Dibert v. Durham

Citations

• 116 Miss. 469
• 77 So. 311

Syllabus

<p>1. Judgment. Equitable Belief. Grounds. Defense not interposed.</p> <p>Where a corporation leased turpentine lands for two turpentine seasons; the lease providing that the lessee defendant shipuld be reimbursed at a fixed rate per cup for any land included in the contract of which the lessor might deprive him of possession and the lessor corporation assigned the rent notes to its secretary and general manager, who was the owner of practically, all of the capital stock of the lessor corporation and these notes on his death passed to his wife, who recovered judgment thereon. In .such case since any breach of the lessor’s agreement entitling the lessee to reimbursement occurred before judgment on the notes such judgment was conclusive, and execution thereon' could not be enjoined, there being no evidence of fraud, accident or mistakes.</p> <p>2. Same.</p> <p>In such case since the agreement for reimbursement was by the corporation, and not by the secretary and general manager, the lessee though deprived of turpentine privileges on a part of the lands, had no cause of action against the widow of the secretary, for the only cause of action which could have been asserted against the manager if living was one sounding in tort, based on trespass and no such action was maintained' against him in his lifetime or against his estate after his death.</p> <p>S. Execution. Injunction. Grounds.</p> <p>In such case where there was no fraud, accident or mistake in the execution of the written lease and no showing that the turpentine privileges were not worth the consideration agreed to be paid, the execution on a judgment on the rent notes in favor of the transferee will not be enjoined, because the lessee had a right of action for damages against the lessor, neither the lessor nor transferee being insolvent.</p>