Rives v. McNeil

Citations

• 127 Miss. 839
• 90 So. 595

Syllabus

<p>1. Cancellation of Instruments. Refusal to cancel deed zvhere defendant offered to quitclaim to complainant held error.</p> <p>Where complainant in a former suit procured a decree cancelling deed of another party to land, and where during the pendency of such suit the attorney for defendant took a deed absolute in form as security for his fee; and in suit to cancel the deed so takn offers in his answer > to quitclaim to complainant and disclaims ownership, the deed being of record, it was error for the court to refuse to cancel such deed.</p> <p>2. Election of Remedies. Proceeding to judgment against a third party for rent with knowledge that defendant collected rents and accounted to such party held an election to look to third party.</p> <p>Proceeding to judgment against a third party for rent with knowledge of all material facts as to defendant’s collector, of rents for use of such third party, and an accounting by defendant to third party for money so collected, constitutes an election, and binds complainant and estops him thereafter from proceeding against defendant. _Murphy V. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L. R. A. (N. S.) 785, 17 Ann. Cas. 611, cited.</p>