Opinion
No. 41906.
June 12, 1961.
1. Contempt — violation of injunctive decree — right of defendants to show trees cut were on defendants' land exempt from area described in decree.
In contempt proceeding for violation of decree enjoining defendants from trespassing on plaintiffs' land in violation of decree, which excepted from its terms 60 acres of land owned by defendants, defendants had right to show that trees cut were on defendants' land which was exempt from area described in decree.
2. Contempt — burden of proof — on party asserting contempt had been committed.
Burden of proof to establish fact that a contempt has been committed is on party asserting it.
3. Injunction — evidence — finding that defendant had not violated injunctive decree sustained.
Evidence sustained finding that defendants did not violate injunction restraining them from trespassing upon certain lands with exception of 60 acres owned by defendants.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Wilkinson County; WALTER D. COLEMAN, Chancellor.
Carl A. Chadwick, Natchez; Joe Upton, Gloster; Barnett, Montgomery, McClintock Cunningham, Jackson, for appellants.
I. Defendants by their pleadings admit that the final decree in Cause No. 4434 adjudged complainants to be the owners of the lands described therein. First Nat. Bank v. Adams, 123 Miss. 279, 83 So. 308; Hinton v. Mills, 120 Miss. 388, 82 So. 264; Jones County Land Co. v. Fox, 120 Miss. 798, 83 So. 241; Mixon v. Clevenger, 74 Miss. 73, 20 So. 148.
II. Defendants have by their answer admitted they cut 168 trees, 8 of which were gum, on the lands of complainants. Morris v. Columbia, 184 Miss. 342, 186 So. 292.
III. Defendants have, by their answer, admitted that the statutory penalty for cutting 168 trees, 8 of which were gum, is $920.
IV. Defendants admit by paragraph 3 of their answer that they went upon complainants' lands and put up posted signs at various places on said lands.
V. The Court had jurisdiction of the subject matter and of the parties, and when it entered the final decree of April 5, 1955, in Cause No. 4434, and the Court adjourned and no appeal was taken, it became final for all purposes, and the Court erred in permitting it to be subjected to a collateral attack and setting aside the terms of said final decree. Neely v. Craig, 162 Miss. 717, 139 So. 835; Reed v. General Motors Accept. Corp., 228 Miss. 121, 87 So.2d 95; Rogers v. Ziller (Miss.), 48 So.2d 476.
VI. The final decree of April 5, 1955, in Cause No. 4434, is res judicata and conclusively establishes complainants to be the owners of the lands described therein, regardless of whether or not said lands form any part of defendants' homestead, set aside to him in Causes Nos. 1154 and 1390, and the Court erred in not so holding. Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200, 317, 60 L.R.A. 33, 180 U.S. 1, 45 L.Ed. 395, 21 S.Ct. 240; Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 146 So. 134; Browne v. Merchants Co. 186 Miss. 430, 191 So. 120; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Davis v. Dantzler Lumber Co., 126 Miss. 812, 89 So. 148; Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273; Ex Parte Lehman, 60 Miss. 967; Ex Parte Wimberly, 57 Miss. 437; Grenada Bank v. Adams, 87 Miss. 669, 40 So. 4; Hairston v. Montgomery, 102 Miss. 364, 59 So. 793; Hines v. Cole, 123 Miss. 254, 85 So. 199; Huston v. King, 119 Miss. 347, 80 So. 779; Lion Oil Refining Co. v. Crystal Oil Co., 171 Miss. 36, 156 So. 593; Love v. Yazoo City, 162 Miss. 65, 138 So. 600; McHenry v. State, 91 Miss. 562, 44 So. 831; Mitchell v. State, 179 Miss. 814, 176 So. 743, 121 A.L.R. 259; Moss v. Weaver, 210 Miss. 228, 49 So.2d 235; National Life Acc. Ins. Co. v. Prather, 172 Miss. 567, 161 So. 117; Taylor v. Bell, 194 Miss. 112, 11 So.2d 825; Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874; Thompson v. State, 124 Miss. 463, 86 So. 871; Webb v. Jackson, 174 Miss. 808, 165 So. 809; Witherspoon v. State, 138 Miss. 310, 103 So. 134; Yazoo M.V.R. Co. v. Pope, 104 Miss. 339, 61 So. 450.
Richard T. Watson, Woodville, for appellees.
I. The answer and cross-bill of defendants denied complainant's ownership of the lands in controversy; denied that either defendant was guilty of contempt of court and thereby put complainants upon proof. Bloom v. McGraff Compton, 53 Miss. 256; Citizens Bank v. Budding, 65 Miss. 284, 4 So. 94; Covel v. Smith, 68 Miss. 297, 8 So. 850; Downing v. Starnes (Miss.), 35 So.2d 536; Everett v. Hester, 218 Miss. 568, 67 So.2d 509; Fatheree v. Griffin, 153 Miss. 570, 121 So. 119; Hansbrough v. State, 193 Miss. 467, 10 So.2d 171; Heiss v. Caldwell, 215 Miss. 256, 60 So.2d 641; Hinton v. Mills, 120 Miss. 388, 82 So. 266; Hovey v. Elliott, 167 U.S. 409, 42 L.Ed. 215, 17 S.Ct. 841, 62 A.L.R. 672; McHenry v. State, 91 Miss. 562, 44 So. 831; Mathieu v. Crosby Lumber Mfg. Co., 210 Miss. 484, 49 So.2d 894; Morris v. City of Columbia, 184 Miss. 342, 186 So. 292; Redding v. State, 184 Miss. 371, 185 So. 560, 12 A.L.R. 2d 1099; Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 86 F.2d 727, 148 A.L.R. 1033; Sinquefield v. Valentine, 160 Miss. 61, 133 So. 210; Secs. 1075, 1300, 1302, Code 1942; Griffith's Mississippi Chancery Practice, Sec. 377.
II. The answer and cross-bill affirmatively allege, the answer to the cross-bill of T.B. Tillery admits, and the Court found from the overwhelming evidence that the defendant and cross-complainant, Luther Vines, was the legal and equitable owner of the lands in controversy and, therefore, neither defendant was guilty of contempt of court. 28 Am. Jur., Sec. 332 p. 845.
III. The lands in controversy have constituted a part of the homestead of the defendant, Luther Vines, and his predecessor in title, G.N. Ashley, continuously since 1917 and, therefore, are exempt from seizure, execution or attachment. Biggs v. Roberts, 237 Miss. 406, 115 So.2d 151; Sec. 317, Code 1942; 26 Am. Jur., Secs. 11, 93 pp. 13, 58.
This is in essence a lawsuit involving the location and ownership of sixty acres of land adjacent to the Homochitto River in Wilkinson County. It would serve no purpose to set forth the lengthy prior litigation between the parties, the respective sources of title, the pleadings in the instant action, and the varying descriptions of these irregular tracts of land constituting the sixty acres. We have studied carefully the record and briefs, and conclude the decree of the chancery court should be affirmed.
Appellants and appellees, respectively, relied on surveys of these lands made by different surveyors. The trial court accepted that made by Campbell, who testified for appellees, defendants below. Appellants admitted in their answer to the cross bill that Vines owned sixty acres in sections 43 and 9; he and his family had been living on this land as their homestead since 1935; and the 1955 decree in favor of appellants should be set aside insofar as the injunction therein pertained to the sixty acres owned and occupied by Vines as his homestead.
(Hn 1) Appellees' surveyor testified that, after Vines is allotted on the ground the acreage owned by him in these sections, there is no area left for appellants' claimed lands. Appellants concede that their chain of title requires Vines to be first allotted his acreage. The 1955 decree, upon which these contempt proceedings were based, also recognized that fact. Hence the trial court's decree in effect held that appellees had not violated the 1955 decree, since they had not trespassed on any lands owned by appellants. The great weight of the evidence supports this finding. The testimony shows that the 1917 sheriff's execution deed, through which appellants claim, attempts to describe lands in this section which are nonexistent, after Vines has been given his interest, without upsetting property lines established and accepted for over forty years. Moreover, the equities are all in favor of Vines. He and his predecessors have been using and occupying this land as a homestead since at least 1917. Appellants have exercised no continuous possession over it.
(Hn 2) Vines was charged with violating the 1955 decree, which excepted from its terms the sixty acres owned by him. The bill asked for a contempt citation and statutory penalties for cutting trees. Vines had the right to show that he cut trees only on lands owned by him which were excepted from the area described in the 1955 decree. The burden of proof to establish the fact that a contempt has been committed is on the party asserting it, but, if the defendant claims an exception stated in the injunction, the burden is on him to bring his acts within the exception. 43 C.J.S., Injunctions, Sec. 273. (Hn 3) The great weight of the evidence supports the finding that Vines did this. Defendants properly raised the issue as to whether they in fact violated the injunction. The court was amply warranted in finding they had not. 43 C.J.S., Injunctions, Sec. 272. Their evidence identified and located the land adjudged to be vested in Vines by the 1955 decree. This was proper. 49 C.J.S., Judgments, Sec. 80; 50 C.J.S., Judgments, Sec. 834.
The appellants, in their answer to the cross bill, admitted that Vines owned sixty acres of land in sections 43 and 9, and the 1955 decree in their favor should be set aside insofar as it pertained to the sixty acres which are owned and occupied by Vines as a homestead. Consequently, since the evidence showed that, after Vines had been allotted his acreage, the lands, for which appellants made claim under the 1917 sheriff's execution, did not exist, it follows that the court did not err in dissolving the injunction and setting aside the decree of 1955.
Appellees' counsel have filed a suggestion of the death of Luther Vines since entry of the final decree in the chancery court, and a motion by the heirs at law of Luther Vines, who died intestate, to revive this cause in their name. That motion is sustained.
Motion to revive in names of heirs of appellee Luther Vines, sustained; and on the merits, affirmed.
Lee, P.J., and Kyle, Gillespie and Jones, JJ., concur.