ing an understanding with the other defendants whereby they were to defend for her, and that she did not know that the suit was for partition, which motion was overruled. Held that, while appellant was negligent in not ascertaining that the bill prayed for partition as well as injunction against cutting the timber, it was error to refuse to set aside the decree pro confesso against her, as plaintiff would not have been injured by such action. [Ed. Note. For other cases, see Equity, Dec. Dig. § 419.*] Appeal from Chancery Court, Adams County; J. S. Hicks, Chancellor. Suit by William Junkin against Mrs. Jane Field and others. From a decree pro confesso against defendant named, after which an order to vacate it was overruled, she appeals. Decree reversed, decree pro confesso set aside, and cause remanded. The appellant, Mrs. Jane Field, and the appellee, Wm. Junkin, were tenants in common of a certain tract of land described in the pleadings. Mrs. Field sold her interest in the timber on the land to Messrs. Wilcox and Burkley, who afterwards began to deaden and cut the timber. Thereafter Junkin filed a bill in chancery against Mrs. Field and Wilcox and Burkley as codefendants. The bill of complaint prayed for a writ of injunction restraining Wilcox and Burkley from trespassing upon the lands and depredating upon the timber, and asked for the appointment of a receiver to take possession of the trees already cut, and for the appointment of a commissioner to ascertain damages, and for the appointment of a commissioner to divide the property into lots, awarding each tenant in common their respective portion of same, and, in case the commissioners find the property incapable of division, for a sale of same and a division of the proceeds. Thereupon the writ of injunction and summons was issued and served upon all the defendants. Neither the injunction writ nor the summons showed that the proceeding sought for a partition of the land itself. Defendants Wilcox and Burkley employed counsel to defend the suit as to themselves. On the hearing, the suit was dismissed against Messrs. Wilcox and Burkley, and then, for the first time, appellant, Mrs. Field, was informed that a decree pro confesso had been taken against her; the decree providing for the appointment of a commissioner and sale of the land. She thereupon filed an affidavit, which set out the fact that she had had an understanding between Messrs. Wilcox and Burkley that they would defend the suit, and that she had no knowledge that the suit was for a partition or sale of the land, but believed it only affected the timber rights, and accompanied this affidavit by a motion to vacate the decree pro confesso. The court overruled her motion and granted an appeal. Reed & Brandon, for appellant. Ratcliff & Truly, for appellee. The SMITH, J. While appellant was negligent in not ascertaining that the bill filed against her in the court below prayed for a partition of the land in controversy, as well as for an injunction against cutting the timber thereon, her mistake in supposing that the bill involved only the cutting of timber was a very natural one under the circumstances. setting aside of the decree pro confesso would have worked no serious injury to appellee, but would simply have deprived him of the advantage which he had secured by reason of appellant's neglect to file her answer. Under the circumstances, we think the court below erred in overruling the motion to set aside the decree pro confesso. Yost v. Alderson, 58 Miss. 40. The decree of the court below is reversed, the decree pro confesso set aside, and the cause remanded, with leave to appellant to answer the bill within 30 days after mandate filed in the court below. (99 Miss. 845) BOARD OF SUP'RS OF WAYNE COUNTY v. MOBILE & O. R. CO. (No. 15,250.) (Supreme Court of Mississippi. July 3, 1911.) TAXATION (§ 459*)—"OVERVALUATION KNOWN TO BE SUCH"-RIGHT TO RELIEF. taxation as timbered lands, is entitled to reAn owner of cut-over lands, assessed for duction of the assessment as for overvaluation known to be such, within Code 1906, § 4312. [Ed. Note.--For other cases, see Taxation, Cent. Dig. § 815; Dec. Dig. § 459.* For other definitions, see Words and Phrases, vol. 6, p. 5129.] Appeal from Circuit Court, Wayne Coun ty; T. H. Barrett, Judge. "To be officially reported." Petition by the Mobile & Ohio Railroad Company against the Board of Supervisors of Wayne County. From a judgment in favor of the Railroad Company, the Board appeals. Affirmed. The appellees filed a petition before the board of supervisors of Wayne county asking a reduction of their assessment. The case was tried upon an agreed statement of facts, which is as follows: "The following statement of facts is hereby agreed to between the attorney of record of the Mobile & Ohio Railroad Company and the attorney of record for Wayne county, Miss., and shall be taken and considered by the court as the agreed statement of facts in said cause, and said cause shall be determined upon said facts, to wit: That, on the assessment of lands by the tax assessor and board of supervisors of the said county of Wayne, the total raise of real estate values in said county over the preceding assessment was $42,592; that of said amount the raise on the lands of the Mobile & Ohio Railroad Company is approximately $37,000 (said land roll of said county being hereby referred to and made a part hereof, and a copy of the orders and doings of the board of supervisors in reference to said assessment is hereby attached as Exhibit A); that at the November, 1909, term of the board of supervisors of said Wayne county, the defendant filed its formal motion to reduce said assessment, and that said application was denied, for the reason that the said board of supervisors did not think it had the legal authority to reduce said assessment; that said board was and is of the opinion that said assessment against the lands of the Mobile & Ohio Railroad Company was overvalued to the amount of $12,778; that this overvaluation was because the board, in assessing certain lands of the Mobile & Ohio Railroad Company, had assessed them as timbered lands, when in fact they were cut-over lands, with little or no timber standing thereon (that a copy of said order of the board, denying said motion, is hereto attached as Exhibit B); that a reasonable taxable valuation of the cut-over land of the Mobile & Ohio Railroad Company in Wayne county is $2 per acre; that the board of supervisors, at its November, 1909, meeting, regarded this valuation correct, and still regards it as correct, and declined to enter the order only because it thought it had no legal right to do so; that the attached list of lands (Exhibit C) correctly described all of said cut-over land in the county of Wayne, state of Mississippi, and that a reasonable taxable valuation of said lands is $2 per acre; that said list of lands, marked Exhibit C, shows the assessment of each parcel of land as now shown by the tax roll of Wayne county, Miss., and shows the total of said assessment, and the total of what it should be, at $2 per acre, and that said assessment of lands should be reduced to the amount of $12,565, to conform to the true and correct taxable value of said lands; that the assessment of lands, as aforesaid, at the excessive valuation, was because the board of supervisors was mistaken in the nature and character of the lands so assessed, as shown in Exhibit C attached hereto, and at the time of the hearing of the application of the Mobile & Ohio Railroad Company, for a reduction of the assessment on said lands, $2 per acre, it became known to the board of supervisors that said lands were cut-over lands, instead of timbered lands, and hence it be ing of said assessment than at the time of making the aforesaid application for a reduction of said assessment; that is to say, there has been no change in the value of said lands since the making of said assessment. It is further agreed to be the fact that at the September term of the board of supervisors, at which term the taxes of the county were equalized, that the Mobile & Ohio Railroad Company had a representative of its land department before the board of supervisors during the whole session, but the board was not informed as to the character of the lands described in Exhibit C." The board of supervisors had approved the assessment at its September meeting as provided by sections 4297 and 4298 of the Code of 1906. Section 4312 of the Code is as follows: "In case of destruction or deterioration in value of any real estate by any casualty, or in case of overvaluation known to be such, or in case of clerical error in the assessment rolls, or in case of change of ownership after assessment, or in case of an increase of value by the erection of improvements, or on satisfactory evidence of such increase from other causes, the board of supervisors shall have power at any time, on the application of a party interested, or otherwise, to change the assessment so as to reduce or increase to the true value of the property, or to cause the taxes to be charged to the purchaser thereof. And in case of the reduction or increase of any assessment, the same shall be certified by the clerk of the board of supervisors to the auditor; but the board shall not, after the approval of the roll, change an assessment except in the cases enumerated." W. M. McAlister, Co. Atty., for appellant. Chas. M. Wright, for appellee. WHITFIELD, C. The petition filed by the appellee should have been granted by the board of supervisors. It is a plain case of overvaluation, known to be such, within the meaning of section 4312 of the Code of 1906. statement of facts in full, so as to show the The reporter is directed to set out the agreed exact case which we decide. PER CURIAM. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is affirmed. (99 Miss. 838) R. J. & H. B. DAVIS v. BELLOWS. (No. 14,770.) (Supreme Court of Mississippi. March 13, 1911. Suggestion of Error Overruled June 5, 1911.) came and was known to said board that the assessment of said lands was an overvaluation known to be such, under section 4312 of the Mississippi Code of 1906; that said lands were returned by the Mobile & Ohio Railroad Company at an amount less than the valuation appearing upon the assessment rolls, and that said lands were overassessed by the board of supervisors because of said board's mistaken idea of the character of LOGS AND LOGGING (§ 3*)-TIMBER CONTRACT said lands, as aforesaid, and that said lands Plaintiffs agreed to purchase all merchantwere worth no more at the time of the mak-able timber on defendant's land at a stumpage -EFFECT. rate, to pay on June 15, 1903, and quarterly (8) Here follows an agreement for the lease thereafter, for timber previously cut, and to re- of sawmill, etc. The term of this lease shall move all the timber by January 1, 1908. Defendant held $3,200 to pay for the last timber to be cut. Held, that the contract entitled plaintiffs to cut timber for five years, terminating January 1, 1908, at the rate agreed upon, but that they are liable only for the timber cut; defendant not being entitled to retain the $3,200 as a forfeit for failing to cut all the timber, though she could retain sufficient to pay for timber cut. (1) By and between R. J. Davis and H. B. Davis, hereinafter designated as parties of the first part, and Lucina G. Bellows, hereinafter designated as the party of the second part, with reference to sawmill, timber, etc., near Jackson, Miss. be from November 20, 1902, until January 1, 1908; but, as soon as all merchantable timber is removed and paid for as above specified, said parties may at their option at once terminate this lease. Buildings erected by said first party to be the property of said first party. (10-12) This is an agreement whereby the first party agrees to convey to the second party certain land in Tennessee for a consideration of $5,420. (13-15) These provisions apportion the purchase price as follows: $1,500 in payment of sawmill. $720 rent on buildings, etc. "$3,200 in payment of 2,560,000 feet of the last of the merchantable timber cut or uncut on premises above described. That is, said $3,200 cannot be used in payment of timber until all the merchantable timber as above specified is removed from premises above described, except 2,560,000 feet. When said parties of the first part consider that they are entitled to credit as above provided for, the parties to this contract shall have the stand ing timber estimated, either by themselves or by parties agreed upon, and this estimate shall be a basis of settlement as above agreed upon." (2) Stumpage.-Said parties of the first part agree to purchase of said party of the second part all merchantable timber on a certain tract of about 5,000 acres, more or less, lying adjacent to Seiger's Switch on Thereafter the appellants entered upon the the Illinois Central Railroad, being specific-land and began operating a sawmill, cutting ally described as follows: (3) Description of the property. (4) Said parties of the first part agree to pay for the said stumpage at the rate of $1.25 per M. Settlement and payment periods being as follows: June 15, 1903, said parties of the first part shall pay cash at the rate of $1.25 per M. for all timber sawed prior to said date; and every three months thereafter during the term of this agreement said parties of the first part shall pay cash for all timber sawed during said three months. (5) Said parties of the first part agree to remove or pay for, at above specified rate of $1.25 per M., all merchantable timber on above specified premises before January 1, 1908. (6) By the term "merchantable timber" is meant all pine and cypress scaling 10 inches or more at top and cutting two or more logs 16 feet long, and all hardwood scaling 16 inches or more at top and cutting two or more clear logs 12 feet long; but any timber of smaller size or inferior grade shall be included as "merchantable timber," if said parties. of the first part elect to cut such timber. (7) Sawmill and tools.-Said parties of the first part agree to purchase of said party of the second part a certain sawmill on above specified premises, including all log wagons, carts, trams, etc., that are used in connection with said mill, paying therefor the sum of $1,500, as below specified. and removing merchantable timber as provided for in the contract, and paid for same every three months as it was cut. Thereafter, upon the expiration of the contract, they were notified that it would terminate, and were advised by appellee that the $3,200 on deposit to pay for timber was forfeited, and that all of the standing merchantable timber which appellants had not cut during the term of the contract would be claimed as forfeited. Appellants then filed a bill in chancery, setting out the contract and the facts as detailed. The prayer of the bill is, first, that appellants be allowed to remove the merchantable timber and pay for same at the rate stipulated; and, second, if mistaken in that relief, then for a return to them of the $3,200 in the hands of appellee, which, according to appellants' contention, could not be retained by appellee except to be applied as a payment on merchantable timber actually cut and removed. The chancellor dismissed the bill and granted an appeal. Alexander & Alexander, for appellants. L. Brame and Ratcliff & Truly, for appellee. MAYES, C. J. After a most careful consideration of this record in all of its aspects, we reach the following conclusions: The contract between the parties gave appellants the right to cut all the merchantable timber on the land for a period of five years; ap GUICE v. EASTERLING et al. (No. 15,097.) WHITFIELD, C. On the facts shown in this record, the case should have gone to the jury under proper instructions as to the law. The court, therefore, erred in granting the peremptory instruction for the defendant. ed as the opinion of the court, and for the reaPER CURIAM. The above opinion is adoptsons therein set out the judgment is reversed and the cause remanded. SEALS V. CARLETON. (No. 14,871.) (Supreme Court of Mississippi. May 22, 1911. pellants to pay $1.25 per M. feet for all timber actually cut in that time, payments to be made on the dates named in the contract, and the right thus granted to terminate on January 1, 1908. By the contract appellants were only bound to pay for the timber actually cut by them during that time, after which they had no further rights in the premises. The $3,200 paid to appellee at the date of the contract constituted no payment for the timber, in the sense that it became absolutely the money of appellee, whether the appellants cut the timber or not; but it was left with her as a mere advance payment, or security, for timber which appellants expected to cut and pay for at the rate of $1.25 per M. feet, and which, if they did not cut, certainly obligated Mrs. Bellows to return the advance payment to them. In effect the contract is simply this: Appellee gave a five-year option to appellants on all merchantable timber on the lands, for which they agreed to pay her $1.25 per M. feet as they cut it. The appellants placed in appellee's hands $3,200 to be held by her during the continuance of the contract. If appellants cut all of the timber, as it was contemplated that they should do, but which the contract did not oblige them to do, then the $3,200 was to be absorbed by applying it as a payment on the last 2,560,000 feet of timber at $1.25 per M. feet. A calculation will show that the above number of feet at the rate specified will make exactly $3,200. If the contract expired before all the timber had been cut, appellee had the right to stop the cutting and put appellants off the premises, withholding so much of the $3,200 as it took PER CURIAM. The above opinion is adoptto pay for any timber that was cut and un-ed as the opinion of the court, and for the reapaid for at the time of the expiration of the below is reversed and remanded. sons therein indicated the judgment of the court contract, at the rate of $1.25 per M. feet. If appellants had paid all that was due at the date of the expiration of the contract, then the whole of the $3,200 should be returned to them; but appellee had no right to claim a forfeiture of the $3,200, or any part thereof. This case is reversed and remanded, with instruction to the trial court to have an accounting between appellants and appellee. If it shall appear that the appellants are due appellee any sum for timber cut by them before January 1, 1908, and not paid for, then the court shall decree that the appellee shall deduct so much from the $3,200 as is necessary to pay for the timber cut by appellants and not paid for, giving a decree in favor of appellants for the balance; and if it shall appear that appellants have paid all that they owe to appellee, then appellants shall have a decree for the whole sum, and the court shall make any sum found due appellants a charge on the timber in question. Reversed and remanded. Appeal from Circuit Court, Panola County; W. A. Roane, Judge. "To be officially_reported." Action between James Seals and J. S. Carleton, as administratrix. From a judgment for one party on a directed verdict, the other appeals. Reversed and remanded. Pearson, Eckles & Carothers, for appellant. L. F. Rainwater, for appellee. WHITFIELD, C. This case is controlled by the case of Bankston v. Coopwood, 55 South. 48. We decide nothing, except that under the authority of that case a peremptory instruction should not have been given. POWE V. STATE. (No. 15,136.) (Supreme Court of Mississippi. July 3, 1911.) Appeal from Circuit Court, Harrison County; T. H. Barrett, Judge. To be officially reported." Robert Powe was convicted of murder, and he appeals. Reversed, and remanded for new trial. W. H. Maybin, for appellant. Jas. R. McDowell, Asst. Atty. Gen., for the State. MAYES, C. J. This record has had repeated examination at our hands. It is impossible to escape the conviction that the case made by this record on the facts does not warrant a verdict of murder. A verdict of manslaughter was fully warranted; but we do not think, in any view of the testimony, a verdict of murder can be sustained. Looking at the case closely and carefully as a whole, and giving all the facts their due and proper weight, we find it impossible to affirm the judgment, within the principles of law applicable to them. the court below is reversed, and the cause reIt follows, therefore, that the judgment of manded for a new trial. (99 Miss. 851) CAFFEY et al. v. TINDALL et al. (No. 14,918.) (Supreme Court of Mississippi. June 26, 1911.) 1. WILLS (8 575*)-CONSTRUCTION-"ALL MY PROPERTY.' A devise of "all my property" is sufficient to include both real and personal property. [Ed. Note.-For other cases. see Wills, Cent. Dig. 1210; Dec. Dig. § 575.* here together. I am on my deathbed. I cannot recover. My father was always wanting to make a will and my father's will was that he wanted his brother's and sister's children to have all of his property. My father's wish is my will. I want my father's brother's and sister's children to have my property." The contest is over the personal property, For other definitions, see Words and Phrases, since real estate could not pass by nuncupavol. 1, pp. 312-335; vol. 8, pp. 7572, 7573.] tive will. The proponents offered to estab2 WILLS (§ 289*)—PROBATE-INSTRUCTIONS-lish this will by the witnesses above named, PRESUMPTIONS-KNOWLEDGE OF LAW. and the objectors introduced testimony attempting to impeach these witnesses. In a proceeding to probate an alleged nuncupative will, which purported to pass "all" of testator's property, it was error to charge that the law presumes conclusively, in absence of contrary evidence, that the alleged testator knew that real estate would not pass under a nuncupative will; his knowledge of that fact, as bearing on the probabilities of whether the will was made. being a fact to be proved by the evidence, as any other fact. [Ed. Note. For other cases, see Wills, Dec. Dig. § 289.*] 3. EVIDENCE (§ 65*)—PRESUMPTIONS-KNOWLEDGE OF LAW. The law presumes for some purposes that all persons know the law; but such presump tion is not available to supply a material fact in controversy. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 85; Dec. Dig. § 65.*] Appeal from Chancery Court, Montgomery County; I. T. Blount, Chancellor. Petition by Thos. A. Caffey and others against Henry Tindall and others for the probate of a will. From a decree dismissing the petition, proponents appeal. and remanded. Reversed One W. M. Caffey, a single man, died without living parents, brothers, or sisters, or children of brothers or sisters. At the time of his death, his nearest relatives, according to the law of descent and distribution, were his mother's brothers and sisters. Deceased was an epileptic, and subject to attacks of epilepsy for a number of years prior to his death. Except during these attacks, he seemed to be entirely sane and rational, and had proved to be a good business man. He had considerable real and personal estate, most of which had been inherited by him from his father; he being an only child. After his death, one of the appellees, an uncle on his mother's side, qualified as administrator of the estate, alleging that he had died without will. Issue being tendered, the court heard the testimony, submitted the case to a jury under instructions, and the jury found against the proponents, and the court accordingly dismissed their petition for probate. On appeal one of the errors assigned is the granting of instruction No. 20, asked by the de fendants, which is as follows: "The law presumes, and in the absence of evidence to the contrary, conclusively presumes, that Billy Caffey, if he was sane, knew that real estate would not pass under a nuncupative will." V. D. Rowe, Dunn & Thompson, and Flowers, Alexander & Whitfield, for appellants. Hill & Knox and Wm. C. McLean, for appellees. SMITH, J. [1] The alleged testator died seised and possessed of both real and personal property, all of which is necessarily included in the description, "all my property," contained in the alleged nuncupative will, and would pass thereby, were it lawful to devise realty by parol. At the request of contestants, the court charged the jury that "the law presumes, and, in the absence of evidence to the contrary, conclusively presumes, that Bill Caffey, if he was sane, knew that real estate would not pass under a nuncupative will." If the testator in fact knew that real property would not pass under a nuncupative will, it is hardly probable that he would have attempted to so devise such property, and consequently the jury, on account of this fact alone, would have been warranted in seriously doubting the making of the will at all. That the will attempted to pass real estate would be of no assistance to the jury in determining whether or not the will was made, if the testator in fact had no knowledge at all as to what property the law would permit to pass under it. Afterwards the appellants, who are his cousins on his father's side, being the descendants of his father's brothers and sisters, filed a petition in the chancery court for the [2, 3] In this connection, the knowledge or probate of what purported to be a nuncupa- want of knowledge on the part of testator is a tive will, made in the presence of a cousin, fact to be proven in the same manner that R. F. Caffey, and a negro servant, Manuel other facts are proven. The law does preCaffey, who called upon deceased, about a sume, for some purposes, that all persons week before his death, at the hotel. The know the law; but not for the purpose of purported will is in the following language: supplying evidence of a fact material to "It is providential that you and Manx are the controversy. Under this instruction, as *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |