Wirtz v. Gordon , 187 Miss. 866 ( 1938 )

DISSENTING OPINION. I am wholly unable to agree with the opinion in this case; I think the opinion of the majority will create considerable confusion in matters involving estates and mortgages or deeds of trust. The proceedings set up in this case to bar the complainant's right to a partition of the lands cannot, in my judgment, be properly entertained for that purpose. The bill filed by Ann F. Gordon simply sought a partition of lands owned by her father at the time of his death, which were encumbered by a deed of trust executed by her father and mother upon the lands described. Her father had made a will, constituting his wife executor and testamentary guardian of his two minor daughters, one of whom was the complainant, Ann Faison Gordon, who at the time of the said foreclosure proceedings of the deed of trust was a minor, her mother being her guardian and also the executor of the estate of the minor's father; she had qualified as such executor, and probated claims in excess of the $10,000 probated against the estate of E.H. Faison, deceased.

It will be necesary to set forth the terms of the will, and the allegations of the bill filed by the complainant, Ann F. Gordon (nee Faison), and pertinent provisions of the deed of trust, and the nature of the proceedings by which the deed of trust was attempted to be foreclosed in chancery. The will reads as follows:

"I, E.H. Faison, over the age of twenty-one years, of sound and disposing mind and memory but knowing the uncertainty of human life, do hereby make, declare and publish this my last will and testament.

Item One. It is my desire my just debts, including the expenses of my last illness and burial, be paid by my executrix, hereinafter named, without resort to the courts, if possible.

"Item Two. I give, devise and bequeath to my wife, and children, living at my death, share and share alike, all of my property real, personal and mixed, in possession and expectancy and wheresoever situate, subject to the conditions hereinafter mentioned.

"Item Three. I direct that all of the property, herein devised, be held and used by my said wife and children in common, unless or until my said wife shall marry, or one or more of my children shall become of age, or marry, upon the following express terms and conditions, viz.:

"a. Should my wife marry then I direct that the property herein devised, shall be partitioned and the share of my wife and children set aside and allotted to each of them, respectively.

"b. Should any of my children become of age, or marry, then the share of such child in and to the property, herein devised, shall be allotted and set apart to such child, and this process continue until such child shall become of age, or marry. If, however, my wife should marry before the share of each child shall be allotted and set aside, as herein provided, the said property shall be partitioned, allotted and set aside to each, as provided in subdivision a, above.

"c. In the event the property, herein devised, shall be allotted and set aside to my children, as herein provided, the property, thus set aside and allotted to each of them, shall be freed from the control of the other devisees herein, as well as the provisions of this last will and testament.

"d. In making the partition and allotment, as herein provided, I prefer that the property set aside and allotted to each child, as such child's respective share of the property, herein devised, be unencumbered real property, if the same can be done without detriment to the interest of all parties concerned.

"Item Four. I hereby appoint my said wife, Gertrude H. Faison, executrix of this my last will and testament, and expressly provide that she shall not be required to give bond as such, or account to any court whatever for her actions in the premises.

"Item Five. So long as my said wife shall remain unmarried, and not afterwards, I hereby expressly confer on her, as executrix, as to any and all of the property devised, the following powers, as to which she, and she only, is vested with full and complete direction both as to the construction and exercise thereof, to-wit:

"a. To use any and all money, from whatever source derived, for the support and maintenance and education of herself and children.

"b. To rent, operate or cultivate all or any part of the lands herein devised, by such method and manner as she may deem best, and use the proceeds thereof for any purpose she thinks proper, though I trust that she will, at all times keep on hand sufficient money for all emergencies.

"c. To sell and convey, by warranty deed or otherwise, any land that she may think necessary to pay off and discharge any indebtedness constituting a lien on all or any part thereof, or any other purpose.

"d. To borrow money for the purpose of discharging any indebtedness, constituting a lien on any of the property herein devised, to operate and cultivate the plantation, or in fact for any purpose she deems advisable, execute note or notes evidencing the amount or amounts thus borrowed, and secure the payment thereof by executing a mortgage, deed of trust or other contracts on all or any part of the property, herein devised, real, personal and mixed.

"3. Any deed, mortgage, deed of trust or other contract, affecting the title to all or any part of the property, herein devised, executed by my said wife, as executrix, shall be held and deemed as conclusive evidence that this last will and testament vested in her full and complete power to execute the same, and the property affected thereby shall be fully bound to the same extent as if legal title thereto had been vested in her.

"Item Six. In making this last will and testament it is my sole purpose to fully protect, as far as possible, my beloved wife and children, and I fully trust her to carry out my intent, in letter and spirit, as herein expressed.

"In testimony whereof, I hereby make, declare and publish this as my last will and testament in the presence of C.C. Moody and J.L. Williams who, at my request and in my presence, have attested the same as witnesses, hereto, and in whose presence I have also subscribed the same, this the 9th day of July, A.D., 1921."

The bill filed by the complainant, Ann F. Gordon, set up that E.H. Faison executed the above will and testament on the 9th day of July, 1921, and that he died on the 11th day of November, 1926; that the said will was admitted to probate on the 16th day of November, 1926, and was duly recorded in the will book of Sunflower county; that by said will the lands mentioned in the bill were devised to Gertrude H. Faison, wife of E.H. Faison, now his widow, and to the complainant, Ann F. Gordon, and to Edmund Gertrude Faison, his children; that thereby they were vested with and undivided one-third interest in such lands, as tenants in common; that the complainant was born on the 28th day of September, 1912, and Edmund Gertrude Faison, the defendant, was born on June 26th, 1916; that thereafter, about the 15th day of April, 1933, while the complainant and the defendant, Edmund Gertrude Faison, were still minors, the defendant, Arthur M. Wirtz, together with one, Herman Hachmeister trustee, filed a bill of complainant in the chancery court, giving the style and number of the bill, and a copy thereof, with the proceedings thereunder, as exhibit to the bill herein filed. It was therein averred that although this complainant and the defendant, Edmund Gertrude Faison, were named as parties to the said bill of complaint, yet the complainant states and charges that she and Edmund Gertrude Faison were not made parties defendant to the said bill of complainant by any process emanating from the chancery court; which court acquired no jurisdiction of the complainant herein, or of Edmund Gertrude Faison, her minor sister; and that all of the proceedings in the said suit attempting to foreclose the mortgage, so far as concerns the complainant and the said Edmund Gertrude Faison, are null and void; and that as to them Wirtz did not acquire title to the lands described in the bill, and it is only by virtue of the proceedings in the suit that he has or claims any interest in the land.

It is then alleged that the complainant is not informed as to whether by virtue of the proceedings had in the said suit to foreclose, Arthur M. Wirtz acquired title to the lands described as against the defendant, Gertrude H. Faison, and asks to have this question adjudicated by this Court.

It is alleged, however, that by virtue of the proceedings had in said cause, Wirtz took possession of the lands involved on or about the first day of January, 1934, and since that date has continued in possession thereof, receiving all of the rents, issues and profits arising therefrom; and that by virtue of the said proceedings, and the assertion of title thereunder by Wirtz, a cloud, doubt and suspicion is cast upon the title of complainant to said lands, which she is entitled to have cancelled and annulled by the court.

It was then alleged that Wirtz executed the deed of trust to one Robert Hanley, wherein F.E. Everett was made trustee, which deed of trust was described as to date and record, and it is alleged that the said deed of trust undertook to convey the lands described in the bill, to secure a certain indebtedness mentioned in the said deed of trust; that so far as the complainant is concerned, the said deed of trust is a nullity, and the same is true as to Edmund Gertrude Faison, and did not have the effect of vesting the title to said lands in Everett as trustee, but that their lands remained unaffected by the execution of the said deed of trust; but that its execution had the effect of causing a cloud, doubt or suspicion on the title of complainant and Edmund Gertrude Faison; that the complainant is not informed as to whether the rights of the defendant, Gertrude H. Faison, are affected thereby; and now asks that the questions be adjudicated by this Court.

It is alleged that the complainant and Edmund Gertrude Faison are each entitled to a one-third interest in the said lands, as tenants in common with Arthur M. Wirtz, provided said Wirtz, by virtue of the proceedings above mentioned, to foreclose, acquire title to the interest of said Gertrude H. Faison in and to the land; and if not, then the complainant and Edmund Gertrude Faison are tenants in common with Gertrude H. Faison; and adjudication of the rights as between Arthur M. Wirtz and Gertrude H. Faison as to the lands embraced in the bill is prayed.

The deed of trust was given by Edmund H. Faison and Gertrude H. Faison on the lands in the bill, to secure bonds issued upon the said lands in the sum of $84,000. It was provided in the deed of trust that all of the holders of the bonds secured by the deed of trust should share equally and have equal rights in the security for the payment of the bonds; and on the face of the bonds themselves it was provided to the same effect, that "the bonds are issued under and equally secured by deed of trust of even date herewith, made by Edmund H. Faison and Gertrude H. Faison, his wife, parties of the first part, to Charles Foreman Company, of Chicago, Illinois, as trustees."

It provided also, that the grantors in the deed of trust should remain in possession until default was made, and should have the right to prosecute and defend in their own name any suit necessary to enforce their right to possession and enjoyment of the property therein conveyed as against third parties, or for the enforcement of any of their rights and claims in regard thereto.

It is then provided in article 5 of the deed of trust that in case of default in payment when due of interest on any bond secured and outstanding, and such default shall contiue for one month, or in case default shall be made in the payment of the principal of any of the said bonds, as and when they shall become due according to their tenor and effect; or in case of default in the performance of any other covenant or condition thereof continuously for one month, "then the whole of the indebtedness secured hereby, may, at the option of the holders of one-quarter in amount of the bonds outstanding, and without notice to the said parties of the first part be declared due and payable and on written request of such holders of bonds the trustee shall declare the principal of all the outstanding bonds due immediately, together with all the interest accrued thereon;" and the trustee may proceed to enforce the trust deed as thereinafter provided, or at his option institute proceedings for an action at law or in equity for such amounts as may then be unpaid, or may enforce payment thereof by said remedy, if desired. That if any such default as is mentioned in section 1 of the article occurs, the trustee, upon request in writing by the legal holder or holders of a majority in amount of the bonds, outstanding and unpaid, if lawful under the statutes of Mississippi, after public notice of time and place by advertisement, etc., may sell the said lands. It is further provided that in either of the defaults mentioned, the trustee, on request in writing of the majority of the holders of the bonds still outstanding and unpaid, may foreclose the equity of redemption of the estate and property conveyed by judicial proceedings, etc.

Default having occurred in payment of taxes, the lands were advertised for taxes; and on April 6, 1931, the entire body of land, embraced in the deed of trust, was sold to individuals for the 1930 taxes; in April, 1932 they were again sold for the 1931 taxes, to the state of Mississippi. The period of redemption from the tax sale of 1930 was to expire on April 6, 1933, and the amount required for redemption from such sale was $3,681.93. The executrix, Mrs. Gertrude H. Faison, tried to raise the money for the redemption of the said lands, but was unable to do so; and the tax titles to the individuals were about to mature on April 6, 1933, in which event the adults would be divested of their right, title and interest in and to the land; but the minors, the complainant and her sister, would have had two years from the date of their respectively reaching the age of 21 years to redeem the same.

In this situation L.M. Watson, of Chicago, representing some of the bondholders, arrived at Indianola on January 29, 1933, to investigate the tax situation. He had a conference with the executrix, Mrs. Gertrude H. Faison, and learned that she had not succeeded in raising the money with which to redeem the lands. Mrs. Faison made other efforts to secure the money, which failed. Louis M. Watson induced Arthur M. Wirtz to go to Indianola to inspect the plantation and determine whether he would supply the necessary funds to prevent ripening of title in the tax purchasers. Watson and Wirtz went to Indianola about the first of April, 1933, made the investigation of the plantation and situation, and thereafter had a meeting with Gertrude H. Faison. Watson claimed to represent the bondholders, or some of them; and after considerable discussion it was agreed by Gertrude H. Faison and by Wirtz and Watson that she would consent to a foreclosure for the purpose of divesting the interest of her minor daughters in said lands; and upon filing of the foreclosure bill she would enter her appearance individually, and as executrix of the estate of Edmund H. Faison and as guardian ad litem, the appearance of her minor daughters; and that as such executrix she would assist in every way possible in expediting and effecting the foreclosure.

Wirtz agreed to redeem the lands from the 1931 tax sale, and also from the 1932 tax sale for 1931 taxes, and to buy at the foreclosure sale as cheaply as possible; and that if he became the purchaser, to furnish the said executrix with sufficient funds to complete the crop already planted on said lands. He further agreed to sell the said lands to the executrix, provided she could raise the money to pay therefor before the expiration of the year 1933, the amount due Wirtz understood to be approximately $21,000.00, covering the bonds bought by Wirtz, the redemption from the tax sale to be included and rent for the intervening period to be paid by her to Wirtz. She was to go through bankruptcy, to enable her to safely take title. But if Gertrude H. Faison, individually or as executrix, could not raise the money to pay taxes and the $21,000 bonds during the remainder of the year, she was to deliver possession of the said lands to Wirtz. It was agreed to cause foreclosure proceedings to be filed on behalf of the bondholders.

A witness, discussing the agreement then reached, said, among other things. "We discussed the advisability of Mrs. Faison executing a deed as executrix of the estate, and I advised them she couldn't execute a good deed to the property for the reason that the estate was shown to be in debt, and that the probated claims were a lien on the property, and that these second and third mortgages on the property were there, and these things couldn't be eliminated, if she was giving a deed to it". Mrs. Faison wanted some additional money, that Mr. Wirtz told her he would let her have, if he became the purchaser of the lands — and it was necessary to act as rapidly as possible in order that she might get the funds to complete her crop with. Mrs. Faison was to be appointed guardian ad litem of the children, to enter their appearance for herself individually, and as executrix of the estate, and as guardian ad litem for the children — she to assist in every way possible to expedite the foreclosure. The land to be bid in by Mr. Wirtz, at the least possible bid — Mrs. Faison to take bankruptcy, so as to be able to take title back, if necessary money raised by 1/1/34. If not, then Mr. Wirtz to have property at that time.

The bill was filed in the chancery court, seeking a foreclosure of the deed of trust in that court under judicial proceedings, and Mrs. Gertrude H. Faison waived process for herself, both personally and as executrix; and undertook to waive process on behalf of the minors, both as to herself as guardian, and the minors personally. She was appointed guardian ad litem by the court. When the cause came on for hearing the court entered a decree pro confesso as to all the defendants, including the minors, and directed the land to be sold.

There was, in fact, no process served upon the minors personally, nor upon the guardian; but as stated, the guardian undertook to waive such process. The court entered a decree, directing the sale, appointing a commissioner to make it — describing the lands to be sold — and directing the commissioner to give notice of the sale, and to report his action to the court for confirmation. In advertising the land for sale, there was omitted from the lands described a portion of the lands embraced in the decree and in the deed of trust. This being discovered after the lands were sold, on application therefor, the court undertook to reform the proceedings without reselling the lands.

At this sale which was made by a commissioner appointed by the court (not by Mrs. Gertrude H. Faison), Arthur M. Wirtz bid for the lands in the sum of $5,000. There being no other bids, the lands were struck off to him, and the chancellor confirmed the sale as stated, without having the minors served with process, as required by statute.

The bill filed by Ann F. Gordon does not undertake to cancel, or affect, the mortgage itself, given by her father and mother to secure the bond issue above described. It merely attacked the foreclosure proceedings, or rather prayed for a cancellation of the foreclosure proceedings, and trustee's deed, as a cloud upon her title, and sought to have the question determined by the court in regard to the ownership of the one-third interest that under the will was devised to Gertrude H. Faison; and to have an accounting by Wirtz for the use and occupancy of the premises by him.

The bill in the original proceeding to foreclose the deed of trust nowhere relied upon the power of sale conferred by the will upon Gertrude H. Faison; the will was only mentioned in that bill for the purpose of showing that Mrs. Gertrude H. Faison had executed other encumbrances upon the property under the will. It was in no sense a sale by Gertrude H. Faison — in fact, she was made a defendant therein, and treated as an adverse party in interest to the bill and to the complainants therein. The sale was not made by Gertrude H. Faison under the decree of court attempting to foreclose the mortgage, but by a commissioner appointed by the court. The right of the complainant, Ann Faison Gordon, to file a bill or petition, accrued when she arrived at the age of twenty-one, or when she married. At the time of the filing of this bill she was twenty-one years of age and married. Her right of possession had not accrued, so far as the right to separate possession is concerned, when Wirtz went into possession of the land. Consequently she had a right, under Section 2920, Code of 1930 to a partition of the property, and her interest set apart to her, and an accounting for the rents and profits of the place for the period of Wirtz' occupancy. This she had a right to do without a tender of the debt. See Johns v. Smith, 56 Miss. 727, and other cases hereinafter cited.

The existence of the encumbrances on the land did not affect her right to have her land set apart to her, and to an accounting for the profits received by Wirtz during his occupancy; all these rights could be settled in the partition proceedings under section 2923, Code of 1930, which reads as follows: "If the title of the complainants seeking partition of sale of land, for a division shall be controverted, it shall not be necessary for the court to dismiss the bill but the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands whereof partition is sought and to apportion encumbrances, if partition be made of land encumbered and it be deemed proper to do so; and the court may adjust the equities between and determine all claims of the several co-tenants as well as the equities and claims of encumbrancers."

Encumbrancers on land will not prevent partition. Doran v. Beale, 106 Miss. 305, 63 So. 647. Nor does the fact that the estate is being administered, and that there are probated claims against it, affect the rights of one of the tenants in common. Garrett et al. v. Colvin et al., 77 Miss. 408, 26 So. 963. The complainant, therefore, had a right to file a suit, and have the partition made, so that she could severally occupy a part of the land. It is immaterial that there were liens or probated claims against her interest, and that it might be taken from her by foreclosure. When her right to her property, and the equity between her and Wirtz had been settled, she had the power (if she could procure it) to use the property in securing money with which to discharge these encumbrances, or to make arrangements with the encumbrancers to extend the time within which that could be done, or to take care of the obligation in any way known to the law.

In what I shall say in this opinion by way of criticism of the transaction at the time of the attempted foreclosure, and agreement in reference thereto, and all the proceedings therein is said because the parties were not on qual terms. Mrs. Faison had but little option except to accept any terms offered her. It is necessary to discuss the matter in order that the rights of the parties may appear, and that my view of the law should be understood. Mrs. Faison and the attorney, and others interested as junior mortgagees, were interested in having property sold for taxes redeemed; and they were in desperate straits in regard to procuring money, since the financial state of the country at that period was at its worst, with many financial institutions closed, and many persons had lost their property.

As stated in the bill filed by the complainant, and as shown by the undisputed proof, including the court records, she was never served with any process to defend that suit in the manner required by law. The manner in which process shall be served on an infant defendant or cross-defendant, is described by section 2982, Code of 1930, which reads as follows: "If the defendant be an unmarried infant, the process shall be served on him personally, and upon his father or mother or guardian, if he have any in this state; but if he be married, process may be served as on an adult. If an unmarried infant be joined as codefendant with his father or mother, or guardian, it shall not be sufficient to summon such infant and his father, or such infant and his mother, or such infant and his guardian, in one process, but one copy of the process shall be served on the infant personally and a copy served personally on such father or mother or guardian."

It has been held in a number of cases that the statute must be complied with strictly, or else the court does not have jurisdiction over the defendant. The complainant herein was a minor at the time; and while process was issued by the clerk, it was not served by the sheriff, but, as stated, was delivered to an attorney; and Mrs. Gertrude H. Faison undertook to accept the service and enter appearance for the minors — which she could not do under any circumstances. No jurisdiction can be had of a minor's person or property except by service of process in the statutory manner. Parker v. Smith et al., 150 Miss. 849,117 So. 249. Under the section of the Code above mentioned it has been held that a decree against an infant is absolutely void unless it is shown affirmatively that process was served upon the mother, father, or guardian, as part of the service on the infant — or that he had none in the State. Gibson v. Currier, 83 Miss. 234, 35 So. 315, 102 Am. St. Rep. 442. This case overrules on this point McIlvoy v. Alsop, 45 Miss. 365. See also, Jones v. Mathews et al. (Miss.), 4 So. 547, not reported in State reports.

If an infant is not legally served with process, as provided by law, appearance by attorney will not bind him. This statute applies in court proceedings where property is involved. See Moore v. Allen, 72 Miss. 273, 16 So. 600. A guardian's appearance is insufficient, unless the minors are made parties and brought into court by citation served upon them. Kennedy v. Gaines,51 Miss. 625. It has also been held that where a guardian petitions to have lands sold, a guardian ad litem may be appointed by the probate court to represent their interest; and if this is not done the sale will be void. Such guardians ad litem cannot be appointed until process has been served upon them. McAllister v. Moye, 30 Miss. 258; Wade v. Bridewell, 38 Miss. 420; Kennedy v. Gaines, 51 Miss. 625; Burrus v. Burrus, 56 Miss. 92; Johnson v. Cooper, 56 Miss. 608. A decree of the probate court for the sale of land of a decedent, rendered upon petition of a guardian, without his ward's having been cited, or a guardian ad litem having been appointed, is void. Rule v. Broach, 58 Miss. 552.

A chancellor cannot appoint a guardian ad litem for a minor, to conduct a litigation, until the minor has been brought into court. The court acquires no jurisdiction of minors, to do anything in their behalf, until it has jurisdiction in the way provided by the statute.

The bill having been filed against Mrs. Gertrude H. Faison, the minor defendants, and others, by Wirtz and Hachmeister, the proceeding cannot be held to be the act of Mrs. Faison. Consequently the cases of Preston v. Safe Deposit Trust Co.,116 Md. 211, 81 A. 523, Ann. Cas. 1913C, 975; Yates v. Clark,56 Miss. 212; Baird v. Boucher, 60 Miss. 326, and Hammett v. Markham, 128 Miss. 39, 90 So. 848, are not applicable. Furthermore the rule is not applicable where the rights of creditors are involved and the estate is liable for such debts. See Code 1930, Section 1691.

In the Maryland case, above cited, the action was attempted to be brought in accordance with the statutes of that state, but did not comply therewith; however, the proceedings being by the trustee, the court held that they would be validated under the power of the will authorizing such parties to make the sale. In this state the general rule as to such powers is that they are strictly construed, and must be strictly complied with; that when powers are named in an instrument, it will not be held to include powers not named therein, and which are not absolutely necessary to carry out powers which are named. Or, on the other hand, if powers are prohibited specifically, only those specifically named will be held to remain within the prohibition. State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A., N.S., 340.

The power to sell land does not include power to mortgage it. Stokes v. Payne, Kennedy Co., 58 Miss. 614, 38 Am. Rep. 340. The power to sell under the will does not include power to exchange. Columbus Banking Ins. Co. v. Humphries, 64 Miss. 258, 1 So. 232. It is also held that where the grantee in a deed giving him a life estate with power to sell in fee in his lifetime made voluntary conveyance to his wife, the wife does not receive the fee title thereof, as between husband and wife, although a legal consideration for the conveyance passed. Jones v. Stamps, 120 Miss. 60, 81 So. 651.

Just how it can be considered that the power given Mrs. Gertrude H. Faison, under the will, can be brought into the case, where no attempt was made to exercise such power by her, is difficult to see. It appears affirmatively in the testimony quoted above that the parties clearly understood at the time that a deed from Mrs. Faison, under the will, would not divest the junior mortgagees and the probated claims, and consequently would be of no value. The proceeding was intended to foreclose the deed of trust in favor of bondholders, and, of course relied upon to divest the title out of all persons, so that buyer would get title at such sale; but so far as this complainant, Ann F. Gordon, is concerned, it is absolutely futile, and divests her of nothing.

Furthermore, it is shown by the record that Mrs. Gertrude H. Faison, in making agreements with Wirtz and Watson in regard to the foreclosure, occupied an inconsistent position, being trustee under the will, guardian for the minors under the will, and as executor under the will, being under duty to do everything to promote the interests of the creditors of the estate, rather than to promote her personal interest, at the expense of the fiduciary relation which she occupied. All of the parties knew, as the evidence shows, of this relationship, and knew of her duties as executrix of the will, and of her duties as guardian of the minors. Consequently all parties to the agreement, having beneficial interest, were parties to an inequitable, inconsistent and illegal agreement, under which Wirtz was to buy the property as cheaply as possible; and if he became the purchaser, he was to sell to Mrs. Faison, for the benefit of herself, and as expressed in some of the testimony, the estate; she to take bankruptcy in the meantime, and to receive personal consideration for her consent and agreement thereto to be furnished during the year 1933, in carrying her crop on the lands involved in the sale.

Executors and administrators are trustees for the benefit of creditors and distributees, so that on selling the land to pay debts, they are bound to obtain as high a price as possible, and cannot directly or indirectly be purchasers thereat. McGowan v. McGowan, 48 Miss. 553; see, also, Alexander v. Hancock, 177 Miss. 590,171 So. 544; Mississippi Digest, title Executors and Administrators, 144; Buckingham v. Wesson, 54 Miss. 526; Belt v. Adams, 124 Miss. 194, 86 So. 584; Mississippi Digest, title Executor and Administrator, 133; Columbus Banking Ins. Co. v. Humphries, 64 Miss. 258, 1 So. 232; Richardson v. Biglane,81 Miss. 676, 33 So. 650; Pearson v. Moreland, 7 Smedes M. 609, 45 Am. Dec. 319; Grant v. Lloyd, 12 Smedes M. 191; Mississippi Digest, Executors and Administrators, 380; Liddell v. Strong,183 Miss. 805, 184 So. 432; Brandau v. Greer, 95 Miss. 100, 48 So. 519, 21 Ann. Cas. 1118; Heard v. Daniel, 26 Miss. 451; 28 C.J. 1154.

In Liddell v. Strong, supra, it was held that a guardian can have no divided interest in matters affecting a ward, the interest of the ward coming first; and that when a guardian finds himself so situated, "either personally or as trustee or agent for others, he cannot in vital particulars give undivided allegiance to his wards, his proper course is to forthwith resign his guardianship, turning over to his successor all the wards' estate and furnishing all the material information which he has which bears on the safety and preservation of the estate, and, failing to take such course, he is liable for all foreseeable proximate consequences."

It was held in that case that guardians of minors, "who had obtained authority to deposit guardianship funds in bank of which he was cashier was liable to estate for loss resulting from failure to withdraw funds from bank prior to failure of bank when he had knowledge of danger to deposits, as against contention that failure to withdraw guardianship funds was excused because withdrawal would have constituted breach of duty to other depositors of bank as cashier."

In the course of the opinion, 183 Miss. at page 813, 184 So. at page 433, the Court said: "The difficult and embarrassing position in which appellant found himself in the gloom of the dark days then lowering upon the country excites a natural sympathy, but it must be repeated, as has in one form or another so often heretofore been declared, that the wards in a guardianship come first — a guardian can have no divided interest." Citing Brandau v. Greer, 95 Miss. 100, 48 So. 519, 21 Ann. Cas. 1118; Heard v. Daniel, 26 Miss. 451, 452, 455; 28 C.J. 1154. "Whenever a guardian finds himself so situated that, because of an adverse interest, either personally or as a trustee or agent for others, he cannot in vital particulars give undivided allegiance to his wards, his proper course is forthwith to resign his guardianship, turning over to his successor all the wards' estate, and furnishing at the same time to his successor all the material information which he has which bears upon the safety and preservation of that estate. Failing to take that course, he must be held to all the foreseeable proximate consequences of such failure."

The appellants, in their cross-bill in answer to the bill of complaint, of Ann Faison Gordon, undertook to justify the appointment of the guardian ad litem, and the waiver of process for the minors by such guardian; and to contend that the sale was legal and divested the minors of their interest. It also set up that the appellant, Wirtz, had made certain improvements, upon the premises, and that if the foreclosure decree was set aside, he should be allowed the value of the improvements.

Thereafter an amended cross-bill was filed, seeking to bring in other parties who were not parties to the original bill, but who had equities or some rights in the mortgage securing the bonds under the deed of trust executed by E.H. Faison and Gertrude H. Faison. Here they also seek to invoke the principle that there was no tender of the debt due under the mortgage by the complainant, and that that was a condition necessary to entertainment of the bill.

As stated above, Wirtz was a party to an inequitable and illegal agreement, by which he was to buy the property at the least possible price, and if he were the successful bidder was to resell to Mrs. Faison for the benefit of the estate, provided she could secure during the course of the year sufficient money to pay off the bonds which had been secured by the deed of trust, that were held by Wirtz. By this agreement he was to furnish her $1,000 with which to complete the crop then started on the premises. If she could not secure the money she was to yield him possession, and give him a certain share in the crop named in the agreement.

Wirtz well knew the desperate situation of Mrs. Faison in regard to securing financial assistance; and it was his intention and purpose in making the agreement to secure for himself, at all events, full payment for the bonds held by him, amounting at the time of the filing of the bill to $21,000, but which, at the time the proceedings were instituted here, had been increased to $69,000 by securing bonds from other bondholders.

Wirtz bid for the property the nominal sum of $5,000; the property was worth, according to the evidence in the case, and the finding of the chancellor, the sum of $150,000, of which value approximately $24,000 in improvements had been made by Wirtz — the cross-bill stating that he had improved it in the amount of $23,000. The chancellor, in granting the relief sought by the complainant, awarded to Wirtz the lands which contained $24,000 of improvements, of which a gin plant was susceptible of being moved from the premises. He held that Wirtz was not a purchaser in good faith, but that inasmuch as the improvements made by him on the property, exclusive of the gin plant, amounted to $10,000, that the value thereof had been increased in the amount of $10,000 by such improvements; he rendered a decree charging the lands of complainant and her sister each with one third of the $10,000, directing that the land be sold if this sum were not paid within the time fixed by the decree.

As stated above, Wirtz was the principal beneficiary of the illegal and inequitable agreement, he having dictatorial power, practically, to fix the terms of the agreement; and technically he was guilty of entering into an illegal agreement by the executor and guardian contrary to the duties of her trust. Consequently, Wirtz is guilty of inequity, and is in no position to apply the dictum that he who seeks equity must do equity. This maxim will not be applied if it would result in an act contrary to public policy. Toler v. Love, 170 Miss. 252, 154 So. 711; 19 Am. Juris. 324, Section 469, note 20; Heflinger v. Heflinger,136 Va. 289, 118 S.E. 316, 32 A.L.R. 1088; Simmons v. Simmons, 57 App. D.C. 216, 19 F.2d 690, 54 A.L.R. 75. The maxim that he who seeks equity must do equity will not be applied for the purpose of defeating equity. Germania Life Ins. Co. v. Bouldin,100 Miss. 660, 56 So. 609; Woods v. Campbell, 87 Miss. 782, 40 So. 874.

Consequently the appellant, Wirtz, was not entitled to any relief on the cross-bill, because of his inequity in making the agreement, and bidding the land in thereunder, for a mere nominal sum, grossly shocking to the enlightened conscience. The finding of the chancellor that Wirtz was not a purchaser in good faith is overwhelmingly demonstrated by the facts in this cause.

It is provided in Section 1474, Code of 1930, that: ". . . a defendant shall not be entitled to such compensation for improvements or taxes unless he claims the premises under some deed or contract of purchase acquired or made in good faith."

It will be noted from this statute that a defendant shall not be entitled to such compensation for improvements or taxes unless he claims the premises under some deed or contract of purchase acquired in good faith. This section is applicable to the chancery court because equity follows the law, and it is a guide for all cases as to how the improvements, rents and profits shall be set off against each other. A party who goes into possession of property where his claim is not in good faith, as understood in the law, can recover nothing by virtue thereof.

Wirtz knew all the facts, and was in the agreement which was reached after long discussion; while he may have been mistaken in the law, he could not avail of that mistake, if such it be. If the defendant knows the facts, but mistakes the law, he is not, in case the law be against him, a bona fide purchaser. Holmes v. McGee, 64 Miss. 129, 8 So. 169. "A defendant in ejectment cannot claim for improvements, unless, when he placed them on the land, he was claiming under some deed or contract of purchase made or acquired in good faith. It is not sufficient that at the time he honestly expected that the owner, whose title he recognized, would eventually give him the land." Thomas v. Thomas, 69 Miss. 564, 13 So. 666.

Of course, the same rule applies in equity as applies in an ejectment suit, the maxim that equity follows the law being applicable, and the chancellor so held in his opinion.

The measure where value of improvements are allowable in this state is shown in Hicks v. Blakeman et al., 74 Miss. 459, 21 So. 7, 400, where it is said: "The amount that the market value of the land is enhanced by the improvements made thereon, in good faith, by one claiming under the void conveyance of a guardian, is the proper measure of his recovery on account thereof." Citing Nixon v. Porter, 38 Miss. 401; Wilie v. Brooks, 45 Miss. 542; Clark v. Hornthal, 47 Miss. 434; and Massey v. Womble, 69 Miss. 347, 11 So. 188.

Another inequity committed by the appellant, Wirtz, and the trustee, Hachmeister, was in agreeing and consenting, and acting on the agreement, which deprived other bondholders of their fair pro rata of the proceeds of the sale of land under the deed of trust. The provision in the bonds was that each of the bondholders was to have equal rights, and they bought the bonds relying upon this right. The manipulation of the sale, so as to acquire property valued at least at $100,000, and on which the loan value, prior to the sale, had been sufficient to secure more than $100,000, of obligations, at a nominal sum, is shocking; for a party to seek to invoke the principle that the complainant herein could not have relief until she paid not only what the buyer himself had invested in the property, to make him whole, but to take the additional burden of paying off all the indebtedness against the property, although her property would only be liable for its one third.

It is not necessary, whenever an accounting is to be had, to tender money into court. In Aust v. Rosenbaum, 74 Miss. 893, 21 So. 555, it is held that if the object of a bill be to redeem, and not cancel, a mortgage, a previous tender of the sum due is unnecessary where complainant is unable to know, because of defendant's fault, what sum is due upon the mortgage debt. The court quoted at length from the opinion in Casserly v. Witherbee,119 N.Y. 522, 23 N.E. 1000, in which the doctrine was laid down, with other cases from the New York court, that it is not necessary to tender the amount where the mount of an accounting is unknown, or where an accounting is unnecessary. And then the Court said [74 Miss. 893, 21 So. 558]: "There must be exceptions to the rule, unless justice is to be sacrificed now and then to technical rules, and rules of pleading at that. How can one tender where redemption is sought by an infant, who has nothing with which to redeem except the mortgaged estate, and when it appears that the mortgaged estate is largely in excess, in value, of the debt secured, and that a sale of only a part of such estate will suffice to pay the creditor's demands? This presents an exceptional case to the rule, and this very case has been recognized as an exception, thereby demonstrating that the rule is not inflexibly rigid. See Johns v. Smith, 56 Miss. 727. So, too, in cases where an accounting is shown to be necessary to ascertain the amount due, and especially where the amount is not known to the party seeking redemption, and cannot be ascertained by him, because of the fault of his adversary in refusing to furnish information which it was his duty to furnish, an exceptional case is presented, whose peculiar facts take it out of the general rule; for shall any man be required by any rule to perform an impossible act? And this last is the case in hand."

So here, at the time Wirtz took possession, the complainant was an infant, unable to secure her rights, and who could not determine, from any data in her possession, what amount was due by Wirtz. What she sought here was to have her rights determined, and then to have whatever was due her for the use and occupancy of her property awarded her.

It was likewise held, in Nestor v. Davis, 100 Miss. 199, 56 So. 347, in the fourth syllabus: "While ordinarily it is necessary for a complainant to tender with his bill seeking to redeem property the amount due under his mortgage, yet this principal has no application, where an accounting has been shown to be necessary to ascertain the amount due, and especially where the amount is not known to the party seeking redemption and cannot be ascertained by him because of the fault of his adversary in refusing to furnish information which it is his duty to furnish."

Furthermore, whenever parties in litigation are so situated that one is at a disadvantage as regards the other, or when the peculiar facts of any case make it appropriate, a court may refuse to apply the maxim and grant relief conditioned upon complainant's doing such equity as the Court finds necessary after a full hearing of all the facts. Morgan v. Collins School House, 160 Miss. 321, 133 So. 675; McDonald v. Sanford, 88 Miss. 633, 41 So. 369, 117 Am. St. Rep. 758, 9 Ann. Cas. 1; Southern Home B. L. Ass'n v. Tony, 78 Miss. 916, 29 So. 825; Purvis v. Woodward, 78 Miss. 922, 29 So. 917; 21 C.J. 178, Section 157.

I am, therefore, of the opinion that the Chancellor's finding was correct, except that he should not have allowed Wirtz for any improvements on the place, under the facts in the case; it was inequitable to do so. It is fundamental that a party cannot profit by his own wrong. Our Legislature, in the section above cited, fixed the method of determining accounting for rents and profits on the one hand, and the improvements and betterments on the other, and expressly declared the legislative policy that parties should not have the benefit of improvements unless they were on the premises in good faith, under some contract.

There is a fundamental difference in the contract of mortgage and a deed of trust. Each is governed by its terms as to the rights of parties to it. After condition broken, a mortgagee has a right to enter and use the land until his debt is paid. Under a void sale under a deed of trust the buyer at said sale has no right to enter; but if he does he is accountable for rents and profits. The right of a trustee, before sale is only to have such possession as may be necessary to make the sale — he has not the right to use the land.