course of their briefs that Twiner went into actual possession of the land upon his purchase thereof and had so remained, whereas there is another reasonable inference, namely, that he did not go into possession at all, and has never been in actual possession. Abandoned fields and old farms are not so wholly unknown as that there shall be an inescapable inference that a purchaser at a partition sale has gone into actual possession of the property and has there remained.
The bill itself is wholly silent upon the matter of possession. It was not necessary to the statement of the case in the complainants' behalf that possession be mentioned at all. Until some person had taken possession of the land in hostility to complainants, the possession of their interest therein was in them by the constructive operation of the law, unless divested by or as a result of the partition proceedings; and they could let the land lie unoccupied and idle fifty years or more, and because of that fact alone neither limitations or laches would affect them.
As to the affirmative defenses of bona fide purchase for value, all that we have before us on that issue are the recitals of consideration in some deeds made exhibits to the bill. But inasmuch as we cannot take common knowledge of values of particular lands and the mineral rights therein, we have no way to know whether, when compared with actual values at the time or times, the considerations recited may or may not have been merely nominal or grossly inadequate. So far as the record shows, the latter may be the case; wherefore to determine otherwise we would again have to resort to presumptions or inferences in favor of the demurrants, when the burden rested upon them to show, not some of the facts, but the necessary facts in support of their defense of bona fides.
What is hereinabove more fully stated is evidently what was meant in the rather terse closing sentence of section 288, Griffith Miss. Chan. Prac., which we quote: "While a demurrer does not admit conclusions or inferences, it may not itself be based upon any inferences or conclusions arising from a bill, but only upon the facts therein stated."
This is another among the cases which continue to come to this court on demurrer when all the facts of the case ought to have been developed under answers. We repeat what was said in Federal Land Bank v. Fidelity D. Co., 165 Miss. 715, 721, 147 So. 917, 918: "The trend of modern judicial decision is against the attempt to settle close and difficult questions of law and right on a demurrer. If the demurrer raise merely a doubtful question or if the case be such that the cause of justice will probably be promoted by a determination of the ultimate right only on answer and proof, the court ought to exercise a fair judicial discretion to that end, although it may be that in technical point, the grounds of the demurrer are sustainable in strict law."
If the facts exist which would sustain the affirmative defenses urged in this case, there could be no difficulty in setting them up in answers, and we can see in the situation presented no occasion for any difficulty in proving them. Courts should not be called on in such cases to eke out the facts by the dubious and laborious process of inference, and we must decline to do so here.
Reversed and remanded.