Opinion
No. 35427.
October 25, 1943.
APPEAL AND ERROR.
Where there was no material difference in meaning of phrase in recorded deed of trust, and original, the decision of Supreme Court on appeal involving recorded deed became "law of the case" in subsequent proceeding between same parties involving original.
APPEAL from chancery court of Tallahatchie county, HON. R.E. JACKSON, Chancellor.
Bell McBee and O.L. Kimbrough, all of Greenwood, and A.L. Whitten, of Sumner, for appellants.
There are many decisions of this court on the law of the case. In earlier times it seemed to have been taken as a "rule of law," and was rigidly adhered to. In more recent times the court has receded from its former position of rigidity and harshness and has adopted a sounder, more liberal and more just view.
The better rule, and that more in accord with justice, is that though ordinarily a question considered and determined on the appeal is deemed to be settled and not open to re-examination, on a second appeal, it is not an inflexible rule, and if the prior decision is palpably erroneous it is competent for the court to correct it on the second appeal.
Johnson v. Success Brick Machinery Co., 104 Miss. 217, 61 So. 178, 62 So. 4; Brewer v. Browning, 115 Miss. 358, 76 So. 267, 519, L.R.A. 1918F, 1185, Ann. Cas. 1918B, 1013; Missouri, K. T.R. Co. v. Merrill, 65 Kan. 436, 70 P. 358, 59 L.R.A. 711, 93 Am. St. Rep. 287; Ellison v. Georgia Elec. Co., 87 Ga. 691, 13 S.E. 809; 2 R.C.L. 226, Sec. 188; 3 Am. Jur., Appeal and Error, Secs. 986, 990.
It is our view and contention that the record now before the court, with respect to the question of the power of substitution of a trustee, is wholly different from the former record. If the court should now hold that there is no material differences between the present and the former record, the court should, nevertheless, disregard any supposed rule with respect to the law of the case and examine and pass upon the present record and reverse this cause. If an injustice has been done appellant such injustice should be remedied. There has been absolutely no change in respect to the parties so far as is disclosed by the record. Likewise, the rights of no third party have intervened.
We respectfully submit that by the unquestionable language of the deed of trust in respect to the appointment of a substituted trustee that this appellant was fully warranted, authorized, empowered and justified in making the substitution in the two deeds of trust under consideration and that, therefore, this court should reverse this cause and enter judgment here for appellant.
W.W. Venable, of Clarksdale, for appellee.
Appellee brought her suit to set aside a sale by a substituted trustee in a deed of trust on the ground that the sale was void, because there was no power in appellant to appoint a trustee at option, he being a natural person, under the terms and conditions of the deed of trust. Other relief was prayed for but is not material here.
The lower court sustained a demurrer to the bill to which copies of the deeds of trust as recorded had been attached as exhibits, holding that the power of appointment existed. This court reversed the lower court on appeal, holding that there was no such power and that consequently the sale by the substituted trustee was void. The case is reported under the style of Webb v. Biles, 192 Miss. 474, 6 So.2d 117.
After the case was remanded to the lower court for further proceedings, counsel for appellant stated that they had found the original instruments and that they differed in language from the instruments as recorded insofar as the provision dealing with the power of appointment of substituted trustees was concerned. They filed an answer and also a motion that correct copies of the original instruments be made exhibits to the bill of complaint in the stead of the copies of the instrument as recorded and that they be permitted to demur to the bill as thus amended.
Counsel for appellee consented to the course suggested, since it was but right that appellant should have opportunity to present the question whether the change in language affected the result that had been reached and it was advantageous to all concerned that this question be decided as soon as possible in the litigation.
The demurrer was presented to the court below and the court was of the opinion, after due consideration and hearing, that the difference in the language of the provision giving power to appoint substituted trustees at option as it appeared in the original instruments did not change or affect the meaning of the provision under the principles announced by this court in Webb v. Biles, 192 Miss. 474, 6 So.2d 117, and so entered an order overruling the demurrer. From this order, the present appeal is prosecuted. The correctness of the order presents the sole and only question on this appeal.
The question here presented has been decided in the former appeal.
Webb v. Biles, supra.
Dan C. Brewer, of Clarksdale, for appellee.
The order of the chancellor in overruling the demurrer was without error and founded on four well established rules, being: (1) The rule of strict construction of the powers contained in the instrument of creation, in the case at bar, the photostatic copies, with respect to the substitution of trustees; (2) The rule of stare decisis; (3) The rule of "Law of the case"; and (4) The rule as to ambiguities.
The right and power to make substitutions must be expressly conferred. If express authority is attempted, the instrument to be effective must express clearly and plainly the person by whom, and the circumstances under which, such authority may be exercised.
Guion v. Pickett, 42 Miss. 77; Clark v. Wilson, 53 Miss. 119; Sharpley v. Plant, 79 Miss. 175, 28 So. 799; McNeill v. Lee, 79 Miss. 455, 30 So. 821; Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285; Watson v. Perkins, 88 Miss. 64, 40 So. 643; Carey v. Fulmer, 74 Miss. 729, 21 So. 752; Hartley v. O'Brien, 70 Miss. 825, 13 So. 241; Jones v. Salmon, 128 Miss. 508, 91 So. 199; Powers v. Interstate Trust Banking Co., 163 Miss. 30, 139 So. 318; West v. Union Naval Stores Co., 117 Miss. 153, 77 So. 961; Bonner v. Lessley, 61 Miss. 392; Webb v. Biles, 192 Miss. 474, 6 So.2d 117; Bradford v. Belfield, 2 Sim. 264; Hill on Trustees, Secs. 183, 189; Sugden on Powers, Sec. 145.
See also Manners v. Morosco, 258 F. 557, 560, reversed on other grounds 252 U.S. 317, 64 L.Ed. 590; Hickman v. Cabot, 183 F. 747; Lindeke Land Co. v. Kalman, 93 A.L.R. 1393; Hines v. Masonic Mutual Ins. Co. (Ala.), 110 So. 133; Seiler v. State, 160 Ind. 605, 65 N.E. 922, 66 N.E. 946, 67 N.E. 448; Wartensleben v. Hathcock, 80 Ala. 565, 1 So. 38; Am. Ins. Co. v. Bean, 232 Ky. 111, 22 S.W.2d 426; Town of Oak Bluffs v. Cottage City Water Co., 235 Mass. 18, 126 N.E. 384; Perry v. Mott Iron Works Co., 207 Mass. 501, 93 N.E. 798; Baylor v. Hall, 106 Neb. 786, 184 N.W. 886; Wussow v. State, 222 Wis. 118, 267 N.W. 56; Charrette v. Prudential Life Ins. Co., 202 Wis. 470, 232 N.W. 848; Ames v. Am. Nat'l Bank of Portsmouth, 163 Va. 1, 176 S.E. 204-216; Winship v. Wilkes, 128 Cal.App. 44, 8 P.2d 502; Swigert v. Miles, 75 Ind. App. 85, 130 N.E. 130; 13 C.J. 537, Sec. 500; 17 C.J.S. 730, Sec. 312.
We submit that the parties are bound by the decision on the first appeal, unless in the light of after developed facts, creating an issue not adjudicated, or that was not within the power of the parties to have submitted for adjudication, and therefore could not have been adjudicated, and provided the first decision was a palpable mistake, or worked a grave injustice upon one of the parties.
It is quite true and conducive to justice that few courts will refuse to right a palpable wrong. Not every decision is, or ought to be, considered inflexible, the law of the case. But in the ordinary administration of justice, and tending to end litigation, courts are not prone to set aside well considered adjudications.
Pennington v. Purcell, 155 Miss. 554, 125 So. 79; Reed v. Norman-Breaux Lumber Co., 149 Miss. 395, 115 So. 724; Kellogg v. King, 114 Miss. 375, 75 So. 134; Supreme Lodge K.P. v. Hines, 109 Miss. 500, 68 So. 485; Payne v. McNeeley, 123 Miss. 248, 85 So. 197; Brewer v. Browning, 115 Miss. 358, 76 So. 267; Fisher v. Browning, 107 Miss. 729, 66 So. 132; Adams v. Adams, 102 Miss. 259, 59 So. 84; Johnson v. Success Brick Machinery Co., 104 Miss. 217, 61 So. 178, 62 So. 4; True-Hixon Lumber Co. v. Thorn, 171 Miss. 783, 158 So. 909; Travelers' Ins. Co. v. Inman, 167 Miss. 288, 147 So. 663; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Dean v. Board of Supervisors of DeSoto County, 135 Miss. 268, 99 So. 563, 120 Miss. 334, 82 So. 257; Lawson v. Shotwell, 27 Miss. 630; Stewart v. Stebbins, 30 Miss. 66; Moody v. Harper, 38 Miss. 599; Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200; Bridgeforth v. Gray, 39 Miss. 136; Martin v. Lofland, 10 Smedes M. 317; Messenger v. Anderson, 225 U.S. 436, 56 L.Ed. 1152; Claiborne-Reno Co. v. Dupont, etc., Co., 77 F.2d 565; In re Johnson's Will, 178 Wis. 620, 190 N.W. 434; Ruttle v. What Cheer Coal Min. Co., 161 Mich. 150, 125 N.W. 787; Sowders v. Coleman (Ky.), 4 S.W.2d 731; Great West Tel. Co. v. Burnham, 162 U.S. 339, 40 L.Ed. 991; Sutherland v. Friedenbloom (Tex.), 200 S.W. 1099; Cromwell v. County of Sac, 94 U.S. 351; Rudolph Wurlitzer Co. v. Rossman (Mo.), 190 S.W. 636; Atty. Gen. v. Cont. L. Ins. Co., 71 N.Y. 325; Stone v. So. Ill., etc., Bridge Co., 206 U.S. 267, 51 L.Ed. 1057; New York Mut. Life Ins. Co. v. Hill, 193 U.S. 551, 48 L.Ed. 788; Chamberlain v. Browning, 177 U.S. 605, 44 L.Ed. 906; Coombs v. Rice (Fla.), 67 So. 143; Pervis v. Fink (Fla.), 54 So. 862; Hillsboro Grocery Co. v. Lehman (Fla.), 56 So. 684; Maryland Fidelity Co. v. Aultman (Fla.), 55 So. 273; Belskis v. Coal Co., 246 Ill. 62, 65; Benton v. St. Louis, 248 Mo. 98; Livingston v. Allen, 87 Mo. App. 179; Friedman v. Murphy, 14 Ariz. 42; Warner v. Grayson, 50 L.Ed. 470; Hunter v. Porter, 10 Idaho, 72; Wine v. Woods, 158 Ind. 388; Brunson v. Henry, 152 Ind. 310; Graham v. Chicago, etc., R. Co., 143 Iowa, 604; Ward v. Haren, 183 Mo. App. 569; Hoverstock v. Rogers, 177 Mo. App. 446; Finlen v. Heinz, 32 Mont. 354; Sweeny v. Mont. Cent. R. Co., 25 Mont. 159; Harriman Irr. Co. v. Keel, 25 Utah, 96; St. Louis, etc., R. Co. v. Hardy (Okla.), 146 P. 38; McCloud v. Moran, 11 Cal.App. 622; Christopher v. Mungen, 61 Fla. 513, 534, 55 So. 273; 4 C.J. 1096, Note 92; 15 C.J. 915, Sec. 297; 5 C.J.S. 1267, Sec. 1821; 5 C.J.S. 1279, Sec. 1825; 5 C.J.S. 1282, 1283, Sec. 1827; 3 Am. Jur. 542, Note 6; 3 Am. Jur. 544, Sec. 896.
As to the question of ambiguity, we deem the rule that ambiguities will be held against the power, against the person for whose benefit the power is exercised, so well established as to require no citation of authorities.
Argued orally by O.L. Kimbrough, for appellants, and by Dan C. Brewer and W.W. Venable, for appellee.
Upon the former appeal of this case, we reversed the decision of the chancery court which had sustained a general demurrer to the bill of complaint filed by the appellee herein, Mrs. Margaret T. Webb, to set aside the sale of lands made by a substituted trustee in deeds of trust executed by said appellee and her husband, Lewis D. Webb, in favor of the Federal Land Bank of New Orleans, Louisiana, and the cause was remanded for further hearing on the ground that the appointment of the substituted trustee who made the sales was made by the appellant herein J.D. Biles as an individual holder by assignment of the indebtedness secured by the deeds of trust, and that such substitutions were unauthorized and void. Thereafter, it developed upon a consideration of the cause on remand that the copies made of the deeds of trust as they appeared of record, and which were made exhibits to the bill of complaint, they being identical in form, were erroneous in that some of the words contained in the clause of the original deeds of trust providing for the appointment of a substituted trustee had been omitted in the recordation of the deed of trust from which the copies had been taken. When this fact was called to the attention of the complainants upon presentations of the original instruments by the defendants, it was agreed that photostatic copies of the original deeds of trust should be filed and considered as exhibits to the bill at the hearing on another demurrer then interposed to the pleading as thus amended. Thereupon, the court below overruled the demurrer to the amended bill of complaint and granted unto the appellants this appeal.
The clause of the deeds of trust providing for the appointment of a substituted trustee as considered on the former appeal is set forth in full in the second paragraph of the opinion of the court whereby the case of Webb v. Biles et al., 192 Miss. 474, 6 So.2d 117, 118, was reversed and remanded. This clause, as it now appears in the exhibits to the bill of complaint, reads as follows: "The said Bank, or any holder of said indebtedness if a person, acting personally; if a corporation, acting by and through either its president, vice-president, or secretary, or other managing authority, is hereby fully authorized and empowered to appoint another and succeeding trustee in the place of the said above named Trustee or his successors, if for any cause the Trustee in this instrument, or his successors, shall not be present, able and willing to execute this trust; or if for any reason the Bank or the said holder or holders acting through described officers, or any one of them, shall so desire, and such appointees shall have full power as Trustee herein."
It is alleged in the bill of complaint that the original trustee named in the deeds of trust was present, able and willing to act at the time of the attempted appointment of the substituted trustee by the said J.D. Biles, and there is no recital contained in the instrument whereby the substitution of the trustee was undertaken to be made by him to the effect that the original trustee was not present, able and willing to act at the time of the execution of the instrument whereby the trustee who made the sales was appointed.
On the former appeal, the court stated in its opinion that the specific question to be decided "is whether the phrase `or if for any reason, said holders acting by and through the above described officers, or any one of them, should so desire,' confers upon an individual the power to substitute a trustee at his option, or whether that phrase limits that right to corporate holders."
The question now is whether the phrase "or if for any reason the bank or the said holder or holders acting through described officers, or any one of them, shall so desire" authorizes a substituted trustee to be appointed by an individual holder of the indebtedness thereby secured.
We are of the opinion that there is no material difference in the meaning of the phrase as quoted in the former opinion and as last above quoted, in the light of what precedes this phrase in the clause providing for such appointment; that, therefore, the decision in the case of Webb v. Biles, supra, is the law of the case. Under the opinion then rendered, it was held in effect that the authority for the substitution of a trustee must express clearly and plainly the person by whom, and the circumstances under which, such authority may be exercised, and that all ambiguities are to be resolved against the person for whose benefit the power is granted, and who undertakes to exercise it, and that the grant of such power will be strictly construed. The authorities in support of this view were reviewed in the former opinion. The court then held that the words "acting by and through the above described officers, or any of them" described the character of holders who possessed the option to appoint, that "if we include individuals under the word `holders', we must strike from the instrument the words `acting by and through the above described officers, or any one of them,'" and the Court further said that "it is argued with much force by appellees that the word `holders,' being in the plural, refers back and includes, both individual and corporate holders," and then observed that "the answer to that could be that the bank might transfer and assign the indebtedness and security to another corporation, as no doubt in the history of this institution has often happened." Applying this reasoning of the court in its former opinion to the case as now presented, it can be said with equal force that the bank might transfer the indebtedness to one or more corporate holders, and that the words now appearing in this clause in the exhibits "or the said holder" would have reference to an individual corporate holder, acting through described officers, to-wit: "Its president, vice-president, or secretary, or other managing authority," being those mentioned in that part of the clause authorizing the appointment of a substituted trustee in the event the original trustee is not present, willing and able to act which precedes the authority conferred upon "the bank or the said holder or holders acting through described officers," to appoint a substituted trustee at will whether the original trustee be present, able and willing to act or not. We make these observations in support of our view that supplying the additional words "the bank or" and the word "holder," wherein the instrument authorizes the appointment of a substituted trustee at will, has not materially changed the meaning of the phrase as considered on the former appeal.
Unless the former decision herein should be overruled, and which we do not think should be done, we are bound by it as the law of the case, and for that reason, if for no other, the judgment of the court below in overruling the demurrer to the bill of complaint as now presented must be affirmed and the cause remanded.
Affirmed and remanded.