(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 rethe 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 affirmed 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 appellant 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 James A. Townes, where appellee had left it for safe-keeping. In fact, the policy was in appellee's possession until March 26, 1913, although it was in the safe of his father for safe-keeping. The assignment by appellee's father to appellant was the act (conceding that appellee knew of it at the time) that set. the statute of limitations in motion. No cause of action existed before that. The possession or custody of James A. Townes was the custody of the appellee. It was not adverse to appellee. This suit was brought within 10 years from that date. Affirmed. On Suggestion of Error. SMITH, C. J. [4] This is a suit in equity, in which the appellee was awarded in the court below the possession of an insurance policy for $5,000, now in the possession of and claimed by the appellant. The decree of the court below was affirmed on a former day of the present term of this court. In the judgment affirming the decree of the court below the appellant and the sureties on his supersedeas bond were taxed with the costs, but with no damages. The appellee now moves the court to correct this judgment, by adding thereto 5 per cent. of the amount for which the policy was issued as damages. Section 4926, Code of 1906 (section 3202, Hemingway's Code), provides that: "In case the judgment or decree of the court below be affirmed, the Supreme Court shall render judgment against the appellant for damages, at the rate of 5 per centum and costs, as follows: If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property." * Sustained in part and cause remanded. MARS v. GERMANY et al. (No. 24076.) (Supreme Court of Mississippi, Division A. April 14, 1924. Suggestion of Error Overruled in Part and Sustained in Part May 19, 1924.) (Syllabus by the Court.) · Replevin 80-Defendant not entitled to attorney's fees and expenses in absence of showing of willfulness, malice or fraud. Defendant in replevin cannot recover attorney's fees and expenses in attending trial in the absence of a showing of willfulness, malice, or fraud. 2. Appeal and error -835 (2)-Consideration of points first made on suggestion of error optional with court. Generally, the Supreme Court will not consider new points made on suggestion of error, but it is optional with the court as to whether it will consider such points. Appeal from Circuit Court, Neshoba County; F. E. Leach, Special Judge. Action between W. H. Mars and Bill Germany and others. From the judgment rendered, the former appeals. Affirmed, as reduced, on suggestion of error. Cassidy & Potter, of Jackson, and Richardson & Mars, of Philadelphia, for appellant. J. B. Hillman and Wilson & Dees, all of Philadelphia, for appellees. PER CURIAM. Affirmed. On Suggestion of Error. HOLDEN, J. This case was recently affirmed without an opinion by this division, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tee's deed thereunder held to make prima facie showing of valid and paramount incumbrance and title. The suggestion of error now before us pre- [3. Covenants 122-Deed of trust and trussents a new point which was not made by the appellant on the main presentation, and that is that the recovery of $125 by the appellees as attorney's fees and expenses in attending the trial was wrongfully allowed by the lower court because the defendant in the replevin suit cannot recover this character of damages, unless willfulness, malice, or fraud is shown. [1] The case of Thornton v. Gardner, 99 South. 131, recently decided by Division B of this court, expressly sustains the point made by the appellant on this suggestion of error. The two cases are practically identical, and we shall follow that decision and affirm the lower court in the case before us in all respects, except that the recovery of $125 as damages for attorney's fees and attendance at court must be annulled, and nominal damages in the sum of $1 only will be allowed the appellee. [2] It is true, the general rule is that we do not consider new points made first on suggestion of error; however, it is optional with the court as to whether it will consider a point first made by suggestion of error, and in the instant case we think the complaint of appellant is so pregnant with merit that we have decided to sustain it. Therefore the judgment of the lower court is affirmed, and the amount of damages allowed appellee is reduced to the sum of $1. Overruled in part, and sustained in part. SUTTON et al. v. CANNON. (No. 23853.)* (Supreme Court of Mississippi, Division B. May 12, 1924.) (Syllabus by the Court.) 1. Covenants 39-Grantor liable for breach of warranty, though grantee had notice of incumbrance. Under Code 1906, § 2817 (Hemingway's Code, 2318), a grantor who executes a general warranty deed is liable for breach of warranty by reason of incumbrances, though grantee had notice thereof at time of purchase of property. In grantee's action for breach of warranty of title, deed of trust securing purchase-money notes, and trustee's deed thereunder, regular and valid on their face, held to make prima facie showing of a valid and paramount incumbrance and title. 4. Covenants 108(1)-Refusal to accept offer requiring payment of more than original purchase price did not preclude action for breach of warranty. Grantee's refusal to accept remote grantor's offer to convey requiring payment by grantee of more than original purchase money without credit for amounts to which he was entitled did not preclude grantee from suing grantors for breach of warranty of title by reason of incumbrances. 5. Covenants 130(4)-Measure of damages for breach of warranty is amount paid with interest. The measure of damages for breach of warranty of title is the amount of the purchase price paid with interest. COOK, J. The appellee, O. H. Cannon, filed a bill in the chancery court of Sunflower county against J. L. Sutton, and B. T. Smith and wife, appellants, whereby he sought to recover damages for a breach of 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 cerWhere 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 incumbrance or protect his title from the sale, his surrender of possession did not preclude him from recovering from grantors for breach of warranty of title. The facts as developed in this record are substantially as follows: On July 7, 1919, B. F. Dulwebber, the owner of the KraetzerCured Lumber Company, conveyed to J. L For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (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 Cannon 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 accounting in this suit. On the same day that Sutton purchased this land, he entered into a contract with the Kraetzer-Cured Lumber Company to cut and log the timber standing on the land purchased by him and deliver the same on the Southern Railway in Mississippi, the contract providing in detail the method of logging the same and the time and place of deliveries, and providing, as afterwards modified, for the payment to Sutton of $13 per thousand feet for cutting and hauling the timber, with a hold-back of $2 per thousand feet to be applied toward the discharge of the notes due by Sutton to Dulwebber; the hold-back to be applied first to the note last maturing, and then to the note maturing next to the last, the payments to be applied in this order until the entire indebtedness should be discharged. On July 12, 1919, by warranty deed, J. L. Sutton conveyed to B. T. Smith a part of the land which he had purchased from Dulwebber, for a consideration of $8,300, evidenced by five promissory notes, one maturing on January 1st of each year thereafter until all were paid, and secured by a deed of trust on the land so conveyed; the deed to Smith expressly reserving the timber growing on the land, and providing that all the grantor's rights under the Dulwebber deed and the timber contract with the Kraetzer-Cured Lumber Company were excepted from the warranty. On October 27, 1919, by warranty deed, B. T. Smith and wife conveyed to the appellee, O. H. Cannon, the land which they had purchased from Sutton, in consideration of the conveyance by Cannon to Smith of a certain house and lot valued at $1,700, and the assumption by Cannon of the $8,300 of notes which Smith owed to Sutton; the timber on the land being specifically excepted from the conveyance to Cannon. The note for $6,000 due by Sutton to Dulwebber was not paid, and thereafter Dulwebber advertised the land for sale under his deed of trust. After conferences with Sutton in regard to this indebtedness to Dulwebber, but before the sale of the land under the deed of trust, Cannon abandoned the land, and thereafter the land was sold by the trustee in the deed of trust to Dulwebber. Thereafter this suit was instituted by Cannon against J. L. Sutton and B. T. Smith and wife seeking to recover damages for a breach of the warranty in the deeds from Sutton to Smith and Smith to Cannon, and also to recover the $2 per thousand feet on the amount of timber delivered under the timber contract between Sutton and Cannon and for which no credit had been given on the notes of Smith to Sutton. Answers were filed by the several defendants, and at the final hearing, after having submitted to a master the matter of finding the amount of timber delivered by Cannon under his contract, the court entered a decree finding that the deeds from Sutton to Smith, and from Smith and his wife to Cannon, were general warranty deeds as to the land conveyed thereby; that Sutton had made default in the payment of the purchase-money notes secured by the deed of trust on said land; that by reason of such default the said Sutton deed of trust was foreclosed, and the land was wholly lost to the said Cannon and the said warranties were thereby broken; and awarded the complainant, Cannon, a decree against all the defendants for the $1,500 paid to Sutton on the Smith note, and $1,700, the value of the house and lot conveyed to Smith by Cannon, with interest on these amounts, and also a decree against Sutton alone for $2,000 found to be due under the logging contract between Sutton and Cannon. The appellee, Cannon, went into possession 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 several 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 nants 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 limitations on the warranty of title of the land, and we think the chancellor was correct in holding that these deeds were general warranty deeds as to the land conveyed. [1] Under section 2817, Code of 1906 (section 2318, Hemingway's Code), the word "warrant" without restrictive words in a conveyance embraces the covenant of freedom from incumbrances, and the fact that the appellee had knowledge of the existence of an incumbrance on the land at the time of his purchase thereof is no defense to the warrantors. The fact that a purchaser has notice of an incumbrance may be the reason for his requiring a covenant within whose scope it is included, and having taken this covenant he has the right to rest in the security afforded thereby, and to demand that the warrantor discharge it at its maturity, and upon his failure to do so the covenantee may either discharge the paramount incumbrance or surrender to the holder thereof and recover of the covenantor for a breach of the warranty. [2, 3] The next contention of the appellants is that, since the appeellee voluntarily gave up the possession of the land at a time when his possession was in no way threatened, he cannot now set up a paramount title. The appellee contracted to pay $10,000 for the tract of land purchased by him, while at the time he surrendered possession thereof, this land, together with other lands, was advertised for sale under a deed of trust to secure purchase-money notes amounting to about $27,000. There is evidence to show that the appellee failed in his efforts to have his grantors discharge this incumbrance or in any way protect his title from this sale. Under the circumstances he had the right to surrender the possession, assuming thereby, however, the risk of determining whether the incumbrance was paramount. But the appellants say that having voluntarily surrendered possession of the property to what he terms a paramount title, the burden was on the appellee to show that the title-to which he surrendered was good and valid, and that he failed to do so. Under the proof in this record there is no merit in this contention. At the time the appellee surrendered possession of the land it was advertised for sale under a deed of trust given to secure the purchase money of the land. This sale was afterwards consummated, and at the trial of this cause the appellee introduc [4] The appellants' next contention is that the appellee cannot maintain this action against them for the reason that, before the foreclosure of the Sutton deed of trust by Dulwebber, he offered to carry out the sale to the appellee on the condition that the appellee would carry out his agreement to purchase the land. The written offer of Dulwebber to the appellee was offered in evidence, and from this it appears that Dulwebber offered to execute a deed to the appellee for a consideration of $6,800, the balance due by the appellee on the Smith notes which he had assumed, with interest thereon from July 7, 1919, and also the payment of an attorney's fee of $75. This offer took no account whatever of the $2,000 which the appellee had earned under his timber contract, and which was to be credited on his notes due to Sutton, and it also required the payment of a larger sum than the original purchase price which the appellee had agreed to pay. He was under no obligation to protect his title by the acceptance of an offer requiring the payment of more than the original purchase money, and in addition the sacrifice of the sum due him under the logging contract. The appellant Sutton next assigns as error the action of the court in awarding a recovery against him for the value of the lot conveyed by the appellee to Smith, amounting to $1,700. [5, 6] We think this assignment is well taken. The measure of damages for a breach of warranty of title is the amount of the purchase price paid, with interest. The purchase price contracted to be paid to Sutton was $8,300, of which only $1,500 had been paid; the remainder having been assumed by the appellee. As against Sutton, the remote vendor, the appellee was entitled to the cancellation of the unpaid notes, and a recovery of the $1,500 paid to Sutton; but we do not think he was entitled to recover the $1,700 profit paid to his immediate vendors, Smith and wife. Having joined in the warranty of title, B. T. Smith and his wife, Emma Smith, are liable to the appellee for $1,700, the value of the house and lot conveyed to them by the appellee, with interest from the date of such conveyance, and they are jointly liable with J. L. Sutton for the $1,500 paid to Sutton on the Smith notes, while Sutton only is liable for the $2,000 found to be due the appellee under the logging contract. (100 So.) Pearl River county is situated, alleging that Monroe Smith is the father of Susie Smith, now 12 years of age, and that he had been for 5 or 6 years a widower, charged with the support of this little girl and her younger 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, 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.) (Syllabus by the Court:) Infants 16, 19-Child not convicted of violation of law involving moral turpitude cannot be committed to industrial school; on petition for commitment of child to industrial tions specified in statute; order committing child to industrial school without evidence to support it reversed on appeal. school evidence must show existence of condi Mrs. Mitchell is seriously, and perhaps fatally ill, and is confined to a hospital at Gulfport, Miss., and the said little girl is left without a home, unguarded, and is likely to develop into criminal practices or be subjected to inhuman treatment or conduct; that the father, Monroe Smith, was physically disabled while in service with the overseas forces during the World War, and has 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, creat-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 providing for admission therein, it is provided inter alia that children "may be admitted to said institution, in the future, on the following conditions, and no other: "(a) Where such child has violated any municipal ordinance or state law, when the violation thereof involved moral turpitude. "(b) When a circuit judge or a chancellor shall certify in writing that such child is either immoral, delinquent, or incorrigible in the opinion of such circuit judge or chancellor, and shall file said written certificate with the superintendent of said institution as a prerequisite of admission." A child who has never been convicted of the violation of any law involving moral turpitude, and who is shown by the undisputed evidence to be an obedient child to constituted authority, cannot be committed to said institution. The judge or chancellor must hear evidence, and the evidence must show the existence of the conditions contained in the statute; and, where a judge makes an order of committal without evidence to support it, his judgment will be reversed. pecially the said Susie, as he has no other relative who will give her a suitable home; that she is therefore abandoned, destitute, and subjected to immoral circumstances, and petitioner prayed for an order commanding Monroe Smith to appear before the court and answer the petition as to why the child should not be committed to the said institution; that he also bring before the court the said minor; and that, after a full hearing, the court will commit the said child to the said Mississippi Industrial Training School. Mrs. M. J. Holden, the mother of the child and former wife of Monroe Smith, was at the time of the filing of the petition living with her husband, M. J. Holden, in the town of Picayune in Pearl River county. She was not made a party to the petition nor given any notice thereof; neither does the record show that Susie Smith, minor, was served 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. Petition by L. S. Smith for commitment of Susan Smith, a minor, to the Industrial Training School. From a judgment denying her petition to vacate the order of commitment, Mrs. M. J. Holden appeals. Reversed and dismissed. fendants having waived the issuance of process of service on them, and having agreed in writing that the said petition be heard this day by the court, and the parties being present in open court, and the court, having heard and considered the said petition and the evidence in support thereof, doth find 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 to the petition," and ordered said minor com ETHRIDGE, J. On April 23, 1923, L. S. Smith, the grandfather of Susan Smith, amitted 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 topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |