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(100 So.) pellant, and to require appellant to surrender Section 4927, Code of 1906 (section 3203, up to appellee the policy in question. After Hemingway's Code), provides that, if the valthe settlement between appellee and his fa- ue of the property in controversy does not ther in January, 1913, and the surrender of appear in the record, the case shall be re the policy by the latter to the former, the fa- manded to the court below for the ascertainther had no interest left, except the bare ment thereof in order that the amount of legal title, which later he assigned to appel- damages may be determined. The policy here lant, but appellee had the beneficial interest. in controversy is of course personal propTo state the case it seems is to answer the erty, but there is no evidence in the record question. Certainly a court of law would not from which its present value can be ascerhave jurisdiction of such a cause of action. ) tained, so that the amount of damages to There is no statute of limitations dealing which the appellee is entitled cannot be now specifically with such a cause. Therefore determined. The motion, however, will be section 3125, Code of 1906 (Hemingway's sustained to the extent that the judgment by Code, $ 2489), applies. This statute provides, which the decree of the court below was among other things, that bills for relief not afiirmed will be corrected, so as to award the elsewhere specifically provided for shall' be appellee 5 per cent. damages on the value filed within 10 years after the cause of ac- of the policy, for the ascertainment of which tion accrued. This suit was brought within value the cause will be remanded to the 10 years after appellee's cause of action court below. accrued. Until March 26, 1913, when appel Sustained in part and cause remanded. lant claims that her grandfather assigned said policy to her, the possession of said policy by appellee's father was appellee's possession. The policy was in the safe of

MARS V. GERMANY et al. (No. 24076.) James A. Townes, where appellee had left

(Supreme Court of Mississippi, Division A. it for safe-keeping. In fact, the policy was

April 14, 1924. Suggestion of Error Overin appellee's possession until March 26, 1913, ruled in Part and Sustained in Part May 19, although it was in the safe of his father for

1924.) safe-keeping. The assignment by appellee's father to appellant was the act (conceding

(Syllabus by the Court.). that appellee knew of it at the time) that set 1. Replevin. Em 80–Defendant not entitled to the statute of limitations in motion. No

attorney's fees and expenses in absence of cause of action existed before that. The pos showing of willfulness, malice or fraud, session or custody of James A. Townes was Defendant in replevin cannot recover atthe custody of the appellee. It was not ad- torney's fees and expenses in attending trial in Ferse to appellee. This suit was brought the absence of a showing of willfulness, malice, within 10 years from that date.

or fraud. Affirmed.

2. Appeal and error 835(2)-Consideration

. of points first made on suggestion of error On Suggestion of Error.

optional with court.

Generally, the Supreme Court will not conSMITH, C. J. [4] This is a suit in equity, sider new points made on suggestion of error, in which the appellee was awarded in the but it is optional with the court as to whether court below the possession of an insurance it will consider such points. policy for $5,000, now in the possession of and claimed by the appellant. The decree of

Appeal from Circuit Court, Neshoba Coun. the court below was affirmed on a former day of the present term of this court. In the ty; F. E. Leach, Special Judge. judgment affirming the decree of the court

Action between W. H. Mars and Bill Gerbelow the appellant and the sureties on his many and others. From the judgment rendsupersedeas bond were taxed with the costs, ered, the former appeals. Affirmed, as rebut with no damages.

The appellee now duced, on suggestion of error. moves the court to correct this judgment, Cassidy & Potter, of Jackson, and Richby adding thereto 5 per cent. of the amount | ardson & Mars, of Philadelphia, for appelfor which the policy was issued as damages. lant. Section 4926, Code of 1906 (section 3202, J. B. Hillman and Wilson & Dees, all of | Hemingway's Code), provides that:

Philadelphia, for appellees. "In case the judgment or decree of the court below be affirmed,

the Supreme PER CURIAM, Affirmed. Court shall render judgment against the appellant for damages, at the rate of 5 per centum and costs, as follows:

On Suggestion of Error. * If the judgment or decree bra for the possession of real or personal property, the damages shall be as

HOLDEN, J. This case was recently afsessed on the value of the property.”

firmed without an opinion by this division. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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The suggestion of error now before us pre- 13. Covenants Om 122-Deed of trust and trussents a new point which was not made by too's deed thereunder held to make prima

facie showing of valid and paramount incum

brance and title. that is that the recovery of $125 by the appellees as attorney's fees and expenses in attending the trial was wrongfully allowed of title, deed of trust securing purchase-money

notes, and trustee's deed thereunder, regular

error.

acter of damages, unless willfulness, malice, brance and title. or fraud is shown.

[1] The case of Thornton v. Gardner, 994. Covenants en 108(1)-Refusal to accept of. South. 131, recently decided by Division B

fer requiring payment of more than original

purchase price did not preclude action for of this court, expressly sustains the point

breach of warranty. . made by the appellant on this suggestion of

Grantee's refusal to accept remote granThe two cases are practically identi- tor's offer to convey requiring payment by cal, and we shall follow that decision and af- Igrantee of more than original purchase money firm the lower court in the case before us in without credit for amounts to which he was enall respects, except that the recovery of $125 titled did not preclude grantee from suing as damages for attorney's fees and attend- grantors for breach of warranty of title by ance at court must be annulled, and nominal

reason of incumbrances. damages in the sum of $1 only will be al- |5. Covenants am 130 (4)—Measure of damages lowed the appellee.

for breach of warranty is amount paid with [2] It is true, the general rulé is that we interest. do not consider new points made first on The measure of damages for breach of warsuggestion of error; however, it is optional ranty of title is the amount of the purchase with the court as to whether it will consider price paid with interest. a point first made by suggestion of error, and 6. Covenants Om 130(7)-Grantee suing remote in the instant case we think the complaint of

grantor could not recover value of real esappellant is so pregnant with merit that we

tate conveyed to immediate grantor,

A grantee who conveyed other property

lowed appellee is reduced to the sum of $1. | remote grantor for breach of warranty of title, Overruled in part, and sustained in part.

to amount paid on notes and to cancellation of unpaid notes, but not to value of real estate conveyed to immediate grantor.

Appeal from Chancery Court, Sunflower

County; E. N. Thomas, Chancellor. SUTTON et al. v. CANNON.. (No. 23853.) * Suit by O. H. Cannon against J. L. Sutton

and others. Decree for complainant and de(Supreme Court of Mississippi, Division B. fendants appeal. Reversed in part, and afMay 12, 1924.)

firmed in part.

Everett & Forman and Quinn & Cooper, (Syllabus by the Court.)

all of Indianola, for appellants. 1. Covenants m39-Grantor liable for breach H. C. Mounger, of Indianola, for appellee. of warranty, though grantee had notice of incumbrance. Under Code 1906, 8 2817 (Hemingway's

COOK, J. Code, & 2318), a grantor who executes a gen-| filed a bill in the chancery court of Sunflow

er county against J. L. Sutton, and B. T. ranty by reason of incumbrances, though gran: Smith and wife, appellants, whereby he tee had notice thereof at time of purchase of sought to recover damages for a breach of property.

warranty in certain deeds conveying to him 2. Covenants =101-Grantee's surrender of a tract of land, with the timber reserved,

possession held not to preclude recovery of and also for an accounting for the sum aldamages for breach of warranty of title. . leged to be due him by Sutton under a cer

Where land for which grantee had contract- tain logging contract involving the reserved ed to pay $10,000 was advertised for sale with timber on said tract of land, and from a deother lands under a deed of trust securing notes cree in favor of Cannon this appeal was for $27,000, and grantee made unsuccessful ef- prosecuted by the several defendants. fort to induce grantors to discharge incum

The facts as developed in this record are brance or protect his title from the sale, his

Cured Lumber Company, conveyed to J. L. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and ludoxos

warranty of title.

*Suggestion of error overruled June 9, 1924.

(100 So.) Sutton certain land located in Sunflowered to deliver to the Kraetzer-Cured Lumber county, Miss., reserving from the conveyance Company; the price which Sutton agreed to all the timber standing on the land. The pay to Candon for cutting and hauling this consideration named in the deed was $2,000 timber being $13 per thousand feet, $11 per cash, and a series of six promissory notes, thousand to be paid in cash, and $2 to be apaggregating $30,000, secured by a vendor's plied as a credit on the notes which Smith had lien reserved in the deed and by a deed of given to Sutton for the purchase money of trust on the land so conveyed, and the fur- said land and which Cannon had assumed, the ther consideration of the covenants and agree contract providing that this $2 per thousand ments to be kept and performed by the gran- should be credited to the first note maturing tee in a certain timber contract of the same until that had been discharged, and then to date between the Kraetzer-Cured Lumber the other notes in the order of their maturiCompany and the grantee for the removal of ty. Under this contract Cannon cut and deall the timber standing or located on the livered a large quantity of logs for which he lands so conveyed.

received no credit and for which he seeks an on the same day that Sutton purchased accounting in this suit. this land, he entered into a contract with The note for $6,000 due by Sutton to Dulthe Kraetzer-Cured Lumber Company to cut webber was not paid, and thereafter Duland log the timber standing on the land pur-webber advertised the land for sale under chased by him and deliver the same on the his deed of trust. After conferences' with Southern Railway in Mississippi, the con- Sutton in regard to this indebtedness to Dultract providing in detail the method of log- webber, but before the sale of the land unging the same and the time and place of de- der the deed of trust, Cannon abandoned the liveries, and providing, as afterwards modi land, and thereafter the land was sold by fied, for the payment to Sutton of $13 per the trustee in the deed of trust to Dulwebthousand feet for cutting and hauling the ber. Thereafter this suit was instituted by timber, with a hold-back of $2 per thousand Cannon against J. L. Sutton and B. T. Smith feet to be applied toward the discharge of and wife seeking to recover damages for a the notes due by Sutton to Dulwebber; the breach of the warranty in the deeds from hold-back to be applied first to the note last Sutton to Smith and Smith to Cannon, and maturing, and then to the note maturing also to recover the $2 per thousand feet on next to the last, the payments to be applied the amount of timber delivered under the in this order until the entire indebtedness timber contract between Sutton and Canshould be discharged.

non and for which no credit had been given On July 12, 1919, by warranty deed, J. L. on the notes of Smith to Sutton. Answers Sutton conveyed to B. T. Smith a part of the were filed by the several defendants, and land which he had purchased from Dulweb- at the final hearing, after having submitted ber, for a consideration of $8,300, evidenced to a master the matter of finding the amount by five promissory notes, one maturing on of timber delivered by Cannon under his January 1st of each pear thereafter until contract, the court entered a decree finding all were paid, and secured by a deed of trust that the deeds from Sutton to Smith, and on the land so conveyed; the deed to Smith from Smith and his wife to Cannon, were expressly reserving the timber growing on general warranty deeds as to the land con-. the land, and providing that all the grantor's veyed thereby; that Sutton had made derights under the Dulwebber deed and the fault in the payment of the purchase-money timber contract with the Kraetzer-Cured notes secured by the deed of trust on said Lumber Company were excepted from the land ; that by reason of such default the said warranty.

Sutton deed of trust was foreclosed, and the On October 27, 1919, by warranty deed, B. land was wholly lost to the said Cannon T. Smith and wife conveyed to the appellee, and the said warranties were thereby bro0. H. Cannon, the land which they had pur- ken; and awarded the complainant, Cannon, chased from Sutton, in consideration of the a decree against all the defendants for the conveyance by Cannon to Smith of a certain $1,500 paid to Sutton on the Smith note, and bouse and lot valued at $1,700, and the as- $1,700, the value of the house and lot consumption by Cannon of the $8,300 of notes veyed to Smith by Cannon, with interest which Smith owed to Sutton : the timber on on these amounts, and also a decree against the land being specifically excepted from the Sutton alone for $2,000 found to be due unconveyance to Capnon.

der the logging contract between Sutton and The appellee, Cannon, went into posses- Cannon. sion of the land purchased by him from The appellants first contend that on acSmith, and on January 1, 1920, he paid the count of the covenants and agreements in first note due by Smith to Sutton; the the original deed from Dulwebber to Sutton, amount thereof being $1,500. In June, 1920, of which Cannon had knowledge, and which Cannon entered into a contract with Sutton were referred to in the deeds from Sutton to cut and haul the timber which Dulwebber to Smith and Smith to Cannon, there was had reserved and which Sutton had contract- | no warranty of title in the latter deeds.

These sereral deeds convey by general, the land was sold, and also the trustee's warranty the land therein described, ex- deed conveying the land to the purchaser at pressly excepting from these conveyances all such sale. These instruments are regular the timber growing on the land. The cove and valid on their face, and make a prima Dants and agreements in reference to the facie showing of a valid and paramount incutting and the removal of the timber re- cumbrance and title. There is no evidence lated only to the consideration for the sale whatever in the record to call in question of the land and the method of paying this the validity of this trustee's sale. consideration. They are in no sense limita- [4] The appellants' next contention is that tions on the warranty of title of the land, the appellee cannot maintain this action and we think the chancellor was correct in against them for the reason that, before the holding that these deeds were general war- foreclosure of the Sutton deed of trust by ranty deeds as to the land conveyed. Dulwebber, he offered to carry out the sale

[1] Under Section 2817, Code of 1906 (sec. to the appellee on the condition that the aption 2318, Hemingway's Code), the word pellee would carry out his agreement to pur"warrant” without restrictive words in a chase the land. The written offer of Dulconveyance embraces the covenant of free-webber to the appellee was offered in evidom from incumbrances, and the fact that dence, and from this it appears that. Dulwebthe appellee had knowledge of the existence ber offered to execute a deed to the appellee of an incumbrance on the land at the time of for a consideration of $6,800, the balance due his purchase thereof is no defense to the by the appellee on the Smith notes which warrantors. The fact that a purchaser has he had assumed, with interest thereon from notice of an incumbrance may be the reason July 7, 1919, and also the payment of an atfor his requiring a covenant within whose torney's fee of $75. This offer took no acscope it is included, and having taken this count whatever of the $2,000 which the apcovenant he has the right to rest in the se- pellee had earned under his timber contract, curity afforded thereby, and to demand that and which was to be credited on his notes the warrantor discharge it at its maturity, due to Sutton, and it also required the payand upon his failure to do so the covenantee ment of a larger sum than the original purmay either discharge the paramount incum- chase price which the appellee had agreed brance or surrender to the holder thereof to pay. He was under no obligation to proand recover of the covenantor for a breach tect his title by the acceptance of an offer of the warranty.

requiring the payment of more than the orig[2, 3] The next contention of the appel- inal purchase money, and in addition the lants is that, since the appeellee voluntarily sacrifice of the sum due him under the loggave up the possession of the land at a time ging contract. when his possession was in no way threat- The appellant Sutton next assigns as error ened, he cannot now set up a paramount ti- the action of the court in awarding a recortle. The appellee contracted to pay $10,000 ery against him for the value of the lot confor the tract of land purchased by him, while veyed by the appellee to Smith, amounting to at the time he surrendered possession there- $1,700. of, this land, together with other lands, was [5, 6] We think this assignment is well advertised for sale under a deed of trust to taken. The measure of damages for a secure purchase-money notes amounting to breach of warranty of title is the amount of about $27,000. There is evidence to show the purchase price paid, with interest. The that the appellee failed in his efforts to have purchase price contracted to be paid to Suthis grantors discharge this incumbrance or ton was $8,300, of which only $1,500 had in any way protect his title from this sale. been paid; the remainder haring been asUnder the circumstances he had the right sumed by the appellee. As against Sutton, to surrender the possession, assuming there the remote vendor, the appellee was entitled by, however, the risk of determining whether to the cancellation of the unpaid notes, and the incumbrance was paramount. But the a recovery of the $1,500 paid to Sutton; but appellants say that having voluntarily sur- we do not think he was entitled to recover rendered possession of the property to what the $1,700 profit paid to his immediate venhe terms a paramount title, the burden was dors, Smith and wife. on the appellee to show that the title to Having joined in the warranty of title, B. which he surrendered was good and valid, T. Smith and his wife, Emma Smith, are liand that he failed to do so. Under the proof | able to the appellee for $1,700, the value of in this record there is no merit in this con- the house and lot conveyed to them by the tention. At the time the appellee surrender-appellee, with interest from the date of such ed possession of the land it was advertised conveyance, and they are jointly liable with for sale under a deed of trust given to se- J. L. Sutton for the $1,500 paid to Sutton on cure the purchase money of the land. This the Smith notes, while Sutton only is liable sale was afterwards consummated, and at for the $2,000 found to be due the appellee the trial of this cause the appellee introduc- under the logging contract. ed in evidence the trust deed under which The decree of the court below will there

(100 So.) fore be reversed in so far as it awards a re- ! Pearl River county is situated, alleging that covery against J. L. Sutton for the item of Monroe Smith is the father of Susie, Smith, $1,700 and interest thereon; in other respects now 12 years of age, and that he had been the decree will be affirmed.

for 5 or 6 years a widower, charged with Reversed in part, and affirmed in part. the support of this little girl and her young

er sister, 10 years of age; that, when Monroe Smith was left a widower, he placed the child Susie in care of his sister, Mrs. Mitchell, and that he had furnished her with

necessaries as far as he was able to do so, HOLDEN V. SMITH. (No. 24130.)

but that said child is now left abandoned (Supreme Court of Mississippi, Division B. and destitute, for the reason that the said May 12, 1924.)

Mrs. Mitchell is seriously, and perhaps fa

tally ill, and is confined to a hospital at Gulf(Syllabus by the Court:)

port, Miss., and the said little girl is left Infants am 16, 19-Child not convicted of vio- without a home, unguarded, and is likely to lation of law involving moral turpitude can- develop into criminal practices or be subnot be committed to industrial school; on jected to inhuman treatment or conduct; petition for commitment of child to industrial that the father, Monroe Smith, was physischool evidence must show existence of conditions specified in statute; order committing cally disabled while in service with the overchild to industrial school without evidence to seas forces during the World War, and has support it reversed on appeal.

been under treatment of the government Under chapter 195, Laws 1922, amending physicians for about 2 years, and on this acsection 6 of chapter 111, Laws of 1916, creato count he is physically unable to provide the ing the Industrial Training School for de- necessary support for his two children, eslinquent and criminally inclined children, and pecially the said Susie, as he has no other providing for admission therein, it is provided relative who will give her a suitable home; inter alia that children “may be admitted to said that she is therefore abandoned, destitute, institution, in the future, on the following con

and subjected to immoral circumstances, and ditions, and no other:

“(a) Where such child has violated any mu- petitioner prayed for an order commanding Dicipal ordinance or state law, when the viola- Monroe Smith to appear before the court tion thereof involved moral turpitude.

and answer the petition as to why the child "(b) When a circuit judge or a chancellor should not be committed to the said instishall certify in writing that such child is ei- tution; that he also bring before the court ther immoral, delinquent, or incorrigible in the said minor; and that, after a full hearthe opinion of such circuit judge or chancellor, ing, the court will commit the said child to and shall file said written certificate with the superintendent of said institution as a prerequi- the said Mississippi Industrial Training site of admission.” A child who has never been School. convicted of the violation of any law involving

Mrs. M. J. Holden, the mother of the child moral turpitude, and who is shown by the un- and former wife of Monroe Smith, was at disputed evidence to be an obedient child to the time of the filing of the petition living constituted authority, cannot be committed to with her husband, M. J. Holden, in the town said institution. The judge or chancellor must of Picayune in Pearl River county. She was bear evidence, and the evidence must show the not made a party to the petition nor given existence of the conditions contained in the statute; and, where a judge makes an order any notice thereof; neither does the record of committal without evidence to support it, show that Susie Smith, minor, was served bis judgment will be reversed.

with any process. The court at the April,

1923, term of the circuit court of Pearl River Appeal from Circuit Court, Pearl River county signed an order reciting that the “deCounty; J. Q. Langston, Judge.

fendants having waived the issuance of pro

cess of service on them, and having agreed in Petition by L. S. Smith for commitment writing that the said petition be heard this of Susan Smith, a minor, to the Industrial day by the court, and the parties being presTraining School. From a judgment denying ent in open court, and the court, having her petition to vacate the order of commit heard and considered the said petition and ment, Mrs. M. J. Holden appeals. Reversed the evidence in support thereof, doth find and dismissed.

that the minor defendant, Susie Smith, is Tally & Mayson, of Hattiesburg, for ap- delinquent and incorrigible, and should be pellant.

committed to the Mississippi Industrial and J. E. Stockstill, of Picayune, for appellee. Training School, and the court finds that all

necessary parties have been made defendants ETHRIDGE, J. On April 23, 1923, L. S. to the petition," and ordered said minor comSmith, the grandfather of Susan Smith, a mitted to said institution. minor 12 years of age, filed a petition with Thereafter Mrs. M. J. Holden, the mother the circuit judge of the district in which of the said child, went to the home of the

For other cases see same topio and KEY-NUMBER in all Key-Numbered Digests and Indexes

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